Child custody issues can arise for a number of reasons, including parental death, unmarried motherhood, and the severance of parental rights by the state because of abuse or neglect. Today, however, child custody issues arise primarily as a result of divorce.
When parents divorce, decisions must be made regarding who has the present and future legal decision-making responsibility for the child’s well-being, where the children will reside physically, and most important, what post-divorce relationships their parents will or will not be permitted to have with their children. Custody determinations set the framework that structures post-divorce life for parents and children as well as child support.
From a life-span developmental perspective, the major shortcoming of custody determinations is that they are static. They fail to acknowledge that all members of the family triad—fathers, mothers, and children—will have different postdivorce developmental trajectories that cannot be known at the time of divorce, are guaranteed to occur, and will require future modification for the best interests of all parties.
Family law must come to recognize that change is inherent to development at all stages of the life cycle and make custody modifications both readily available and affordable for families at all income levels.
Joint custody arrangements typically refer to two quite different types of custody. Joint physical custody focuses on which parent the child is with, where they are with each parent, and the amounts of time they spend with each parent. Joint legal custody focuses on which parent has what legal rights to make what kinds of decisions concerning which aspects of the children’s life and well-being.
It is difficult to ascertain accurately who gets what kinds of custody because each state has different laws, different terminology, different court practices, and different reporting procedures. Thus, our focus will be on the advantages and disadvantages of two custody arrangements for each family member. Each family member will be considered because a core reality of divorce—unless a parent is willing to abandon their children—is the focus on changed relationships between former spouses rather than a “clean break.”
Who Gets Custody
The most powerful determinants of who gets custody are the presumptions embedded in state divorce law and the ideologies of individual judges because they determine the starting point for divorce deliberations and often the end point as well. Historically, if one goes back far enough, the presumption embedded in oppressive patriarchy was that the children belonged to the father. Later, the family law pendulum swung 180 degrees toward an oppressive matriarchy presumption favoring mothers, which was embedded in either the “tender years” or “primary caregiver” doctrines. The tender-years doctrine presumed that children belonged with their mothers, whereas the primary parent doctrine presumed that the parent who engaged in the most caregiving activities during the marriage would make the best post-divorce parent. Under these presumptions, family court judges virtually always gave sole physical and legal custody to mothers.
More recently, these doctrines have been replaced by the “best interest of the child” standard that, unfortunately, represents nothing more than “the eye of the beholder.” Tragically for children, this standard gives family court judges unbridled latitude to reach any determination they wish as long as they proclaim that it is in the best interest of the child.
At this writing, the pendulum has swung back to dead center with the presumption of joint custody in, of all places, Iowa. Effective July 1, 2004: If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent. In signing this legislation, Iowa Governor Tom Vilack emphasized the importance of having two parents following divorce based on his own experience as a child of divorce and his reading of the divorce literature. From a developmental perspective, this presumption offers the advantage of beginning divorce deliberations from a position of equality for all parties and deviating from this position only based on the individual difference characteristics, capacities, and situations of individual mothers, fathers, and children.
What Are The Advantages And Disadvantages Of Sole And Joint Custody Arrangements?
The advantages and disadvantages of sole versus joint custody arrangements are fairly straightforward. The advantages of sole maternal custody with paternal visitation are as follows. For the child, there is a sense of residential, neighborhood, and school stability perhaps paid for by a sense of paternal abandonment and a loss of the father as a parent. For the mother, there is virtually total control over the child and their socialization along with an exclusive and emotionally intense relationship with her child. The maternal disadvantage is potential burnout as she works the “second shift” of both paid employment and full-time 24/7 on-call child care. This burnout may be exacerbated if the child develops behavior problems as a consequence of the reduced involvement or absence of the father. For the father, there is a sense of loss and a loss of meaningful contact with his children. To become a visitor in his child’s life, after having been an involved father with a meaningful father-child relationship, has many negative outcomes for the father, including substantially higher rates of suicide, depression, alcohol abuse, drug abuse, poor heath, work problems, relationship problems, and social isolation. The core argument is that post-divorce father-child relationships are of critical importance not only for the well-being of children but also for the well-being of fathers.
In joint physical custody, for the child there may be residential, neighborhood, school, and friendship network instability with transfers from one home to the other. This instability may or may not be compensated for by the gain of meaningful, everyday relationships with both the mother and the father and the avoidance of a sense of abandonment and loss of either parent. For the mother, there is the loss of an exclusive relationship with and total control over her child, which may or may not be compensated by a loss of maternal role burnout, the gain of likely enhanced mental health of her child, and a greater opportunity to move on with her own life as an adult woman. For the father, there is an opportunity to maintain a meaningful and nurturant relationship with his child and enhance his own emotional balance.
What Can Research Tell Us About Custody Determination?
There is an inherent and confounding fatal flaw to all custody-outcomes research—self-selection. Neither parents nor children ethically can be randomly assigned to different custody arrangements to do a true experiment. Thus, it is not possible to ascertain the independent contributions of the “before” individual differences of mothers, fathers, and children that led them to choose joint custody and the “after” consequences or outcomes of having experienced joint custody.
Within this limitation, however, there are two lines of research that suggest Iowa may be on the right track. First, studies undertaken in Arizona and Florida report that young adult children of divorce wanted more time with their fathers (more custody time) and more emotional quality time (companionship, sharing activities, leisure, fun, play) than young adult children from intact families. Second, literature reviews uniformly conclude that gender similarities are far greater than gender differences in a parenting capacity. Mothers and fathers, in short, make equally competent parents. What makes these findings striking is the fact that this empirical research has rendered wrong and overruled decades of false legal presumptions.
Today, both joint custody and child support are highly controversial social and legal issues. Both are in flux, both will change, and both have clear sides. Generally speaking, children and fathers of divorce perceive their best interests to be best served by joint legal and physical custody. Some mothers also see it this way, but other mothers see their interests as best served by sole legal and physical custody. Custody battles are not likely to disappear, but their costs to all parties involved appear to be best mitigated with the equal opportunity principles embedded in joint legal and joint physical custody presumptions.
- Bauserman, R. (2002). Child adjustment in joint-custody versus sole-custody arrangements: A meta-analytic review. Journal of Family Psychology, 16(1), 91–102.
- Braver, S. L., & O’Connell, D. (1998). Divorced dads: Shattering the myths. New York: Tarcher/Putnam.
- Fabricius, W. V., & Hall, A. (2000). Young adults’ perspectives on divorce living arrangements. Family and Conciliation Courts Review, 38(4), 446–461.
- Finley, E. (2002). The best interest of the child and the eye of the beholder [Review of C. Panter-Brick & M. T. Smith (Eds.), Abandoned children]. Contemporary Psychology, APA Review of Books, 47(5), 629–631.
- Joint custody from the child’s point of view, http://www.gocrc.com
- Joint custody from the father’s point of view, http://www.deltabravnet
- Joint custody from the mother’s point of view, http://www.now.org
- Lamb, M. E. (2002). Placing children’s interests first: Developmentally appropriate parenting Virginia Journal of Social Policy and Law, 10, 98–119.
- Thompson, R. A. (1994). The role of the father after divorce. In The Future of Children, Vol. 4, No. 1: Children and divorce (pp. 210–235). San Francisco: Center for the Future of Children.