Why Bristol Palin shouldn't get sole custody.

Why Bristol Palin shouldn't get sole custody.

Why Bristol Palin shouldn't get sole custody.

The law, lawyers, and the court.
Dec. 30 2009 2:19 PM

Why Bristol Palin Shouldn't Get Sole Custody

Levi Johnston deserves a chance to prove himself as a dad.

Bristol Palin and Levi Johnston. Click image to expand.
Levi Johnston and Bristol Palin

Bristol Palin wants sole custody of her 1-year-old son, Tripp, we learned when a judge refused her request to keep the proceedings closed. Judge Kari C. Kristiansen made the court filings public after Tripp's father, Levi Johnston, opposed closure, saying that Bristol's mother, who is of course Sarah Palin, "has a reputation for being extremely vindictive." ("Not that Bristol would ever be that way, nor that I would," he demurely added.)

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Bristol criticizes Levi for his willingness to air the dispute publicly, saying he's not accounting for the effect on Tripp. But does she really deserve points for asking the judge to smite her ex with a gag order? And in this drama of the Young and the Sultry, what has Levi done that warrants sole custody for Bristol at this early moment in a child's life? Nothing is the likely answer, according to the law of Alaska. And that's as it should be. Modeling for Playgirl doesn't make Levi a model for decorous fatherhood, but it's hardly enough to strip him of his right to help make decisions about his son's life, which is what sole legal custody for Bristol would mean.

That probably won't happen, because Alaska has a statutory preference for joint custody. As in most states, the legislature has instructed the courts to err on the side of shared parenting as long as doing so doesn't undermine the best interests of the child. This idea has become well-entrenched in a relatively short time. Until the end of the 19th century, courts favored fathers, who had the money and the power and the property rights. Then, for much of the 20th century, mothers had the upper hand because of the presumption that children needed them more during what courts called their "tender years." For a child under the age of 5, custody almost always went to the mother.

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But a few forces combined to knock down that rule in the 1970s and 1980s. The feminist argument that women can do men's work translated into a father's right to do the work of child rearing. As the majority of women got jobs out of the home, they couldn't make the argument that they were automatically entitled, as a group, to primacy in the nursery. At the same time, social-science literature started to show that children adjust better to divorce when both parents stay firmly rooted in their lives. They fare better in school, on average, and in their emotional development. "Not all divorces are hell," says Yale psychiatrist Kyle Pruett, who has a new book out, Partnership Parenting. "Lots of kids say things like, 'It was painful at first, but my parents came out of it better people, and I'm close to both of them.' "

For all of these reasons, the idea of severing ties to a dad who doesn't want to be a deadbeat has become anathema to policymakers. States have uniformly replaced the "tender years" doctrine with the directive that judges should award custody based on the best interests of the child, a standard that is gender-neutral. Alaska was part of an initial wave of states to favor joint custody explicitly as long as it didn't collide with a child's best interests. In 1982, the legislature amended its custody law to read: "It is in the public interest to encourage parents to share the rights and responsibilities of child rearing. While actual physical custody may not be practical or appropriate in all cases, it is the intent of the legislature that both parents have the opportunity to guide and nurture their child and to meet the needs of the child on an equal footing beyond the considerations of support or actual custody."

That doesn't mean state courts award joint custody in every case, as a perusal of recent Alaska Supreme Court decisions makes clear, family law expert Joan Heifetz Hollinger points out. When a father is chronically absent or an alcoholic or derelict about paying child support, or when he tries to prevent his ex-wife from moving to a different state without maintaining strong ties to his kid, the Alaska courts still award sole custody to the mother. They also sometimes award it to the father when it's the mom who's the deadbeat.

Implicit in these rulings is the recognition that divorce can be hell, especially when it spurs a fight all the way to state supreme court. When courts embrace joint custody too readily, especially if one parent strongly opposes it, the arrangement often falls apart over time, says Emory family law professor Martha Fineman. "The legal system has viewed joint custody as an easy answer to a very difficult question," she says. "Judges are asked to decide what is in the best interests of the child. But that involves predicting the future. How do you figure it out?"

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In a 1987 law review article, Fineman argued that the preference for shared parenting tilts too far toward fathers. "Men may be judged as parents by a different, much less demanding standard than are women," she wrote. "Combining work and child care is admirable when men do it, but neglect when women must balance both responsibilities."

Still, it doesn't make much sense to apply that feminist critique to Bristol Palin and Levi Johnston. Their baby is only a baby; as a father, Johnston hasn't had much chance to prove or disprove himself. In her court filing, Bristol goes after Levi by arguing that he "remains without a regular job or steady source of income. He has obtained money by selling stories to the media about his son Tripp, ex-fiance Bristol and the Palin family. … Recently he has engaged in modeling, including risque modeling for Playgirl magazine." OK, so Johnston isn't on his way to an investment-banking career. But Bristol's accusations hardly show that he's a bad father.

Bristol also accuses her ex of having "substance abuse issues" based on a truly excellent tweet: "anybody knows where I cna get some good WEED??" (See Gawker for screen shots.) But Levi says the Twitter account isn't his. And since Twitter impersonation is indeed a new media peril (even for me), I'd say Bristol will need better evidence.

The main advantage Bristol has in court is that she has taken care of Tripp since he was born, as Johnston acknowledges in his court filing opposing her custody petition. But here's where the difference between physical and legal custody comes in. The judge could deny Bristol sole legal custody but award her more time with Tripp. That would preserve Levi's role and allow the physical custody arrangement to evolve over time.

It's messy, of course, to expect parents to share decision-making authority while one of them does most of the day-to-day care. Judges often start by ordering counseling in hopes that exes can negotiate the pitfalls. In asking for shared custody, Johnston promises to "coordinate with Bristol in all matters" involving Tripp's care. He also says that he hasn't taken care of the baby more often because he hasn't "been afforded sufficient access," which seems plausible given the scrapping between the Palin and Johnston families.

Denying Levi Johnston's shared legal custody of his son, at this point, would be premature and out of step with the idea of encouraging dads to play a real part in their kids' lives. If he doesn't come through for his son and joint custody in fact devolves into maternal custody, Bristol can go back to court later. But for now Levi deserves the chance to keep his promises to the judge and to Tripp.

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