Divorce and Child Custody

Divorce and its Aftermath

Of children from married parents in the United States, more than 40% will experience the effects of divorce. An untold, but likely larger, percentage of children who are born to cohabitating but unmarried parents also will experience the separation of their parents. Evidence suggests that at least a quarter of separating parents will experience substantial conflict concerning child custody. Despite this, the majority of custody decisions are resolved by parents without resorting to litigation. The use of alternative resolution techniques, such as divorce mediation, appears to be increasing as a means of resolving contested cases, rather than resorting to judicial determinations.

The courts typically may choose from a variety of different forms of custody that are thought to best serve the child. Most states differentiate between physical custody, which relates to the time spent with parents, and legal custody, which refers to rights regarding decision-making capacities (e.g., schooling, medical care). The majority of children appear to live primarily with their mothers, although there is some evidence of increasing residence with single fathers. Joint physical [Page 231]custody, the effects of which have been widely debated since the 1980s, appears to be relatively uncommon. Of note, custody arrangements appear to evolve over time, with actual living situations not necessarily corresponding with the initial legal agreements.

Legal Standards

All U.S. jurisdictions determine custody using the “best interests” standard, wherein custody is granted in accordance with the promotion of circumstances that ostensibly are in the best interests of the children. In practice, this standard has been found to be vague and difficult to apply. Some states have begun to operationalize the term best interests by identifying specific factors that have an impact on a child's welfare. In turn, these factors become the specific focus of the custody evaluation process.

Custody standards for many states are informed by the Uniform Marriage and Divorce Act (1979), which specifies various factors on which the best interests standard for a specific child should be based (e.g., the interaction and interrelation of the children and their parents). Although the specific standard differs from state to state, some evidence of standardization has begun to emerge. For example, state codes typically require an evaluation of each parent's current status (e.g., employment, parenting skills), history (e.g., in terms of caretaking, substance abuse, spousal abuse), and psychological health (e.g., ability to be flexible, general mental health). The courts also are to consider the wishes of the child concerning placement if the child is developmentally able to express such wishes. In addition, the courts may flexibly consider any other factors found to be relevant. Of note, some authorities have questioned the heavy emphasis on what are ostensibly in a child's best “psychological” interests rather than on factors such as economic, educational, or medical well-being.

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