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

The Determination of Child Custody
Joan B. Kelly


Over the past century, the basis in law for custody decision making has shifted from a paternal presumption to a maternal presumption to current gender-neutral laws which rely upon a consideration of the best interests of the child in determining custody outcomes. While joint legal and physical custody statutes now allow parents to share child-rearing time and responsibilities after divorce as an alternative to awarding sole custody to one parent, the most common physical custody arrangement remains that of maternal physical custody. Despite profound societal changes in the past two decades which have affected family functioning and parental care traditions, it would appear that the majority of custody decisions continue to reflect, to a large degree, deeply embedded cultural traditions that view mothers as primarily responsible for their children, both during marriage and after divorce. As a consequence, mothers usually take the extremely challenging responsibility of raising their children on their own with little assistance.

The number of families with shared residential custody arrangements is increasing, particularly in states with laws supportive of continuity in children's relationships with both parents after divorce. Visit frequency has increased between fathers and children over the past decade, in part because of research documenting the psychological and economic impact for many children of infrequent contact with fathers and because of a societal trend toward somewhat more father involvement in child rearing during the marriage. Fewer fathers are dropping out of children's lives in the years after divorce, perhaps because expanded visitation patterns enable interested fathers to maintain more meaningful relationships with their children after divorce, even if they do not have joint physical custody.

The best interests of the child standard remains firm in most states. It is argued that the best interests standard is more beneficial for children than the primary caretaker standard because it allows for a consideration of the quality of the relationships between the child and each parent, and parental psychological adjustment, critical factors in promoting children's healthy adjustment. Current gender-neutral laws, combined with the best interests standard, allow parents, evaluators, and judges to reach decisions about children on a case-by-case basis which address their individual developmental and psychological needs. It is expected that, if courts have developmentally sound and uniform criteria to be considered in determining the child's best interests, there will be more clarity in the negotiation process and increasing uniformity in decision making.

While divorce research continues to enrich our understanding of the impact of divorce on children and on parent-child relationships, there is much to learn. Although child development research has been valuable in informing decision making, we lack a full understanding of how custody arrangements should be shaped over the years to reflect the changing developmental needs of the child, and our body of knowledge does not illuminate what kinds of custody arrangements would be suitable to the individual child within the individual family.

It is evident that, in settling custody and visiting disputes, the adversarial legal system, pitting parent against parent, is unwieldy, expensive, unsatisfactory, and unnecessary for large numbers of divorcing parents wanting to reach good agreements about their children. To diminish rather than escalate conflict, to enable parents to focus not on parental rights but on what is best for children, and to increase the likelihood of mutually acceptable custody and visiting agreements, parents need a range of educational and mediation services. While more research assessing the efficacy of these newer interventions is needed, initial studies indicate that they facilitate dispute settlement, contain or reduce conflict, promote more cooperative communication, and result in high levels of satisfaction in mothers and fathers. Continued efforts are needed to develop and evaluate programs for divorcing parents with special needs, particularly victims of domestic violence, and parents with high levels of continuing conflict after divorce.

As society's cultural and family traditions continue to change, it is likely that child custody and visiting arrangements will reflect, at least in part, these evolving attitudes and customs. The effort to ensure that children have post-divorce parenting arrangements which promote good social and psychological adjustment is an ongoing one, involving dialogue and debate at all levels. Our children deserve no less than this.