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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

Children and Divorce: Overview and Analysis
Richard E. Behrman Linda Sandham Quinn

Custody and Visitation

Because the well-being of a child is critically dependent on parenting received from adults throughout childhood, the issues of custody and of continuing relationships with the noncustodial parent after divorce are of paramount importance (see the article by Thompson). Historically in the United States, custody decisions by colonial courts, following English legal doctrines, were based on a strong paternal preference. This gradually changed over time. By the 1920s, a strong maternal preference was the presumption on which custody decisions were made, and this has continued for many decades (see the article by Kelly).

As Kelly and Furstenberg discuss, this shift in preference to the mother reflected and was reinforced by a number of societal changes. These included a gender-based division of family responsibilities in which the father was viewed as the wage earner and the mother was viewed as the child nurturer, primarily as a consequence of the industrial revolution, which caused fathers to seek work away from home; an improvement in the legal status of women; psychoanalytic theory arguing for the unique role of a mother as love object; and research on the development of infant attachment to mothers.

The maternal presumption for custody remained firm until the 1960s and 1970s when there began a transition to gender-neutral laws (see the article by Kelly). This change was influenced by the entry of large numbers of women into the work force, the gradual realignment of some gender roles within the family, the increased divorce rate, fathers' claims of sex discrimination in custody decisions, the feminist movement, and psychological research on the importance of a child's attachment to both parents and the father's continuing contribution to his child's development. Kelly further points out that the idea of basing custody decisions on the child's needs and interests is a relatively new one that emerged about 20 years ago and eventually became embodied in the "best interests" of the child standard. Subsequently, support for the related idea of awarding joint custody to both parents evolved rapidly so that, by 1991, almost all states had recognized this latter concept in some form.

The prevailing standard for courts to determine custody is the "best interests of the child." We concur with Kelly that it is the most appropriate legal standard for making decisions in custody disputes because it is "centered on children's developmental and psychological needs rather than parental demands, societal stereotypes, or legal tradition." Under this standard, there is a case-by-case determination of the best way to meet the unique needs of each child. This process is also potentially responsive to changing social or legal trends outside custody law. For courts to make the best custody judgment with respect to the child's needs, this standard should employ multiple variables about the family, such as information about the loving and emotional relationships between parents and child, information about the parents' mental and physical health, the child's age and developmental stage, and the pattern and quality of the primary caretaking arrangements. Unfortunately, this approach can result in a lack of uniformity from one case to the next about the weight given to these different variables and how to take into account children's changing developmental needs. However, on balance, the advantages of using "the best interests of the child" standard appear to outweigh the disadvantages of relying on a single more uniform standard such as a determination of the "primary caretaker" during the marriage (also see the articles by Carbone and by Thompson).

Exactly what custody arrangements are being decided upon and implemented in divorce decrees is difficult to determine nationally because of considerable variation in definition of legal, physical, and joint custody among the states and difficulty in collecting data from individual divorce decrees (see the article by Kelly). Joint legal and sole maternal physical custody is probably the most common legal arrangement, followed by awarding sole legal and physical custody to the mother. Only 10% to 15% of divorced fathers have their children living with them more than half of the time. Thus, mothers continue to be primarily responsible for their children during marriage and after divorce, although shared physical custody arrangements and paternal visitation time are increasing.

The majority of these arrangements are made by private agreement between parents when parents are unable to agree on their own, and nonadversarial mediation is increasingly being utilized. Research does not support the concern of some commentators that mothers are systematically disadvantaged in such forums (see the articles by Katz, by Kelly, and by Carbone). Mediation has significantly reduced the use of adversarial proceedings with their high financial costs and often substantial disruption of the lives of children and parents. Kelly points out that, at whatever level custody decisions are made, they are subject to powerful statutory, judicial, cultural, educational, and research influences. Efforts to educate parents, attorneys, and judges about the impact of divorce and conflict on children and the needs of children for continuity in the relationships with fathers and mothers should be priorities, even though the effectiveness of such efforts is unknown.

As mentioned, access of the noncustodial parent, usually the father, to the children through visitation has increased over the past two decades. Although no general relationship has been found between visit frequency and lack of the adjustment problems of children to divorce in the near term, some studies suggest that continued involvement of fathers with their children after divorce is beneficial to the children under certain circumstances (see the articles by Amato and by Thompson). There is, in addition, a definite economic advantage to continued paternal involvement as it is associated with an increased likelihood of payment of child support. More research, however, is needed on the long-term effects on children of continuing contact with the noncustodial parent.

After the divorce decree and custody award are final, modifications of child custody and visitation arrangements are sometimes needed to adapt to the changing circumstances of parents, and to the changing developmental needs of children, including their own wishes. Adjustments to custody and visitation arrangements should be able to be made in a timely and inexpensive manner. Custody and visitation arrangements are obviously in the best interest of children when they facilitate effective coparenting.

Mediation should be widely available and mandatory, with certain exceptions, as the initial step for all parents disputing or modifying child custody and access arrangements before continuing adversarial proceedings, but settlement of the disputes via mediation should not be mandatory (see the articles by Katz, by Carbone, and by Thompson). Mediation results in 50% to 75% settlement rates, and the costs are substantially less than with litigation. Those who mediate are more likely to reach an agreement than those who do not mediate (which, in part, reflects self-selection), and both parents are more likely to be satisfied with the agreement than those who litigate. However, exceptions to required mediation are needed for those who are unable or afraid to negotiate on their own behalf, such as women subjected to or at risk of domestic violence, families in which there has been child neglect or abuse, parents who are substance abusers, and parents who are mentally incapacitated. Racial, ethnic, cultural, and socioeconomic factors also need to be taken into consideration in structuring fair and effective mediation policies, procedures, and safeguards. Further, mediators (including attorneys) need specialized training and experience in divorce and custody matters, in assessing domestic violence, and in the process of mediation itself.

Mediation up to this point has not generally been available to resolve the financial disputes of divorce, with most states requiring that financial matters be settled in a separate proceeding. However, as Katz points out, with the adoption of federal guidelines for child support by states, the custody and financial conflicts become more closely linked. These guidelines also reduce the potential for bargaining inequities in which women may feel the need to reduce their child support demands to avoid losing custody. Simple support matters might also lend themselves most appropriately to the mediation process.