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

The Determination of Child Custody
Joan B. Kelly

Influences on Decision Making

Regardless of the level at which custody decisions are made, powerful influences on these decisions arise from statutory, judicial, cultural, educational, and research sources. Certainly most powerful in influencing custody outcomes are the statutes governing each state and the related case law which has evolved to test, modify, or expand the intent of the statutes. Although only a small percentage of litigating parents require judicial decision making, statutory law pervades all lower level decisions, as attorneys and parents negotiate "in the shadow of the law."72 The reliance upon legal and judicial precedent for making decisions is at the heart of the adversarial process and limits diverse or innovative outcomes. At the parental level, if a parent seeks an agreement which is at odds with state or case law, the parent's attorney will either discourage that option73 or advocate trial and appeal in an attempt to create new case law.

Cultural traditions and socioeconomic factors also heavily influence parental decision making about custody and visiting. The predominance of mother-custody families reflects the mainstream American cultural view that women should be the primary caretakers for children after divorce. In some ethnic minority groups, the role of extended family support systems and the strength of kinship bonds will be powerful determinants of the custody and visiting patterns. Among ethnic groups, for example, that encourage divorced mothers to move back into their parents' home, the father's role may become even more peripheral than in families where the mother lives alone with the children.74 Socioeconomic factors, such as employment, education, and level of income, also influence decision making, particularly the amount of contact that nonresident parents will have with their children,46,49,74,75 in part because they determine such parents' ability to maintain a separate residence large enough for the children or to travel for visits when separated by long distance.

The use of mediation to settle custody disputes may also influence parental decision making, although the direction and degree of this influence will depend upon the range of custody options available within a jurisdiction. Mediators describe various options for parents to consider when parents are at an impasse. This feature of mediation is accorded high levels of approval from both men and women.57,59,76

Educational materials and parent education programs are also influencing the decision making of parents, attorneys, and judges. In many courtrooms across the country, divorce-related educational video presentations are required viewing for parents disputing custody or visiting matters.77 Most materials seek to educate parents about the impact of divorce and conflict on their children, and children's need for continuity in their relationships with both parents after divorce. The effectiveness of such materials or divorce-related parent education classes is relatively unknown, although one study found that noncustodial parents in an educational intervention group had more contact with their children one year later when compared with parents in the control groups.78 And some books written for parents have influenced both parents and attorneys in making custody arrangements.16,17,19,35

Research on the effects of divorce on children, including postdivorce parent-child relationships and the adjustment of children in sole and joint custody, has had widespread influence on decision making at parental, judicial, and legislative levels.19,28,35,79 For example, the dissatisfaction of children in mother-custody homes with twice monthly weekend visitation and their sadness and/or depression resulting from the diminished presence or the loss of the father from their lives 19,28,80,81 provided a strong impetus in many jurisdictions to encourage increased access of the father to the child after divorce.

Debate continues regarding the extent to which social science should be used to influence legislation, judicial practices, or parental decision making. Because of flaws in methods and samples, divorce studies have been of varying usefulness, and most have used measures that assessed pathological child behaviors or symptoms to the exclusion of more healthy or coping behaviors. The studies have, for the most part, also neglected to obtain data from fathers and children, and have not measured parental adjustment and the quality of both parent-child relationships. While clearly there is growing convergence on a number of divorce-related findings,38,79 they currently remain inconclusive or contradictory with respect to a number of important issues, and continued well-designed research is needed. The current practice of feminist writers and fathers' rights groups to use a particular research finding to bolster a political or gender-linked point of view while ignoring other data makes it difficult for legislators, judges, attorneys, or parents to obtain a balanced, informed view.