Despite hopeful signs that we will ultimately integrate the findings and theories of those who study conflict, violence, and abuse, tensions among and between them continue to have a direct impact on the family court system. In the context of custody and visitation, the explicit preference that children maintain significant contacts with both parents after separation and divorce and the tendency to see marital dysfunction as the product of conflict rather than abuse have led specialists in partner abuse to accuse family courts of ignoring abuse and its consequences for both adults and children.

The 1970s saw increasing divorce rates, a growing fathers' rights movement, a new body of popular literature favoring shared parenting, [FN11] and a new body of social science research assessing the impact of divorce on children. [FN12] The literature and the data on which it relied either asserted or was interpreted to assert two propositions, one negative and one positive. The negative proposition was that children who lose contact with their noncustodial parents after divorce are likely to experience problems. The positive proposition was that children resist the negative emotional fallout of their parents' divorces most successfully when they have generous ongoing access to both parents. On the *277 strength of these propositions, state legislatures and family courts mobilized to support shared parenting through joint custody, "friendly parent" provisions, and generous visitation for noncustodial parents.

Joint custody and friendly parent provisions are intimately related. Joint custody legislation has taken a variety of forms. The weakest form simply makes it explicit that joint custody is an option for judges to consider. A much stronger form authorizes joint custody when either party requests it, even if the other parent is opposed. A third variety authorizes joint custody only when both parents are in agreement but makes the willingness of one parent to accept joint custody a factor in determining which parent should receive sole custody. This disadvantages the "unfriendly" parent, the one who was unwilling to share custody. Some legislation creates a presumption in favor of joint custody, and while parental disagreement may rebut the presumption, the legislation may then favor awarding sole custody to the "friendly" parent who is willing to share. [FN13] According to the Family Violence Project of the National Council of Juvenile and Family Court Judges, in 1995, 10 child custody statutes included a public policy statement concerning a parent's ability to allow the child an open, loving, and frequent relationship with the other parent. Eighteen states included such provisions in the list of factors a court must consider when determining the best interest of the child. [FN14] Even in states without joint custody or friendly parent language in their statutes, many judges act on the belief that shared access is best for children and sole custody is best awarded to the parent most willing to share the child. [FN15]

In this context, if judges, mediators, or family service officers interpret abuse as conflict and attribute violence to conflict rather than to abuse, they may well conclude that shared parenting is still both feasible and desirable. The parents just need to set aside their own issues and hostilities and focus on the best interests of their children. Mediators, guardians ad litem, custody evaluators, and judges confusing abuse with conflict may also conclude that the parents who oppose shared parenting are acting vindictively and subordinating the interests of the children to their own rather than expressing their legitimate anxieties about their own and their children's ongoing safety. Ironically, within the friendly parent framework, a mother's proper concern about her abusive partner's fitness to parent will negatively affect her chance to win custody, not his. At the same time, the abuser's willingness to share the children, which assures his ongoing access to his partner and allows him to continue to manipulate and intimidate her, will, within the same framework, make him appear the more attractive candidate for custody.

New research is eroding the basis on which joint custody provisions rest. Earlier studies of shared parenting, which tended to reach positive conclusions, used samples composed of couples who were highly motivated and *278 committed to making joint custody work for their children. [FN16] Beginning in the early 1980s, and swelling in volume as the decade progressed, new studies have emphasized the limitations of those early findings and have raised a series of questions. [FN17] The most recent studies conclude that there is no convincing evidence that joint custody is either more or less beneficial than sole custody for most children. [FN18] More important, from the perspective of this article, is the finding that shared parenting is contraindicated if the relationship between the parents is characterized by ongoing conflict. As Janet Johnston summarizes this research,
Substantial amounts of access to both parents ... and frequent transitions between parents are generally associated with poorer children's adjustment in ... those divorced families where there is ongoing high conflict and continual disputes over the children. Where there has been a history of repeated physical violence between parents, these children are likely to be the most seriously disturbed. [FN19]

A crucial next step for policy makers is to absorb these new research findings and embed them in the governing legal standards. At the same time, mental health professionals and legal actors in the family court system must absorb them into their practices and into their applications of current legal standards. Technically, no formal change in the governing legislation is necessary even in those states that have adopted a joint-custody presumption. The presumption can always be rebutted by a showing that joint custody is not in the best interests of the child. It serves a valuable educative function, however, when state legislatures or appellate courts sound a cautionary note, as some are beginning to do. [FN20] Joint custody should be an option if both parents support it and if they are capable of cooperation, but it should have no presumptive superiority, and it should be disallowed if the parents' relationship is chronically conflictual or if one parent has abused the other.

[FN12]. Particularly influential in this context was Judith S. Wallerstein and Joan B. Kelly, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE (1980).

[FN13]. For a more detailed discussion of these different options, see J. Schulman and Valerie Pitt, Second Thoughts on Joint Child Custody: Analysis of Legislation and Its Implications for Women and Children, 12 GOLDEN GATE L. REV. 538, 546-553 (1982).

[FN14]. The Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L.Q. 197, 201 (1995).

[FN15]. Joan Zorza, "Friendly Parent" Provisions in Custody Determinations, 26 CLEARINGHOUSE REV. 921, 923 (1992).

[FN16]. Janet Johnston, Children's Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making, 33 F.C.C.R. 415 (1995).

[FN17]. Were the beneficial outcomes due to joint custody itself, for example, or to the fact that parents managing shared parenting were more cooperative and psychologically healthier or better educated and wealthier? Should mental health professionals recommend, or courts order, joint custody when one or both parents oppose it? Id., at 416.

[FN18]. Id., at 421.

[FN19]. Id., at 421.

[FN20]. For an account of 11 states in which a cautionary note specific to cases involving domestic violence is sounded through legislation, see the Family Violence Project of the National Council of Juvenile and Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L.Q. 197, 200-201 (1995). California, the first state to adopt a joint-custody presumption in 1979, (Cal. Civ. Code § 4600.5(a) (West 1979)) repealed it in 1989 (Cal. Civ. Code § 4600(d) (West Supp. 1989)). Utah, one of the last states to adopt a joint-custody presumption, in 1988 (§ 30-3-10.2(1)), repealed it only two years later in 1990. For an account of the legislative histories in these two states, see Thronson v. Thronson (810 P.2d. 428 (Utah App. 1991)).