The Determination of
Child Custody in the USA

Introduction

The maternal presumption for custody remained firm for many decades in the United States, challenged only after the divorce rate began its dramatic rise in the 1960's. Spurred on by fathers' claims of sex discrimination in custody decisions, constitutional concerns for equal protection, the feminist movement, and the entry of large numbers of women into the workforce, most states had substituted the standard of the "best interests of the child" for the tender years presumption by the mid 1970's. For the first time in history, custody decision-making was to be rooted in a consideration of the child's needs and interests, rather than based simply on the gender of the parent.

This historic shift to the best interest standard prepared the path for the next trend, that of joint custody after divorce. Rather than awarding sole custody to one parent and limited visiting rights to the other, joint custody was intended to preserve the parental role and status of both parents after separation by enabling continued parental involvement after divorce. The concept of joint custody emerged originally from a groundswell of voices of fathers in the early 1970's who objected to being disenfranchised from their parental roles and rights, simply because divorce had occurred. The growing interest in shared custody was enhanced by several parallel developments. After focusing almost exclusively on mothers and children for decades, the child development field began, in the early 1970's, to study the father's contributions to the development of the child. Second, gender roles within families began to shift, as larger numbers of fathers participated more fully in child-rearing responsibilities, particularly in dual-career families.

At divorce, many such fathers insisted on a greater role in their children's lives after divorce. And third, as divorce engaged the attention of the nation, numerous research and clinical studies documented the sense of loss and alienation experienced by fathers and children in traditional custody arrangements after divorce.

In joint custody arrangements, each parent retains certain rights and responsibilities with respect to the post-divorce parenting of the children. Considerable variation exists between states in the definition of joint custody, and under what circumstances it will be permitted and denied. With joint legal custody, both parents retain power to make decisions about their children, although in many states, the particular decisions to be jointly made must be specified in order to preserve the authority. Joint physical custody statutes are intended to indicate that the child lives with both parents on some shared basis, each parent assuming day to day parental responsibilities.

Joint physical custody statutes do not define how much time the child resides with each parent, and are not interpreted as dictating a 50/50 residential time sharing. Thus, parents may elect joint physical custody, but the child may spend anywhere from 25% to 50% of his time with one of his parents, and the remainder with the other. The intent, for many fathers seeking joint physical custody language, is to avoid the label of "visitor" in the child's life, and to have the child "live" in that parent's home more than the usual limited visitation time.

The legal trend over the past decade has been to favor shared parental legal authority over shared residential custody. While in most states, parents can agree to both or just one of these legal arrangements, the most common arrangement remains that of joint legal custody and sole or primary physical custody to one of the parents, most often the mother. In very unusual circumstances, with a history of extreme conflict over educational, medical, or religious values, parents may have joint physical custody, but one parent is assigned sole legal custody.

Other legal custody arrangements that can be ordered at divorce include split custody, in which one or more children live with one parent while the remaining live with the other parent, and divided custody, also referred to as alternating custody. This form of custody allows each parent to have the child for alternating blocks of time, often every year or two years, with reciprocal visiting rights. Such legal arrangements are much less common. Judges are reluctant to order split custody, in particular, because of a firm belief that siblings should not be separated, but research indicates that such arrangements evolve informally between parents in the years after divorce, particularly with older children.

Despite changes in the law and social custom, custody arrangements remained remarkably stable over the past three decades. National estimates in the 1970's and 80's indicated that women had sole custody of the children approximately 85% of the time, and men retained sole custody 10% of the time, with the remaining 5% spread over a variety of custody arrangements, including grandparent, split or joint custody. More recent data sets indicate that father custody figures may be closer to 15%.

All these data are based on census and survey data, rather than court records, and reflect actual physical living arrangements.

In states permitting or encouraging joint legal and physical custody arrangements, it is difficult to determine what percentage of parents have joint legal or physical custody, as this data must be obtained from individual divorce decrees.

There is evidence that the incidence of joint legal custody rises dramatically when statutes permit this arrangement. By the late 1980's, joint legal custody had become normative in California, appearing in 75% to 90% of decrees. The incidence of joint physical custody in divorce decrees also increases after enabling legislation is passed, but at a lesser rate. In three California studies that obtained data regarding physical custody from final decrees, joint physical custody language appeared in 20%, 37%, and 60% of the cases, respectively. Variations can be attributed to the educational level of the sample, the use of mediation, and local judicial practice or preference. In other states utilizing different statutory criteria for joint physical custody, or where the social and judicial climate is less accepting of shared parenting, the incidence of formal orders with joint physical custody language may be quite low. Regardless of setting, the inclusion of such language in the court order is independent of actual residential arrangements.

Because joint physical custody is often not in reality a strict 50/50 time sharing, the incidence of actual shared parenting arrangements is difficult to determine. Most researchers have defined joint physical custody (or dual residence) as between 30 and 50 percent of time spent with one of the parents. Using this framework, between 17 and 34 percent of families shared some form of physical custody in the mid-1980's in a jurisdiction (California) encouraging joint custody.

However, since these are not random sampling studies, the actual rates may be lower, and these trends in California may not be reflective of other more judicially conservative states.

Regardless of location, there is a higher incidence of shared residence among more educated parents. Extrapolations from several studies of visitation in other states indicate that from 12 to 24% of children may be visiting their fathers frequently enough to be considered in shared residence arrangements. Unlike maternal custody studies of visitation, which have shown a drop off in visit frequency over time, there appears to be less change in contact in shared residential families in the first several years after separation, particularly when the arrangement is close to 50/50.

(Continued....)