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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

The Determination of Child Custody
Joan B. Kelly

Introduction

The process for determining custodial arrangements for children of divorce is important to parents, their children, and society. Because children's well-being is dependent, in large measure, upon the extent and quality of parenting received throughout their childhood, it is in society's interest to ensure that children will have the best possible upbringing after divorce. The roles that parents are expected to assume in raising their children during marriage and after divorce have changed considerably over time from both a societal and a legal perspective, and continue to evolve today.

An understanding of how custody is determined is complicated by the fact that custody laws differ from state to state, and judicial and social practices vary considerably across the country. In addition, clear legal rules presuming that custody should be awarded to the father or to the mother have been replaced by less well-defined standards for making custody decisions. And as societal norms more recently 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. The purpose of this article is to present the historical and current perspective of the process of custody determination, and to acquaint the reader with the continuing struggle in our society and legal systems to make custody decisions which will be beneficial to children and fair to their parents.