Divorce

Historical Overview

The divorce rate rose from 0.3 per 1,000 population in 1967 to its highest rate of 5.3 per 1,000 population in 1979. The change in social attitudes related to modern urbanization, including increased education and employment for women combined with smaller numbers of children per household, and the change in legal guidelines that allowed for no-fault divorce primarily account for this considerable change.

Currently, 51% of all U.S. marriages end in divorce. Often, children are involved, and more and more families with the youngest children are finding themselves in the predicament of divorce. For children who experience the divorce of their parents before age 12, at least two thirds experience it by the time they are 6 years old. Of all children who experience the divorce of their parents before the age of 6, 40% do so in the first year of life, 20% between 1 and 2 years, 15% between 2 and 3 years, 10% between 3 and 4 years, and 15% between 4 and 5 years. Thus, divorce is a common occurrence in the lives of infants, preschool, and early school-age children.

Specific to the context of divorcing families with young children, the judicial system has had the task of considering divorce in the context of children's best interests. This focus dates back to the 19th century, when it was initially legally specified that children have rights independent of their parents. This assumption was the basis for the later ‘best interests of the child’ principle. The term was coined in the 1925 Finlay v. Finlay case and places judicial officers in a parental role to the family, determining what scenario best suits the needs of a given minor child. During the early 1900s, the realm of parenting responsibility was predominantly determined by gender, with mothers being responsible for nurturance and fathers being responsible for discipline. The general consensus in a divorce proceeding resided in a mother's parenting role carrying greater weight for children's development than the father's. As a result, the majority of residence decisions placed children with their mothers. This earlier approach was mirrored in the 1970s with the Uniform Marriage and Divorce Act, which emphasized the emotional needs of children in the ‘tender years’ as being best served by residing with their mothers. This presumption has been scrutinized for its unconstitutionality and has gradually been replaced by a case-by-case review among judicial officers applying the best interests of the child principle.

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