Child Custody and Visitation
Rights Following Divorce 

By: Bradley Coates
Special to the Oahu Island News  

My law firm partner Greg Frey, the outgoing chair of the Hawaii State Bar Association’s Family Law Section, recently appeared with prominent child development psychologist, Joan B. Kelly, Ph.D. and a panel of experts at a Continuing Legal Education Seminar. Dr. Kelly has a list of extremely impressive credentials and is often known to express some unorthodox views on early childhood development. In particular, her ideas include many options on how post-divorce custody and visitation arrangements can be structured in a way to insure that a child’s early development is not negatively impacted by their parents’ divorce.

As a follow-up to last month’s column, I present a brief synopsis of Dr. Kelly’s philosophies on visitation and child custody. 1) It is imperative that young children are able to form strong attachments and emotional ties with both parents. 2) Very young children often prefer to play with dad instead of mom (i.e., they love to roughhouse and horseplay as this type of play will hit the high and low emotions). 3) If mom is supportive of “dad-kid” play, it will strengthen their bond; if not, it could hurt the bonding with both parents. 4) The best time to tightly bond fathers into the “family equation” is when children are young. 5) From seven months to two years of age,
children have a strict preference for parents and instinctive dislike for strangers. 6) From two to three years of age, children’s preferences come and go – alternating between their parents and rotating amongst other parental and family figures. 7) Overnight stays with individual parents are essential for children of all ages – this activity will foster nurturing and trust. Studies have shown that 56% of dads who didn’t get early overnight visits are very likely to lose all contact with the children. 8) Parents must work on “separation anxiety” when transiting children between households. 9) Relocation cases are particularly difficult. More than 25% of all divorcing couples relocate within three years following the divorce. 10) Finally and perhaps most important, parents must realize that the relationships with their children will slowly “die off” if they don’t see the child(ren) at least once every three to six weeks.

In order to implement Dr. Kelly’s view in the context of modern divorce courts, it may be necessary to rethink some of the terminology and philosophy which currently predominate the court system. The current terminology used in current divorce proceedings may actually be a stumbling block as divorce decrees award “custody” to one parent, and grant “visitation” to the other. The parent with more time, frequently the mother, often insists on being designated the parent with “sole legal and physical custody” and the parent with less time resents being relegated to the status of mere “visitor.” It would seem to be an extrapolation of Dr. Kelly’s philosophies that perhaps more cases should be resolved by an award of joint custody and the implementation of more frequent and balanced timesharing schedules.

It is interesting and important to note that many of Dr. Kelly’s views
are at odds with the current philosophies and procedures used to structure child custody and visitation by the Family Courts.

Dr. Kelly’s basic belief is that frequent (and even forced) contact between the children and both parents (including overnight stays) is essential even at the most early stages of child development. However, many authorities feel that continuity and stability, especially for infant children, are the most crucial factors in custody and visitation rulings.

Since Family Courts often follow this latter line of thinking in establishing visitation schedules, it is thought provoking to consider the fact that, if Dr. Kelly is indeed correct, we may
be harming children by establishing sole custody and/or limited visitation schedules. Perhaps a more compelling case for joint physical custody and maximum visitation schedules can and should be argued.

Bradley A. Coates, J.D., has been a practicing divorce attorney in Honolulu for over 20 years. He has been selected as Honolulu’s Best Divorce Lawyer and is the founder of Coates & Frey. Phone 524-4854 or visit www.coatesandfrey.com.