Child Custody

The concept of child custody receives its major attention in the law when parents live separately. In these situations, it is necessary to determine what living arrangements will be made for the children and how parents will exercise their custodial rights and responsibilities. Although the most common situation in which this occurs is when parents divorce, and the family dissolves as an entity, the issue of parental custodial rights between the parents of children born outside of marriage is growing in importance.

Custody between unmarried parents. Changes in family patterns are greater in some countries than in others, but throughout the world, increasing numbers of children are born to parents who are not married to each other and who may not even live together. In those cases, the custodial rights of the father are dependent, first of all, on the establishment of paternity. Historically, even after paternity was established, the mother had a superior right to custody of the child. Today, there appears to be a trend—at least in the United States and many European countries—to apply the same rules to custody disputes between unmarried parents as between married parents, particularly in cases where the unmarried father has lived with and cared for the child. However, even in those jurisdictions that accord rights to unmarried fathers, the one who has never lived with the child or established a parent-child relationship in some other way will find his custody rights to be much more limited than those of the mother.

Types of custody. When parents do not live together, the possible custodial arrangements available can be described as sole custody, split custody, joint legal custody, and joint legal and physical custody.

Sole custody means that the child resides with the parent awarded sole custody, and that parent has authority to make decisions for the child on lifestyle issues, such as education, religion, medical treatment, and general welfare. The other parent has the right of visitation but limited authority. Historically, this was the only kind of custodial arrangement provided by the law when parents separated. It continues to be the most common custodial form and, in some countries, the only form.

Split custody is really a form of sole custody, with the sole custody of the children divided between the parents; each parent has sole custody of one or more of the children. A very small number of custody arrangements involve split custody.

Joint custody is a relatively new custody form, dating from the 1970s. Although the exact meaning of joint custody is not clear, the term usually refers to two types of custodial arrangements. One form that has become popular is known as joint legal custody. In joint legal custody, the decision-making aspect of custody is separated from the physical care aspect. Both parents exercise decision-making authority for the child, but the child resides with one parent, usually the mother. Joint legal custody with physical custody to one parent, usually the mother, is the most common form of joint custody.

The other type of joint custody is joint legal and physical custody, where the parents share decision-making authority, and the child resides in both households. This arrangement is sometimes referred to as dual residence. The amount of time the child spends may be equally divided between parental homes, or the child may spend a majority of time with one parent and a lesser amount with the other parent.

Interest in joint custody as a parenting arrangement is most widespread in the United States, Canada, and the countries of Western Europe. As parenting roles change in those areas and fathers assume more custodial duties in intact families, shared time or dual residence seems to grow in popularity. One study in the United States found that, over a twelve-year period from 1980 to 1992, shared physical custody increased from 2.2 percent to 14.2 percent of the cases (Melli, Brown, and Cancian 1997).

Standards for awarding custody. The universal rule that guides the courts in deciding which parent should have custody is the best interests of the child. Although historically the father had a superior right to custody of his children and in some societies still has that right, the best interests of the child has become the polestar in custody decisions in most countries. The best interests of the child are frequently equated with mothers' custody, particularly for young children. However, in recent years, the preference for mothers has begun to disappear formally from the law. In the United States it has been abolished by statute or case law in the wake of concerns about gender equity. Since then, the assessment of what is in the best interests of the child has been greatly influenced by Beyond the Best Interests of the Child (Goldstein, Freud, and Solnit 1979), a book that stressed the importance of the relationships, particularly the psychological ties that children have with their parents.

Application of the best interests of the child criterion implies that the court's decision will provide the very best possible solution for the child. Unfortunately, as numerous critics have pointed out, obtaining the best possible solution is more illusory than real. Human knowledge is too limited and problematic to give clear guidance when making decisions that will be affected by unpredictable future events. In addition, the courts often lack the time and staff to gather sufficient information with which to determine the best possible solution (Erlanger, Chambliss, and Melli 1987; Melli 1993; Mnookin 1975). Scholars have also expressed concern that the lack of predictability on what constitutes the best interests of the child encourages litigation—a result that is universally regarded as undesirable (Mnookin and Kornhauser 1979). Considerable attention has been devoted to searching for some limiting preference that would reflect the best interests of most children. In the United States, the influential American Law Institute has recommended that custodial responsibility be allocated in rough proportion to the share each parent assumed before the divorce (Bartlett 1999).

Regardless of the standard applied, the great majority of children in single-parent families live with their mothers. Most studies show mother custody at about 70 to 80 percent, with father custody, split custody, and shared custody accounting for the rest (Maccoby and Mnookin 1993; Melli, Brown, and Cancian 1997).

The role of the court. A custody arrangement is made by an order of the court as part of the divorce proceeding. However, in the great majority of cases, the parents, not the court, make the actual decision. Most estimates are that 95 percent of the custody orders are based on parental agreement. One study in California found that only 3.5 percent of the cases required a decision by the court; the rest were arranged by the parents themselves or, if the parents were in disagreement, were negotiated and settled with the aid of their lawyers (Maccoby and Mnookin 1993).

Unfortunately, those few cases that are litigated are often high-conflict ones that may seriously harm the children involved (Elrod and Ramsay 2001).

The role of the child. Given the importance of a custody determination to a child, several issues arise as to the role of the child in such a proceeding. Most judges view the child's preference as relevant to a custody decision (Scott, Reppucci, and Aber 1988). The weight to be given to the child's wishes usually depends on the child's age and maturity of judgment.

A related issue is whether a child has a right to be represented in the custody proceedings. This issue recognizes the concern that custody litigation may lose sight of the best interests of the child. Hostile parents and their lawyers may fail to inform courts about issues important to the well-being of the child. The U.N. Convention on the Rights of the Child (1989) provides in Article 12 that states should assure a child the right to be heard in custody proceedings either directly or through a representative.

The role of mediation. When parents are in conflict about the custodial arrangements, there is substantial agreement that the traditional dispute resolution process of the law, litigation, is not suited for the problem. The most frequently suggested alternative is mediation (Milne and Folberg 1988). The research on mediation is very limited, but it appears to result in more user satisfaction than do litigation experiences (Pearson and Thoennes 1988). However, its use is controversial. Critics claim that mediation results in undesirable shared custody arrangements (Bruch 1988), and feminists express concern about unfair pressures on mothers in the process (Grillo 1991).

Modification of custody. Custody arrangements are not final; they may be changed by the parties or modified by the court. One study found that over a period of three-and-a-half years, there was a fair amount of change in the residential arrangements of the children. Mother sole custody was the most stable arrangement, with 81 percent of the children who lived with their mothers at the time of the first interview still living there at the time of the third interview. The other two types of physical custody arrangements, father custody and dual residence, were much less stable, with 51 percent of the children in those arrangements making at least one change (Maccoby and Mnookin (1993).

In addition to informal changes made by the parties themselves (these are often not ratified by a change in the formal court order), the court may modify the custody award because it is never considered a final order and is, therefore, subject to modification. This nonfinality for custody orders reflects concern about the need to protect children from harmful circumstances, but it conflicts with an equally important policy favoring stability for children. For this reason there has been a clear trend in the law toward making changes difficult, discouraging parents from relitigating custody decisions. For example, the consideration of a custodial change may be limited to situations where it can be shown that there has been a change in circumstances since the date of the custody decree, or where evidence not considered by the court in granting the decree is now presented for the first time. Some jurisdictions are even more restrictive, prohibiting the consideration of requests for changes for a set period of time, such as two years after the entry of the original order, unless the existing physical custody arrangement seriously endangers the child.

Once the set of conditions for considering a custody change has been established, the issue is whether a change in custody is in the best interests of the child. Again, concern that custodial change is not good for the child is an important consideration. The usual presumption is that staying in the present placement is in the child's best interest. Apart from concerns about changing children's living situations, courts consider the same kinds of issues on modification as they do in making the original order.

Joint physical custody poses particular problems of modification because any change in parental circumstances can easily upset a complicated dual residence arrangement. Therefore, courts are more willing to consider requests to change dual residence arrangements. Usually, for example, a prohibition against change in custody for the first two years after the original order is not applied to joint physical custody situations.