The Determination of Child Custody in the USA

By:

Joan B. Kelly, Ph. D.

The determination of which parent should have custody of the children in a
divorce proceeding has become increasingly problematic in the past several
decades. As clear legal rules have been replaced by less well-defined
standards for making such decisions, and as societal norms have
de-emphasized gender-linked differences in the workplace and within the
family, uncertainty about the appropriate role of each parent in the child's
life after divorce has increased. Without clear legal rules, the
consideration of children's needs has been forced to the forefront in the
decision-making process, and the determination of parent custody after
divorce has become an unpredictable and highly charged emotional issue for
parents.

This article reviews the history of child custody decision-making, and
describes current custodial arrangements in the United States. The manner in
which parents and courts make decisions about custody and access, and
changes in visiting patterns in recent decades are examined. The impact of
reforms in the law, and the implementation of newer dispute resolution and
educational interventions are discussed, and recommendations for policy and
practice suggested.

Custody Decision Making in Historical Context

In Roman, and later in English common law, children were viewed as the
property of the father, who had a legal obligation to protect, support and
educate his children. Fathers had the right as well to sell their children,
and to enter them into enforced labor. In divorce, until the mid-nineteenth
century, fathers had a near absolute right to custody, regardless of
circumstances. Several major historical trends converged to weaken this
paternal presumption in the late 1800's, including society's increasing
focus on children's welfare, and the effects of the industrial revolution.
As fathers increasingly sought work beyond the farm or village, mothers
remained at home as primary caretakers. The resultant division of family
responsibilities into wage earner and child nurturer influenced subsequent
custody decisions.

The paternal preference was gradually replaced by a maternal preference,
based on the "tender years" presumption. The tender years doctrine (intended
to apply to children under age 6) was originally invoked to determine
temporary custody arrangements in English law, giving mothers custody of
infants only until they were ready to be returned to the father. But by the
1920's, the maternal preference for custody in English and American law,
regardless of the child's age, became as firmly fixed as the earlier
paternal preference, and was encoded in statute in all 48 states. The
assumption that mothers were better suited to nurture and raise children
received an intellectual underpinning in the 1930's from Freudian
psychoanalytic theory, which focused exclusively on the mother-child
relationship, and ignored the role of the father in the child's development.
The resulting idealization of motherhood was often reflected in custody
decision-making, as in this 1938 Missouri judicial opinion: "There is but a
twilight zone between a mother's love and the atmosphere of heaven."

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.

These converging trends, amplified by the fact that more than one million
children were involved in divorce each year, resulted in pressure to pass
new laws permitting joint custody as a viable option for post-divorce
custodial status. In 1979, the first joint custody statute was enacted in
California, followed by Kansas, and Oregon. By 1991, more than 40 states had
shared parenting statutes in which joint custody was either an option or
preference, and most other states had recognized the concept of joint
custody in case law. The effect of such legislation has been to create
gradual change in the attitudes of parents, lawyers, mental health
professionals, and judges regarding parental involvement after divorce.
Among parents, for example, gender differences found in satisfaction with
joint custody in the early 80's, appear to be diminishing as mothers
indicate more acceptance of shared residential arrangements a decade later.
Debate continues, however, regarding the appropriateness of joint custody
for some parents, and whether it has a deleterious or positive effect on the
economic and psychological well-being of children.

Type and Incidence of Custody Arrangements

Nearly all states have distinguished in their legislation, either explicitly
or implicitly, between legal and physical custody. Legal custody refers to
the parental right to make major decisions regarding the child's health,
education, and welfare. Physical custody refers to the living arrangements
of the child on a day to day basis. There are two basic custody arrangements
in the United States, sole custody, the most common, and joint custody. Sole
custody assigns to one parent all legal rights, duties, and powers as a
parent, including the right to make all decisions. In sole custody, the
child resides with the custodial parent; the noncustodial parent is given
the right to visit the child. The limited rights and privileges of the
noncustodial parent have been expanded in most states over the past decade
to provide equal legal access to child-related information of an educational
and medical nature, and to make medical decisions in emergencies when the
child is in the noncustodial parent's care.

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.

How Are Custody Arrangements Decided?

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

Private Agreements

The notion of parents making private decisions regarding custody and
visiting is an appealing one, from both a psychological and economic
viewpoint. On an individual basis, parents can discuss their own children's
particular needs and reach agreements which reflect those needs, parental
desires, and family values, and they can do so without depleting limited
economic resources. Indeed, approximately 60% of parents appear to settle
custody matters at the time of separation.

However, the majority of parents have discussed these important issues very
little, if at all, in doing so. Partly as a result of cultural assumptions
unexplored, established family patterns, fear of conflict, and/or lack of
financial resources, many parents arrive at custody and visiting
arrangements primarily by default, rather than through a thoughtful
consideration of their children's needs.

Mediation

When parents are unable to settle custody and visiting arrangements on their
own, there are several non-adversarial options available. Some parents turn
to trusted advisors or decision-makers outside of the legal system,
including extended family members, the clergy, or psychotherapists for
assistance. A more recent dispute settlement option, that of custody or
comprehensive divorce mediation, has become available in the private sector
in all states. In mediation, decision-making remains with the parties, not
the mediator, who serves as an impartial third party to assist parents to
reach mutually acceptable agreements. In contrast to adversarial
proceedings, mediation focuses on collaborative problem-solving and the
needs of all family members in working to resolve custody disputes.

Several states, including California, Maine, and New Mexico, now mandate
mediation as a first step process in attempting to resolve custody or
visiting disputes. In many other states, and in numerous local
jurisdictions, court-connected custody mediation is available on a
discretionary basis, or required only for specific circumstances, such as
when parents want joint custody. Studies of court-related custody mediation
indicate high levels of satisfaction among both men and women, even when the
agreements of the participants do not reflect their most desired outcome.

Adversarial Processes

At a more formal level of decision-making in custody disputes, parents must
use attorneys to represent each parent's opposing position about what is in
the child's best interest. Familiar with local judicial preference and
rules, attorneys advise clients about their rights and likely outcomes, and
either assist their clients to reach private negotiated settlements or
encourage further litigation as a means of settling custody or visiting
disputes. In states with legislation enabling parents to settle their own
divorce matters and file "in pro per", or on their own behalf, the use of
attorneys appears to have decreased dramatically. In large part,
disenchantment with the adversarial system, the increasingly prohibitive
costs of adversarial divorce proceedings, and the availability of excellent
self-help resources accounts 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, and in one jurisdiction with a predominantly lower
socioeconomic population, close to 80% are not using attorneys for
assistance. In a court mediation setting, one or both parents were not
represented by counsel in nearly 40% of the cases disputing custody or
access. The existence of a mandatory custody mediation program in California
has enabled parents to either reduce their reliance upon attorneys, or
bypass adversarial proceedings altogether.

When parents are unable to reach negotiated settlements, a range of the most
formal legal processes are available for settling custody disputes in all
states, including judicial hearings, custody evaluations, settlement
conferences, and custody trials. In states without mediation programs,
trials are a more common process for resolving disputes, representing an
estimated 20% of all contested custody or access cases. In California, the
mandatory mediation program has reduced the number of custody trials to
between 1% and 5% of all contested custody cases.

While most states delegate the ultimate responsibility to judges for
deciding custody disputes, parents and their attorneys have the option in
Texas of using jury trials for determining custody outcomes. Regardless of
who decides, adjudicated custody disputes are expensive (ranging from
$50,000 to $300,000), lengthy (requiring one to three years for final
settlement), public, and create a massive upheaval in the lives of all
family members, generating even higher levels of mistrust, suspicion, and
acrimony.

Influences on Decision making

Regardless of the level at which custody decisions are made, powerful
influences on these decisions arise from statutory, judicial, cultural,
educational, and research sources. Certainly most determinative in
influencing custody outcomes are the statutes governing each state, and the
related case law which has been developed to test, modify, or expand the
intent of the statutes. Although only a small percentage of litigating
parents require judicial decision-making, statutory law pervades all lower
level decisions, as attorneys and parents negotiate "in the shadow of the
law". At the heart of the adversarial process is the reliance upon legal
precedent for making decisions, which limits different or innovative
outcomes. At the parental level of decision-making, if father desires joint
physical custody, but his attorney knows that joint physical custody has
been summarily rejected by the local judge, even though permitted by law,
the options available to that parent are limited to trial and appeal, or
retreat. Regardless of family history and circumstances, parents and their
attorneys will most often reach settlements that faithfully reflect the law
or anticipated judicial opinion.
Cultural traditions, reflected in the law, also heavily influence parental
decision-making about custody. Mainstream American culture still views women
as the appropriate primary caretakers for children after divorce, although
the strength of this assumption varies within subcultures. Recent social
change which encourages fathers to be more involved during marriage in child
rearing responsibilities is primarily a white, middle and upper middle class
phenomenon, and is not shared by the cultures of many ethnic and racial
minorities in the United States. Therefore, cultural assumptions among these
other groups will more often lead to sole mother custody arrangements with
limited visiting arrangements.

More recently, educational materials and parent education programs are
influencing the decision-making of parents and attorneys. In many courtrooms
across the country, divorce- related educational video presentations are
required viewing for parents disputing custody or visiting matters. Most
materials seek to educate parents about the impact of divorce and conflict
on their children, and the need for children to continue their relationship
with both parents after divorce. The effectiveness of such materials, or of
required divorce-related parent education classes is largely unknown, but
currently is being evaluated in a number of settings. Several books written
for parents have been widely influential among parents and attorneys in
their thinking about custody arrangements.

Research on the effects of divorce on children, on post-divorce parent-child
relationships, and on joint versus sole custody have also had considerable
influence on decision-making at the parent, judicial, and legislative
levels.

Debate continues regarding the extent to which social science should be used
to influence legislation, or judicial practices. Divorce research studies
have used varying methodologies, samples, and measures, some of questionable
reliability and applicability. The current practice by advocates for small,
special interest groups for influencing legislation is to selectively use a
certain research finding to bolster a political, or gender-linked point of
view, while ignoring other data. Such practices make it very difficult for
legislators or judges to achieve a balanced, informed view. Nevertheless, a
convergence of research findings is slowly emerging which is informing
dialogue among those willing to be more comprehensive and thoughtful.

The use of mediation to settle custody disputes may also influence parental
decision-making, depending upon the jurisdiction and the extent to which
mediators may subtly discourage or encourage certain outcomes. In Virginia,
disputing parents randomly assigned to custody mediation did not agree to
any greater number of visiting days with the non-custodial father compared
to those going to court. In part, this finding may have been influenced by
the legal context, as well as a bias against joint physical custody
expressed to parents by the mediators. In California, a jurisdiction with a
statute encouraging "frequent and continuing contact" with the
nonresidential parent, and which has produced a far greater variety of
custody and access outcomes than most jurisdictions, parents using mediation
agreed to more expanded visitation arrangements than did parents either
deciding on their own or litigating their issues.

Factors Considered in Custody Determinations


When parents are able to settle custody or visiting disputes privately
between themselves, they are free to rely upon any criteria of their own
choosing for determining the outcome. Although it has not always been the
case, if parents stipulate to mutual agreements regarding their children,
judges in many jurisdictions will automatically approve their custody or
parenting plan. The trend in judicial practice in the past decade has been
to de-emphasize the role of the state as "big brother", intervening and
passing judgment on private ordering regarding parenting arrangements,
simply because a divorce has occurred. Particularly in states requiring
mediation, written parenting plans, or other educational interventions,
judicial officers more often limit their interventions and scrutiny to
contested parenting matters.
Parents who cannot agree on custody and access become subject to the legal
criteria for determining custody outcomes that have been adopted by their
particular state's legislature and related case law. The most common
standard in use is the "best interests of the child", a gender neutral
referent which allows mothers and fathers to compete for custody on an equal
footing. Once established as the overriding standard in all 50 states,
several states (see for example, Minnesota, Washington, and West Virginia)
recently have adopted legislation or case law precedents which substitutes
the "primary caretaker" standard for determining custody. A third standard
for determining custody is the child's preference for custody, if the child
is regarded statutorily of sufficient age to make such a judgement.

The "best interests" standard.

This standard is simple to state, and difficult to apply. There is little
consensus among legal, judicial, or mental health communities regarding what
the child's "best interests" actually are as they apply to a custody
dispute. There are advantages and disadvantages to utilizing this criteria
as the benchmark for custody decision-making. The most compelling reason for
relying upon a determination of the child's best interests is that
decision-making is centered on children's needs, rather than adult
considerations or societal stereotypes and legal traditions. The shift to
the best interests standard signalled a willingness on the part of the legal
system to consider custody outcomes on a case by case basis, rather than
adjudicating children as a class or homogeneous grouping. To those concerned
with each individual child's psychological and developmental well-being,
this shift to a more discerning, individuated approach was appropriate.

The second advantage of the best interest standard is that it is responsive
to changing social or legal trends outside of custody law. A number of
judicial decisions relying upon a consideration of the child's interests
have become landmark cases, charting a different course in child custody
disputes, particularly with respect to custodial parents with severe
physical disabilities, homosexual preferences, diverse life style practices,
or in other nontraditional parenting arrangements. Certainly, the "best
interest" standard enabled fathers who had engaged fully in significant
caretaking roles within the family to have an expanded role in the child's
life after divorce.

The core problem of the best interests standard arises from the lack of
uniformity regarding which interests to consider, how to define and weigh
the importance of different factors, and how to account for children's
changing developmental needs over time. The effect of such unclarity is that
attorneys, social workers, and custody evaluators consider and emphasize
different factors, or interpret the same concepts, such as continuity or
stability, in diametrically opposed ways designed to benefit the parent they
represent or favor. Without clear findings or guidelines, judges often make
these difficult decisions by relying upon their own subjective value
judgements and experiences, resulting in considerable unevenness in outcomes
across or within jurisdictions. Although no empirical evidence exists, it
would appear that when a state includes within its custody statutes a list
of criteria to be considered in determining what is in the child's
interests, there is more likely to be more uniformity in outcomes, and less
uncertainty in bargaining. Michigan, for example, adopted eleven criteria
for determining which residential arrangement was in the best interests of
the child. Proponents of the case by case approach argue that with good
criteria, appropriate information about the family, and with
methodologically sound social science and developmental research made
available to evaluators and judges, judges can make appropriate judgments
which will respect the child's needs.

Another argument raised against using the best interests standard is that
its vagueness reduces women's bargaining power, complicates divorce
negotiations, and encourages unnecessary litigation because of the
uncertainty of outcome. There is little doubt that when the maternal
presumption was in favor, the clear statutory rule deterred legal action,
even when maternal care was gravely deleterious to children. Recent research
indicates that women are not disadvantaged in the bargaining process by the
best interest standard, that is, the uncertainty of custody outcomes did not
cause women to trade off child support to avoid risk. The existence of
mandatory child support guidelines reduces further such potential bargaining
inequities. The larger philosophical question is whether one favors an
approach which focuses on children's interests, or an approach which favors
greater simplicity and efficiency in the legal system. In states relying on
the best interest standard, child-focused, court-connected interventions
such as mediation reduce litigation time, expense, and conflict in custody
and visiting disputes.

The "primary caretaker" preference.

Several states have opted to reduce the uncertainty of the best interests
standard by adopting language which favors the primary caretaker of the
child during the marriage in determining custody outcomes. While the concept
of the "primary caretaker" is technically gender neutral, there are many who
perceive believe this as a return to a disguised maternal preference
standard. Currently, strong efforts are being waged in many states to
rescind joint custody legislation and the best interests standard
simultaneously, based on the belief that women have been disadvantaged by
both concepts.

The primary caretaker is defined by the parental duties undertaken during
marriage, to include a determination of which parent spent the most time
preparing and planning meals, bathing and dressing, purchasing clothes,
obtaining medical care, arranging for child care, putting the child to bed
and waking in the morning, disciplining, educating, and teaching elementary
skills such as reading and writing. One proposal advanced by a law professor
included giving credit to whichever parent had "devoted significantly
greater time and effort than the other in...breastfeeding." It is well
documented that in most families, women more often than men undertake these
physical caretaking activities, even when both parents are employed.

However, there is little, if any, acknowledgment in most primary caretaker
proposals of the types of activities and interactions more typically
undertaken by men, including playing with the child, encouraging interest in
physical and sports activities, coaching a team, providing intellectual
stimulation, and homework assistance. No credit is given for responsibly
earning income to support the family and its activities. From a
developmental standpoint, there are many who argue that the differentiation
of primary and secondary caretaker for children beyond preschool age is
neither a critical one, from the perspective of the child's multiple
attachments nor is supported by empirical research.

The most serious problem with the primary caretaker standard is that it
rewards countable, repetitive, and concrete behaviors, but totally ignores
the quality of the relationship between primary caretaker and child. The
most important emotional behaviors promoting children's development and
healthy adjustment, including love, secure attachments, acceptance,
nurturance, absence of abusive interactions, promoting autonomy and
self-esteem, are not considered. Further, the psychological adjustment of
the primary caretaker is not taken into consideration, despite the fact it
is a known critical factor in the post-divorce adjustment of children.
Primary caretakers, whether male or female, range from the abusive,
neglectful, and emotionally disturbed, to the most stable, effective and
nurturing of parents. In relying upon the primary caretaker standard, the
child's core interests are dismissed in custody determinations. It is
appropriate, however, to include among the criteria to be considered in
determining the child's best interests, a consideration of the range and
quality of each parent's care, activities and interactions with the child.

The child's wishes.

In many states, the child's wishes are either given great weight or are
determinative in a custody dispute, if the child is of sufficient age and
capacity to form an intelligent opinion. While many states allow a child of
age 14 or older to state a preference, judges will often include the
reasoned arguments of younger children in their deliberations as well.
Recently a 14 year old petulantly wondered why a "primary caretaker" was
such a big deal, and questioned why it had to be his mother (which she was
claiming). In his opinion, both of his parents were primary caretakers, and
he liked spending roughly equal time with each. "You get different things
from moms and dads."

The Emergence of Access as a
Primary Factor to be Determined

During the many decades of maternal presumption, visitation by the
noncustodial father, if it occurred at all, was limited to every other
weekend. Prior to social acceptance of divorce as a common remedy for
unsatisfying emotional relationships, divorces more often occurred because
of alcoholism, neglect, severe mental illness, or abandonment. Under such
circumstances, non- custodial men were expected to cease their contacts with
their children, or have only occasional, brief contacts. This tradition
extended into the 1970's, when the increased divorce rate, and research on
children of divorce, forced a re-examination of the concept of limited
access. Repeated studies documented children's intense dissatisfaction with
limited visitation, their sadness over the loss of frequent contact, and the
diminution over time of the importance of the father to the child when
contact was restricted.

The vast majority of children with a positive relationship to their father
found intolerable the waiting period of 12 or more days between contacts,
consistent with every other weekend visitation, and reported that two to
four overnights per month was unfair, unsatisfactory, and depriving. For
toddlers and preschool children, in particular, their immature time
perspective and cognitive abilities created confusion and fear that the
nonresidential parent had abandoned them.

In response to these repeated findings, visitation slowly began to change in
the 1980's in many jurisdictions, first to include a brief midweek visit
every other week (to shorten the gap between contacts to 7 days), and then
to incorporate a midweek overnight, along with the every other weekend
contact. This change shifted the amount of time that children were spending
with their nonresidential parents, usually fathers, from approximately 15%
to nearly 30%, depending upon how holidays and summers were arranged. When
the relationship with the nonresidential parent is a positive one, children
with expanded and flexible visitation are more satisfied, and view the
divorce less negatively. Greater contact between child and father has been
found to be associated with higher child support compliance payment of more
supplemental child expanses and less father drop-out in the longer term.

It is not possible to determine, on a national basis, how much time children
are currently spending with their fathers, although clearly a significant
trend toward more contacts has emerged in the past 15 years. Early reports
suggested that approximately half of the nation's children were not seeing
their fathers at all several years after divorce, and very few were visiting
their fathers once or more a week. These data were based on a 1981 national
survey data set, collected before much of the relevant divorce research was
published, and prior to the adoption of joint custody or "frequent and
continuing contact" statutes in most states. It is also critical to
distinguish between parent access patterns among the divorced versus never
married, as the never married have much higher rates of no contact.

More recent research indicates that fewer children than previously indicated
have no contact with their fathers after divorce, and more children are
experiencing weekly contacts. In a 1988 national data set, 18% of the
children had no contact in the prior year; an additional 14% had contact
once a year with their fathers, generally, long distance summer visiting.
Twenty- five percent saw their fathers once or more times a week. Based on
recent regional studies, the level of disengagement between fathers and
children appears to be further diminishing in that approximately 10% of
nonresidential parents had not seen their children in the previous year.

Similarly, among those children seeing their fathers, the overall amount of
time appears to be increasing. While much research indicates that contacts
with fathers diminish with time and distance after separation newer research
in some locations suggests considerable stability in patterns of contact
between fathers and children in the first several years after separation. It
is important that parents establish the visitation pattern soon after
separation, particularly including overnights, or the likelihood of visits
continuing in the future is considerably diminished. It is reasonable to
speculate that when interested visiting fathers negotiate sufficient time
with their children to maintain the relationship at a meaningful level, and
begin the contact immediately after separation, there will be less
diminution in the visit pattern itself. Support for this has been found in
studies of joint custody, which show little change in contact between
fathers and children over time.

One effect of the trend toward greater contact between fathers and children
after divorce is that greater demands are placed upon the court and its
ancillary services to settle the nature of access patterns when parents
dispute. More than balancing this, however, is evidence that the number of
custody disputes declines. In California, the vast majority of disputes
utilizing public and private sector mediation services are not about which
parent shall have custody. Rather, a large number of disputes are focused on
how much time father will spend with the children. Will the weekend extend
from Friday to Monday morning, or, will midweek overnights be every week or
every other week? What is appropriate for a toddler, or a school age child?
Such disputes are more easily settled than custody disputes, and the
availability of mediation services results in efficient and satisfactory
resolution. Other commonly disputed issues require more time and evaluation,
such as whether substance abuse is interfering with adequate parenting, or
whether a parent's mental state requires supervised visitation. Even with
these more difficult issues, mediation is often an effective first step
intervention.

Specificity and Modifiability of
Custody and Access Orders

The most common custody order is one of physical custody to the mother and
"reasonable visitation" to the father, with no specificity as to what the
actual visiting pattern, holidays, or vacations will be. The failure to
develop and specify detailed parenting plans creates uncertainty and
conflict between parents, and confusion for the child about when he will
next see his noncustodial parent. When a parenting or visiting plan is not
worked out as to its specifics, the "reasonable visitation" language
requires that the nonresidential parent make a request to the custodial
parent each time access to the child is sought. In contrast, if dates and
times of transitions are included in final divorce orders, nonresidential
parents can exercise their parental responsibilities in a predictable
manner, without power struggles or conflicts. The absence of specific
post-divorce parenting orders is postulated to be a major cause of the
diminution in contacts between fathers and children after divorce, and leads
to father dropout. Lack of specificity in visitation also leads to
considerable post-divorce litigation (or mediation), particularly before
summer vacations and holidays. While many attorneys and judges believe that
specific parenting plans create rather than lessen conflict, this view is
not supported by the experience of mediators assisting parents to reach
agreements. Both disputing and nondisputing parents express a strong desire
to settle these issues. They recognize the value of eliminating uncertainty
and conflict, and in being able to plan for their lives with and without
children. What is needed are nonadversarial forums for parents to reach such
agreements, which are generally not available in states lacking mediation
services. Such forums can also be utilized in subsequent years when
parenting plans need to be changed.

In past decades, visiting orders, if they existed, were not expected to be
modified over time. Every other weekend visitation was expected to meet the
developmental needs of the child at all ages, as well as any other family
changes post- divorce. Custody or visiting orders could not be changed
within the legal system unless they met the test of certain changes of
circumstances specified within each state. Although parents have always been
entitled to modify their custody agreement by mutual agreement, most states
have had limited criteria defining a change of circumstance, such as moving
away or a disabling illness of a parent. It is striking that the changing
developmental needs of the child or the child's wishes have not been
considered as a change of circumstance to modify custody or visiting in the
majority of states.

Because approximately half of the contested custody and visiting cases
before the court now involve children below the age of five, it is important
to reconsider the circumstances under which parents can petition to change
visiting orders. A parenting plan that meets the developmental needs of a 15
month old child is not necessarily good for a 5 year old, or a 15 year old.
As statutes have permitted joint custody arrangements, and as visiting has
expanded beyond every other weekend, many parents, and the professionals
that assist them, recognize the need for flexibility in custody agreements
to accommodate the child's changing developmental needs. It is not uncommon
in mediation, for example, for parents to reach agreement on a parenting
plan beneficial for their two year old, a schedule which accommodates the
child's immature sense of time and anxieties arising from long separations
from either parent. They also often agree to modify the plan when the child
reaches three or four to a developmentally more advantageous schedule, or to
return to mediation if either parent believes the revised plan would not
serve the child's best interests. Such agreements are earnest efforts to
consider what the child's best interests are, based on changing
developmental needs. Such flexibility is not just a need of young children.
What best serves a 9 year old may be developmentally inconsistent with the
needs of an adolescent, a number of whom express a desire to change custody,
particularly when they have lived primarily with one parent. Yet most states
do not recognize the child's wish to "get to know" the other parent, or to
remove oneself from the household of an angry, punitive parent, or to escape
an alcoholic stepparent as a change of circumstance. Unless the parents can
agree privately, or in mediation, there may be no remedy for such
youngsters.

Policy Recommendations in
Custody Determinations

Recommendations for policy emerge from two decades of divorce research, a
decade of public and private sector experience with mediation, converging
mediation research findings, and experiences with educational programs
designed for divorcing parents. In determining custody at divorce in such a
way that will consider their children's interests, parents need a
hierarchical layering of available programs or services which reduce
reliance upon litigation and trial, ranging from educational programs to
mediation to arbitration.

Parent Education Programs

Whether they are in dispute or not, educational programs designed to provide
divorcing parents with information about the impact of divorce on children,
the effects of conflict on their children, how to keep their children out of
their conflicts, and information regarding various custodial and parenting
arrangements are important. Such programs can be offered through nonprofit
agencies in communities, through churches, or can be sponsored by the
courts. Good resource and training materials incorporating written, video,
and discussion elements have been developed that ensure balanced,
comprehensive programs. While it would be optimal if all divorcing parents
could participate in these brief programs, it should be required of all
parents disputing custody or access prior to entering mediation or
initiating litigation.

In those states offering or mandating custody mediation, it is recommended
that orientation sessions be required to educate parents about the mediation
process, including how it works and what the ground rules are, and about the
overall legal process ahead of them. Many parents do not know what mediation
is, and when they receive information describing the goals and procedures,
are more likely to try it. Some jurisdictions providing premediation
orientation sessions also include video and/or verbal information about
children and divorce.

Mandatory Mediation

Mediation should not only be widely available to all parents disputing
custody and access, it should be mandatory as a "first step" intervention.
When parents enter the legal system with a custody or visiting dispute, an
attempt to first mediate the dispute should be made, prior to initiating
other more adversarial proceedings. From a public policy standpoint, this is
an effective alternative program to fund, as settlement rates for custody
disputes range from 50% to 75%, generally following 1 to 3 sessions. Among
those attempting mediation who do not settle, they are more likely to reach
agreement prior to a court hearing than disputing parents randomly assigned
to the traditional adversary settlement process indicating that the
mediation may have an indirect effect on the parties.

Research in different jurisdictional settings demonstrates high levels of
satisfaction with custody mediation among both men and women, and modest
increases in cooperation. Mediation parents more often report feeling they
both have "won" in reaching settlement, whereas litigating parents clearly
define the outcome as producing a winner and a loser. When parents use a
comprehensive divorce mediation process which encompasses financial and
custody issues, the effect is more powerful in containing conflict,
facilitating more positive post-divorce parental communication, and
enhancing compliance with agreements.
Mandatory mediation in the public sector requires protective policies for
those unable or afraid to negotiate on their own behalf, even with
preparation of counsel. In response to strong criticism from feminists
legitimately concerned about the effect of domestic violence on women's
bargaining abilities, California adopted legislation providing for separate
sessions where there is a documented history of domestic violence, bringing
a"support" person into joint sessions, if desired, and procedures within
court mediation settings designed to ensure the safety of victims of
domestic violence. Effective screening procedures should be instituted in
mandatory mediation programs.

From a policy standpoint, several additional considerations are important in
recommending mandatory mediation. It is essential that mediators have
specialized, intensive training and experience in divorce and custody
matters, and in divorce mediation. Being a therapist, evaluator, lawyer,
probation officer, or judge does not adequately prepare one to be an
effective mediator. Further, settlement rates should not be considered as
the sole indicator of the success of a program. In fact, settlement rates
higher than 80% in custody disputes suggest mediator or administrative
coercion to settle, or arbitration rather than mediation. Serious issues
such as substance abuse, impaired mental capacity, child neglect and abuse,
or domestic violence are often more appropriately resolved in more formal
adversarial proceedings, including investigations, settlement conferences,
hearings, and custody trials.
Mediation should be available not only for those with formal disputes, but
also for those who seek assistance in developing or changing parenting plans
for their children. For parents without much dispute, but needing
information and assistance, a pre-mediation consultation is frequently all
that is needed. Such services could be provided through court or
agency-sponsored group educational programs for divorcing parents, with
backup mediation available for those needing dispute resolution services.
Such a hierarchy of services is likely to be the most effective combination,
from an economic as well as parent-child perspective.

Mediation of Financial Disputes

Although mediation is available in the private sector for settling property,
support, and custody matters in an integrated manner, only the state of
Maine mandates comprehensive mediation in the public sector. Comprehensive
divorce mediation, when provided by skilled, knowledgeable mediators is more
cost effective than adversarial processes, results in equitable agreements
more satisfactory to its participants, produces more compliance, contains
conflict, and facilitates more cooperative communication. Clients in
court-connected custody mediation often express the desire for mediators to
resolve their support issues, as well. Given the high number of clients
handling their own divorces, without legal assistance, mediation services
for settling simple property and support matters should be available, on a
sliding scale basis, to those who desire it. Most states require that
custody and financial disputes be settled in separate spheres, based on a
policy position that these troublesome issues are not linked. With the
recent adoption, in many states, of child support guidelines that directly
tie the amount of child support to the time that the nonresidential parent
spends with the child, these two issues have become inextricably linked. It
is both honest and efficient to deal with them in the same forum, rather
than to pretend that these issues are not related. In a comprehensive
mediation process, financial and child-related concerns can be addressed
simultaneously, each explored on their own merits but their interdependency
acknowledged and resolved.

Arbitration

There are a small group of divorcing parents, estimated to be 10% to 15% in
number, who remain in high conflict post-divorce. This chronically
litigating group use a disproportionate amount of the court's time and
resources, and deplete their own economic resources and parental energies.
Several California jurisdictions have initiated a "Special Masters" program,
designed to settle the continuing stream of disputes presented by this
special population, including child rearing issues, transition disputes,
vacation times, and egregious parental behaviors. Many of these families
have a history of serious problems and chaotic functioning, while in others,
the parents disagree about almost everything.

Special Masters are selected and empowered by the disputing parties through
stipulated agreements specifying the range of disputes to be settled. While
parents have the ability to appeal the Special Master's orders and
recommendations to the Superior Court, thus far this has rarely happened.
The majority of Special Masters are mental health professionals with
considerable training and experience in divorce, custody, parenting issues,
and mediation. Different models of decision-making are utilized by Special
Masters, the most common of which is a mediation/arbitration model, in which
the Special Master first attempts to assist the parents in mediating
disputes. If they are unable to settle, the Special Master makes the
decision, and presents it to the parents in written form with the rationale
for the decision included.

While no formal evaluation of these innovative programs has yet been
undertaken, attorneys, court mediation services, and the judiciary are
positive about this non-litigious manner of settling disputes. Many parents
request a Special Master, in recognition of their limited ability to
communicate and cooperate with respect to their children. Based on the
experience thus far with the Special Master's programs, it is recommended
that pilot projects be established and evaluated which assess different
models of decision-making for chronically litigating parents which
incorporate mediation and arbitration roles. Such programs could evaluate
the effectiveness of using individual Special Masters, currently the
practice, as well as interdisciplinary mental health/attorney arbitration
panels. The legal authority under which Special Masters function must be
further explored, as well as the relationship of the Special Masters to the
court when parents fail to comply with written orders.

Judicial Education

With the latitude given to judges under the "best interests of the child"
statutes for custody decision-making, judicial education in basic child
development concepts becomes extremely important. While the majority of
judges receive specific case law and procedural training when they move onto
the family law bench, few receive education which would enable them to make
appropriate decisions regarding developmentally-sensitive visiting or
custody plans for children of different ages.

Curriculums incorporating basic information about attachment, separation
anxiety, continuity in relationships, and children's needs during and after
divorce with particular emphasis on the implications of such concepts and
data for judicial decision- making are necessary to achieve more uniformity
and quality in judicial orders. Further, panels of neutral
developmental/clinical consultants should be available to judges to explore
with them the particular developmental issues raised by difficult custody
cases, so that the judiciary has a reasoned basis which is defensible for
making decisions. While some judges utilize personal collegial
relationships, off the record, for such purposes, many judges express the
desire for nonadversarial consultation to sort through the troubling issues
presented in adversarial hearings and trials, particularly those involving
infants and young children.

Conclusions

It is recommended, for the reasons discussed above, that the most
appropriate statutory standard for making decisions in custody disputes is
the best interests of the child. Given the wide variety of family styles in
our culture, decisions about children and parent-child relationships
post-divorce are appropriately case-by-case decisions. The "best interests"
standard can be more thoughtfully applied when states adopt criteria which
delineate important factors to be considered, and will achieve more
uniformity with judicial education. Finally, if educational and mediation
programs are available in all jurisdictions across the country to divorcing
parents, the majority of parents will settle the important issues of access
and custody without reliance upon adversarial processes.

This is a desirable outcome which clearly is in the best interests of
children and families.