A rebuttable presumption of joint physical custody

When push comes to shove what guides the evaluator and the court is the so called "primary parent" principle that rests on the Goldstein, Freud & Solnit (1973) "psychological parent" doctrine.
 
The test to determine the primary parent is essentially a checklist of parental tasks ordinarily performed by the parent who has fulfilled the traditional role of homemaker. Duties indicative of a primary parents rank are: preparing and planning of meals, bathing and dressing; cleaning and care of clothes; medical care including trips to doctors; interaction with peers; etc.
 
In an effort to apply psychoanalytic and attachment theory to legal issues involving the placement of children, Goldstein, Freud, & Solnit (1973) introduced the term the "psychological parent". They asserted that children have only one psychological parent and recommended that this psychological parent should retain sole custody. They argue that authority over a child's life needs to be clearly allocated to one parent, and that children suffer painful loyalty conflicts if they maintain contact with two parents who are not in a harmonious relationship with each other. They recommend that the power to decide whether the child should have contact with the outside parent should be left entirely in the hands of the custodial parent.
 
Central to the authors' thesis is the claim that a child's development depends upon the continuity and character of his or her relationship with the adult the child perceives as his or her parent, and this perception, rather than the fact of biological parenthood is the basis of their relationship. The authors describe this adult as the child's psychological parent. They stress that biological or natural parenthood is not in itself a reason for the child's emotional attachment to an adult. Rather, they point out that a biological parent becomes a psychological one only from day-to-day interaction companionship and shared experiences.  In their view, it is this day-to-day interaction that defines parenthood; since the biological tie does not in any way guarantee the psychological one, it is not very important. Indeed the authors claim that natural parenthood confers no special right.

Psychological parenthood that may or may not coincide with biological parenthood is their focus, so much so that they continually characterize a birth certificate as an allocation, implying that it is no more than a trifling record-keeping device. The authors propose that once such a psychological relationship is formed it should not be disturbed (except in the extreme cases of abuse or neglect).

It will be noticed that the author's statute presupposes the existence of but one psychological parent following divorce. This is because Goldstein, Freud & Solnit are certain that an inevitable consequence of divorce is parental disharmony and thus one parent must bow out, paradoxically to safeguard the child's relationship with the other parent. Their solution is that custody be awarded to only one parent with whom the child will maintain a continuous, day-to-day relationship and emotional bond, and that the non-custodial parent be stripped of his or her legal rights to parent the child:
 
Once it is determined who will be the custodial parent, it is that parent, not the court, who must decide under what conditions he or her wishes to raise the child. Thus, the non-custodial parent should have no legally enforceable right to contact with their child, and the custodial parent should have the right to decide whether it is desirable for the child to have such visits.
 
Moreover, the authors are quite clear that contact with the non-custodial parent, even if allowed is not worth much. As they readily, even blithely acknowledge, a visiting or visited parent has little chance to serve as a true object of love, trust, and identification, since this role is based on being available on an uninterrupted day-to-day basis.
 
So much for the non-custodial parent.  But what if both parents are equally acceptable? How then to determine the issue of residence? In such a case, the authors propose a judicial drawing of lots... might be the most rational and least offensive process for resolving the hard choice.
 
While Goldstein's Freud's & Solnit's (1973) work has been debunked it continues to have an influence.    
 
Regarding the Family Court's application of the primary caretaker standard to determine child custody, Warshak (1992) states: ".... Is the primary caretaker the parent who does the most to foster the child's sense of security, the person to whom the child turns in time of stress - the role most often associated with mothers? Or is it the parent who does the most to promote the child's ability to meet the demands of the world outside the family and to make independent judgments - the role most often associated with fathers? We really have no basis for preferring one contribution over the other. Both are necessary for healthy psychological functioning."
 
"Contemporary attachment theory has abandoned the notion of monotrophy -- the idea that children have a biological need to develop selective attachment to just one person. The notion that children have only one psychological parent has been thoroughly discredited by a large body of evidence that has demonstrated that infants normally develop close attachments to both of their parents that this occurs at about the same time (approximately 6 months of age), and that they do best when they have the opportunity to establish and maintain such attachments.  These attachment bonds which meet different needs of the developing child are not interchangeable one type of attachment cannot typically make up for the absence of the other." (Warshak 2000)

 A rebuttable presumption of joint physical custody. It's about children. It's about time.
 
Yuri Joakimidis
 
Joint Parenting Association