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

The Determination of Child Custody
Joan B. Kelly

Type and Incidence of Custody Arrangements

Nearly all states have distinguished in their legislation, either explicitly or implicitly, between legal custody, which refers to decision making regarding the child's health and welfare, and physical custody, which refers to the living arrangements of the child on a day-to-day basis. Table 1 describes different types of possible custody arrangements. Considerable variation exists among states in the definition of joint custody and the circumstances under which it is permitted or denied.32 Because joint physical custody statutes do not require fifty-fifty time sharing or define how much time the child resides with each parent, actual resident time may range along a continuum from somewhat expanded visiting to equal time in each household. Most noncustodial parents seeking joint physical custody object to being a visitor in the child's life and want their child to live with them at least part of the time rather than visit infrequently. One study found that, when joint-custody parents do not have equal time sharing, mothers always have the larger share of time.34

The legal trend over the past decade has been to favor shared parental legal authority over shared residential custody.31 It is not possible to determine, on a national basis, what percentage of parents have joint legal or physical custody, as these data must be obtained from individual divorce decrees. Studies in California and Massachusetts indicate that the incidence of joint legal custody rises dramatically when statutes permit it,35,38-40 with three California studies finding joint legal custody in 80% to 90% of decrees in the mid-1980s.35,38,40

The number of joint physical custody orders also increases after enabling legislation is passed, but at a much lower rate.35,39-41 In the absence of national data, regional studies suggest that joint legal and sole maternal physical custody is today the most common legal custody arrangement in the United States, followed by sole legal and physical custody to the mother. Divided and split custody orders are rare, accounting for less than 5% of orders.35,39 While judges appear to share society's belief that siblings should not be separated, such arrangements evolve informally between parents in the years after divorce, particularly with older children.19,35,42

Despite changes in law and social custom over two decades, physical custody arrangements have remained rather stable. In the 1970s, women had sole custody of the children 85% of the time, and men retained sole custody 10% of the time, with the remaining 5% a variety of other custody arrangements.43 Recent studies, based on census and survey data that reflect which parent has the child in residence more than half the time, indicate that father-custody figures may be closer to 15%.44

However, the incidence and type of joint physical parenting arrangements are difficult to determine. In divorce research, living arrangements are categorized as joint physical custody when the child lives with one of the parents from 30% to 50% of the time.35,41,45-47 Using this criterion, between 17% to 34% of families shared physical custody in the mid-1980s in a jurisdiction (California) permitting joint custody.35,41,45 Because these are not random sampling studies, actual rates outside the San Francisco Bay Area and California may be lower. Studies in other states indicate that from 12% to 24% of children are visiting their fathers often enough to be considered living in shared residence arrangements.48,49 All studies find that shared custody is more common among more educated parents.35,41,46,47,50