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

The Determination of Child Custody
Joan B. Kelly

How Are Custody Arrangements Decided?

Decisions regarding custody arrangements range along a continuum from the very informal, those agreements reached privately between parents, to those decided through the most formal procedural process, by judicial determination following trial. Parents theoretically have the most control over the outcome of their private agreements if they each participate fully in the decision making. In contrast, parents have the most uncertainty and least control regarding the custody arrangement when the decision is made by a judge.

Private Agreements

The notion of parents making private decisions regarding custody and visitation is an appealing one, from both a psychological and an economic viewpoint. Parents can discuss their children's particular needs and reach agreements reflecting those needs, parental desires, and family values, and they can do so without depleting their economic resources. Two California studies indicate that at least 50%35 and as many as 68%41 of parents make private decisions between themselves about custody and visiting. In the first study, an additional 30% settled these issues after further negotiation.

Although private decision making regarding custody and visitation can be advantageous for parents, one of the major disadvantages of this approach is that parents often make these important decisions without full knowledge of the options available to them and without detailing plans for the long run.41 For example, some parents base their custody agreement on the cultural assumption that the mother will have physical custody of the children, when, in fact, other options are available. In addition, many parents avoid discussion of the details of visitation because of fear of conflict. Educating parents regarding the options available to them and how to plan for the long term would be very useful to those parents who make private decisions.


When parents are unable to settle custody and visiting arrangements on their own, other nonadversarial forums are available. Some parents turn to trusted advisors or decision makers outside the legal system—including extended family members, the clergy, or psychotherapists—for assistance. In the past decade, another dispute settlement option, custody or comprehensive divorce mediation, has become more widely available. In mediation, decision making remains with the parties. The role of the mediator is to assist parents in reaching mutually acceptable agreements. In contrast to adversarial proceedings, mediation emphasizes cooperative problem solving and addresses the needs of all family members.51-53

Five states54 now mandate mediation as a first step process in attempting to resolve custody or visiting disputes. As of 1991, court-connected custody mediation was available in seven additional states on a discretionary basis or for specified circumstances.54 Strong objections to mandatory mediation have been voiced in feminist jurisprudence and by some feminist groups.37,55,56 Mediation is perceived by them as dangerous and disadvantageous to women, based on the belief that women in our society do not have sufficient power and resources to represent their views adequately in mediation. However, a growing body of mediation research does not support these claims. Studies of court-related custody mediation57 indicate very high levels of satisfaction among both men and women, even when the agreements reached do not reflect their most highly desired outcome.57-60 Women are significantly more likely than men to report that mediation gave them an opportunity to express their views57,59 and increased their confidence in their ability to stand up for themselves with their ex-spouses.59 The vast majority of women indicate a willingness to use mediation services again to resolve disputes.59 Further, research thus far does not support the claim that women are either forced by mediation to give away custody or primary care "entitlements"61 or disadvantaged financially by the strategic use of custody conflicts.35 (See the article by Katz in this journal issue for a further discussion of mediation.)

Adversarial Processes

At a more formal level of decision making in custody disputes, parents must use the adversarial process to present their respective positions about what is in their child's best interest. Attorneys advise clients about their rights and likely out comes, and either assist their clients to reach negotiated settlements or encourage further litigation as a means of settling custody or visiting disputes.

When parents are unable to reach negotiated settlements, a range of the most formal legal processes requiring judicial determination is used for settling custody disputes, including judicial hearings, pre-trial settlement conferences, and custody trials. In states without mediation programs, trials are a more common process for resolving disputes, representing an estimated 15% to 20% of all contested custody or visiting cases.62 In California, mandatory mediation has reduced the number of custody trials to between 1% and 5% of all contested custody cases.35,62 Adjudicated custody disputes are expensive (ranging from $30,000 to $300,000) and require up to three years for settlement.63 They can create massive upheaval in the lives of all family members, generating higher levels of mistrust and acrimony.64,65

Do Your Own Divorce (In Pro Per)

In states with legislation enabling parents to reach agreements and file their own divorce papers (in pro per), the use of attorneys has decreased dramatically. In large part, disenchantment with the prohibitive costs, inefficiency, erratic outcomes, the acrimony of the adversarial divorce process,66,67 and the availability of excellent self-help resources 68-70 account for this social trend. It is estimated that, in California, more than 50% of divorce cases have one or both parties handling their own divorce 62 (including large numbers of parents disputing custody or access),40 and in one jurisdiction with a predominantly lower socioeconomic population, close to 80% are not using attorneys.71 Mandatory custody mediation services have enabled parents to reduce their costs and reliance upon attorneys or to bypass adversarial proceedings altogether.62