Who gets custody now? Dramatic changes in children’s living arrangements after divorce. This article reexamines the living arrangements of children following their parents’ divorce, using Wisconsin Court Records, updating an analysis that showed relatively small but significant increases in shared custody in the late 1980s and early 1990s. These changes have accelerated markedly in the intervening years: between 1988 and 2008, the proportion of mothers granted sole physical custody fell substantially, the proportion of parents sharing custody increased dramatically, and father-sole custody remained relatively stable. We explore changes in the correlates of alternative custody outcomes, showing that some results from the earlier analysis still hold (for example, cases with higher total family income are more likely to have shared custody), but other differences have lessened (shared-custody cases have become less distinctive as they have become more common). Despite the considerable changes in marriage and divorce patterns over this period, we do not find strong evidence that the changes in custody are related to changes in the characteristics of families experiencing a divorce; rather, changes in custody may be the result of changes in social norms and the process by which custody is determined.
The greater social and legal acceptance of shared custody in recent decades came about when parents began shouldering more equal parenting responsibilities. State legislatures, courts, and parents themselves began to value the opportunity for a child to continue a strong and meaningful relationship with both parents. The new approach sought to avoid treating one parent as merely a visitor, and to reduce the trauma of marital dissolution for children. Sharing custody also became a way to circumvent the brutal dynamics of adversarial child custody litigation.
An important 2014 study shows that child custody norms are significantly changing in the 21st century, with the proportion of parents sharing custody rising dramatically. In fact, we reached a major milestone in the past decade: for the first time since the mid-19th century, custodial arrangements that did not provide sole custody to mothers constituted a majority.
The vocabulary of child custody is also adapting to shared parenting.
“Decision making” and “parenting time” are replacing “legal custody” and “physical custody.” The modern terms reflect a cultural pivot toward mutual child rearing responsibilities rather than declaring a winner and a loser. On balance, then, it appears that our society has adapted the best-interest-of-the-child standard to provide some variant of shared custody. In custody cases today, both parents increasingly enjoy significant, though not necessarily equal, amounts of parenting time.
The problem with presumptions, and a better alternative
Legally enforceable presumptions, such as the one proposed and rejected in North Dakota or the one that the Governor of Minnesota vetoed in 2012, are problematic. An equal parenting presumption shifts the starting point for a custody determination from the child’s best interests to how the parents will divide the 168 hours in a week so that each parent handles half the child rearing.
A 50/50 presumption alters the critical issue from what’s best for the child to how we can treat the parents equally. That’s not the same question at all. A legal presumption of equal parenting time effectively converts the current focus on the child’s welfare to a best-interests-of-the-parents standard.
There is another alternative, better than having a judge decide the child’s best interests and far better than a legal presumption.
In the past few years, separating and divorcing parents have begun taking matters into their own hands by crafting “parenting plans” for their children. These blueprints for post-divorce child rearing allocate parenting time and decision-making authority for each child, depending on the child’s particular needs and circumstances. A good parenting plan also sets out dispute resolution options (such as mediation or a parenting coordinator) for the inevitable time when the parents will face unanticipated child rearing problems.
Many states – Arizona is a leader on the issue – are redefining the issue of parenting after divorce from a demand for custody by one parent to a requirement that both parents work together to create a “parenting plan.” These plans further the public policy goal that children have frequent and continuing contact with both parents, and that both share in the responsibilities of raising their children.
Parenting plans may be crafted from scratch, or they may be customized from a menu of templates and sample plans available from court or private organization websites. Parents often negotiate these plans by themselves, with the help of a mediator, or through counsel. The plans should be flexible but fairly detailed, describing each parent’s area of responsibility in providing for the child’s residential and physical care as well as emotional well being, both at the time the plan goes into effect and as the child ages and matures.
Unlike a court custody order, a parenting plan can include mechanisms to adjust to children’s developmental changes as they age and to other significant family transformations.
Parenting plans are homemade custody resolutions, and courts remain a last resort for deciding contested custody cases. But the parenting plan movement is providing approaches towards sharing custody more in keeping with child development research and less likely to lead to further damaging litigation.
The failed North Dakota “equal parenting time” initiative sought a rigid resolution of the most sensitive
Our society is gradually adopting shared parenting by choice, not by mathematical formula. We should encourage the movement toward parenting plans rather than legal briefs, mediation rather than litigation, and sharing the parenting rather than dividing the child.