이혼 후의 공동양육법제에 대한 입법론적 연구

A legislative study on joint custody after divorce

During marriage, mutual trust, altruism, and proximity help to prevent opportunistic behavior by the parents, but after a marriage ends, these controls are less effective. The question of how best to foster cooperative behavior between divorced parents is a perennial one. Perhaps the real value of joint custody lies in encouraging bonding between parents and children after divorce. What formerly married parents may need is encouragement toward keeping their control issues under better control. A solution is to make the expected custody award independent of the parties' bargains and statements to the court. If, for example, joint custody is mandatory, then it will do the father no good to threaten that he will push for sole custody. Nothing will depend on his stated preferences. Similarly, if the parents cannot bargain away from joint custody before they go to court, then there will be no incentive to threaten custody in order to extract property. The point is that mandatory rules reduce strategic behavior and attendant costs. From the perspective of monitoring and bonding, a useful way to think of the preference for joint custody is that it assumes that two partly involved parents will invest more and better than one entirely responsible parent. Joint custody might also result in better child rearing. If parents expect that divorce is possible, and that sole custody will be awarded to the parent to whom the child is closest, they have an incentive to cut out the other parent in a struggle for the child’s affections. Thus the move to joint custody might reduce parental possessiveness and self-centeredness in child rearing. Joint custody also formalizes a more normal bond between ex-spouses. The rancor of a divorce may be less bitterly felt and remembered when one knows that a common tie will remain and cannot be ignored. The joint deliberation over the child’s future might also reduce the level of acrimony. This also will ease the pain of divorce for children. A joint-custody regime might help children especially in two ways. Under bonding theories, a spouse who would expect to lose custody under a sole-custody regime has greater incentives to bond with his family under joint custody. With greater family bonding, the likelihoodof a divorce declines. This would greatly benefit children, for whom a divorce is devastating. Under monitoring theories, joint custody usefully monitors the agency costs of misbehavior by a spouse who has been granted sole custody. The noncustodial spouse has thus a greater incentive to support his child on a move to joint custody.