Parenting Plans vs. Custody


When people with children think about divorce, what do they fear most?  Custody.
Custody.  What an ugly word.  Does it mean ownership?  Does it mean possession?  “The suspect was taken into custody.”
The courts make orders for “custody and visitation.”  They name a “custodial parent.”
“Visitation.”  How insulting can it be that you are “awarded” “visitation” with your own children?
Two words go with custody: win and lose.  No, three words: win, lose and battle.  Custody battle.
There it is, right on your petition for dissolution of marriage: custody.  You have to choose what variety of “custody” to ask for, waving that battle flag at the spouse who will be served that petition.

It really doesn’t have to be that way.  A number of states have abolished “custody” and replaced that word with the realistic expression, “parenting plan.”

Those cowboys in Montana, going through divorce, work out parenting plans.  Those effete Easterners in Massachusetts work out parenting plans.  Those ranchers in Colorado have court forms that say Parenting Plans to define “Parental Responsibilities.”  Those gazers upon Russia in Alaska, divorced, have parenting plans, you betcha   Don’t mess with Texas, ‘cuz they have parenting plans. Those rugged North Dakotans, too.  Florida.  Georgia.  New Hampshire.  New Jersey. Tennessee.  West Virginia.  California?  No.

An attempt was made in 1989 to eliminate those inflammatory and possessory words, custody and visitation, from the California Family Code.  There was Senate Bill 1306 and Assembly Bill 1612.  Jay Folberg, professor emeritus and former dean of the University of San Francisco School of Law, wrote SB 1306.


Four more people died in a custody battle recently in Orange County.  In October a woman was killed in a custody exchange.  A cursory review of Register articles concerning deaths related to divorce in the past year shows more  mayhem:  “Suspect in slaying testifies;” “Man gets 15 years to life in slaying;” “Man gets life term in estranged wife’s killing;” “Man accused of killing wife, burning her body;” “Man accused of killing wife to keep kids;” “Jury selection begins in boy’s drowning;” “Husband arrested in standoff after wife’s killing.”

Then there were the attempts:”Costa Mesa man gets 17 years in prison for bomb, weapons case;”  “Suspect in Wife’s beating, kidnaping surrenders;” “Man accused of threatening pair during child exchange is arrested.”  This only in Orange County.   We have 58 counties in this state.

And the poignant article in December about the woman recovering still from the murder of her three children by their father six years ago.  We remember the horror of the boy set afire by his father in a motel in 1983, recalled last November as one of “The 50 Most Notorious Crimes in Orange County History.”

There was another Orange County case in 1989 when three boys were shot by their father (one survived, crippled) that became the occasion for a major change in court mediation protocols thanks to the efforts of domestic violence expert Mildred Pagelow with the mother testifying before a state senate committee.

An international and interdisciplinary organization of judges, psychologists, lawyers and others, The Association of Family and Conciliation Courts, has declared the treatment of children in family courts a “public health crisis.”    Founded in California in 1963 to improve the lives of children and families through the resolution of family conflict,.the California chapter recently noted in a “Declaration of Public Health Crisis” that an estimated half of  the state’s children, or 4,775,939, have been touched by or involved in the court system as a result of their parents’ actions–separation, divorce, guardianships, paternity actions, domestic violence, dependency actions.  One of every two children they estimate, are likely to be involved in a family court case.

Their resolution stated that “…the resources allocated to family law cases involving children do not reflect the ratio of family cases to the overall work of the court.  This is ineffective and ultimately unacceptable,” adding that 175 judges handle the half-million new filings every year, plus the older cases, and at least 459 judges are needed.

The board of the California chapter declared, “there is a clear and present danger to the public health of the children of this State based on our society’s failure to adequately address the impact of child custody proceedings upon children as a chronic, system-wide, statewide, public health crisis which impacts the previous, current and future generations of California’s most precious resource–its children.”

In 1996 there was an official committee, “Family Court 2000,” that was supposed to fix family law.  Now there is a task force named Elkins to try again, and Orange County member Judge Nancy Weben Stock said “the culture of divorce” will be changed.  One woman testifying last October to the task force said, “The system forces you into combat.”  One bit of culture the task force draft recommendations cite is to change the word “custody” to “parenting plans.”

That “custody” is a fighting word one can see from every newspaper headline using it–it always goes with “battle.”  The family law killings almost always occur in custody cases.  But in order to get a divorce in California, one must check a box asking that “custody” be “awarded” (after the battle, presumably) to one or both parents.  And two other words go with “custody” — “win” and “lose.”  Then one must also check a box referring to “visitation.”  How insulting is that?  If you do not have “custody” of your own children, you have “visitation.”  And if you do not live full time with your children, child support agencies refer to you as an “absent” parent.  One can see how the “culture of divorce” is one of aggravation and the fostering of hostilities.

What lawyering does to that mix is another aspect.  But people are opting out.  The statistics from the Judicial Council, the folks who run the courts of this state, show that 65% of people doing divorces in this state are doing so without lawyers–and that by the end of their case, 80% are without lawyers.

Will changing “custody” make a difference?  Psychologist say words do make a difference.  Twelve states, including Texas, Montana and Florida, have made the change to “parenting plans.”  But this, the Golden State, rejected that proposal in 1989.  And a retired appellate court judge, famous for his family law writing, said, “Don’t count on the legislature for anything.”  Initiative, anyone?


The Elkins Family Law Task Force submitted their recommendations to the Judicial Council April 2010.