Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994
Child Custody Concerns
Although the advent of joint and shared custody alternatives has broadened the range of options that divorcing couples can consider when negotiating the physical custody of offspring, mothers still overwhelmingly predominate in physical custody awards. By some estimates, 85% to 90% of children of formerly married parents reside with their mothers while only about 10% live with their fathers.8 While joint physical custody arrangements alter these figures somewhat, children in joint custody are still much more likely to end up with their mothers than their fathers.6
To a great extent, these arrangements reflect prevailing social realities concerning who cares for children. Despite recent evidence for enhanced paternal involvement with offspring (and the popularization of "involved dads"), the consensus of current research indicates that mothers assume primary responsibility for domestic labor and child rearing, even when they also work outside the home.9 Given that many mothers assume a disproportionate role in the lives of their children, it is reasonable that, when custody requires a choice between mothers and fathers, mothers are more often awarded physical custody of offspring. Indeed, because the large majority of custody arrangements are privately negotiated by parents and judicially accepted,10 the predominance of maternal custody might be viewed as parents' consensual decisions rather than the outcome of judicial judgments.
But the overwhelming predominance of maternal custody remains surprising even in light of these social realities and suggests that other processes may also be at work. For example, fathers may agree to maternal custody awards because they believe that they could achieve no better than a visiting relationship with offspring if they were to dispute such a claim, even if they believed they deserved a more generous arrangement (such as joint or sole custody). There is some evidence that this might be true in an important longitudinal study of 1,100 divorcing California couples with children conducted recently by Eleanor Maccoby and Robert Mnookin of Stanford University.6 In the mid-1980s, these scholars and their colleagues interviewed parents periodically throughout the divorcing process, beginning with the initial separation and continuing for several years after the divorce. They compared each parent's preference for the custody award shortly after the petition for divorce was filed with what that parent formally requested, as well as with the actual custody award in the divorce decree. They discovered that the overwhelming majority of mothers (82%) wanted sole physical custody of offspring, and this is what the large majority of them requested and, eventually, achieved from the court. By contrast, fathers initially wanted a broader variety of custody arrangements—paternal, maternal, and joint custody in roughly equal proportions—but more than one-third of them did not actually request as much physical custody in the divorce petition as they wanted. That is, fathers who wished for sole or joint physical custody did not file a request for it or, instead, requested maternal custody. In short, mothers were far more likely to act on their stated desires for custody than were fathers.11
Why was this so? Maccoby and Mnookin suggested that many fathers may have decided that their efforts to achieve a more generous physical custody arrangement were likely to fail in the face of the mother's determination to have sole physical custody of offspring. There was, in fact, considerable reason for their fear. The Stanford study reported that, when parents made conflicting physical custody requests, mothers' requests were granted about twice as often as fathers' requests. Indeed, even when both parents agreed that fathers should have sole custody of offspring, judges contravened this agreement about one quarter of the time. The authors concluded that: "[A]lthough gender stereotypes are no longer embedded in the statute books themselves, and California law is certainly viewed as sympathetic to more androgynous forms of physical custody, the actual custodial outcomes still reflect profound gender differentiation between parents: the decree typically provides that the children will live with the mother."12Problems in Applying the "Best Interests" Standard and the "Primary Caretaker" Presumption
The "Best Interests" Standard
One of the obstacles men encounter in considering whether to ask for an enhanced future role in the lives of offspring is that the vagueness of the "best interests of the child" standard provides courts with considerable latitude to interpret children's needs in various ways. If many judges believe, for example, that children properly belong in maternal care—especially during their early years—the "best interests" standard provides the flexibility necessary to justify such a decision, regardless of the meaning to the child of the relationships she or he shares with each parent. Indeed, the preeminence of maternal custody awards could reflect, in part, the continuing influence of the "tender years doctrine" in the minds of many judges and their belief that mothers are better suited than fathers for the care of children.13 Fathers who must negotiate with their wives over custody issues realize that, if their dispute comes to court, their chances of achieving a more generous custody settlement are remote at best.6 As a consequence of this "bargaining in the shadow of the law,"14 fathers may not press for the kind of custody arrangement that they prefer and that, they might believe, reflects children's best interests because it allows them a more meaningful, continuing role in the child's life.
The "Primary Caretaker" Presumption
The vagueness of the "best interests of the child" standard has led to a search for presumptive standards that can more reliably guide custody decision making.10,15 A presumption that has been long advocated by legal scholars and social scientists is to award custody to a fit parent who is the child's "primary caretaker."16 By ensuring the child's continued contact with the parent who has assumed the predominant role in parenting, it is argued, courts can advance the child's best interests. How do courts determine who is a child's "primary caretaker"? The criteria used in West Virginia have been articulated by Richard Neely, Chief Justice of the West Virginia Supreme Court of Appeals. According to Neely, the "primary caretaker" may be defined as the parent who "(1) prepares the meals; (2) changes the diapers and dresses and bathes the child; (3) chauffeurs the child to school, church, friends' homes and the like; (4) provides medical attention, monitors the child's health, and is responsible for taking the child to the doctor; and (5) interacts with the child's friends, school authorities, and other parents engaged in activities that involve the child."17
Similar criteria are enunciated in other standards.18 Are these adequate criteria for identifying the parent whose relationship to the child merits custody? Are they appropriate for children of all ages? Although efforts to identify the child's "primary caretaker" have the appeal of providing a straightforward, apparently valid, and readily assessable means of distinguishing parenting roles and relationships, it is not necessarily an easy task to define this status in a manner that is appropriate to children's changing developmental needs and competencies. Chief Justice Neely's criteria are obviously well-suited to infants and very young children for whom, as he remarks, "[t]his list of criteria usually, but not necessarily, spells 'mother.'" But as children mature, their psychological growth demands far more multidimensional parental roles and responsibilities. Where, among these criteria, is the importance of play, moral instruction, gender socialization, and academic encouragement—responsibilities mothers and fathers share more equally in typical families and in which fathers often assume a leading role?19 Indeed, as I suggested ten years ago when advancing the primary caregiver presumption in custody decision making, it is not at all clear that distinctions can be made between primary and secondary caregiving roles in many families with children above age four because of the diversity of children's needs and the multidimensionality of parenting roles and responsibilities.20 Because both parents assume meaningful but different roles and relationships with offspring, each parent is a "primary caretaker" of older children in different ways, and custody decisions might better focus on maintaining relationships with each parent rather than just the "primary" one.
Moreover, it is not at all clear that, when both parents assume some responsibility for the child's bathing, feeding, health, and basic care—that is, when both parents are involved to some degree in the child's well-being—the relative extent of their responsibility for these tasks defines the most significant dimension on which to rest a custody decision. In a sense, Chief Justice Neely's criteria for defining "primary caretaker" status are among the least meaningful indices because basic maintenance tasks like meal preparation, dressing, bathing, and chauffeuring can be readily assumed by either parent regardless of the level of his or her predivorce responsibility for these concerns. Many of these responsibilities are activities done for the child rather than with the child.21 The focus of a custody inquiry should properly be the meaning and significance of each parent's relationship with the child, which is far more difficult to assess and which is not easily indexed by inquiring which parent regularly dressed and bathed the child. Substituting quick evaluations of parental responsibility for maintenance care for a searching inquiry into parent-child relationships does not contribute to valid or meaningful child custody decisions.
Alternatively, one could regard the award of custody to the primary caretaker as a reward for prior caretaking involvement, regardless of the relative significance of parenting relationships to the child.22 Legal scholar Martha Fineman offers such an argument in which she explicitly urges disregarding the quality of the relationship between parents and children. In response to criticism that such an approach disadvantages fathers in application, she notes, "[i]f fathers are left out, they can change their behavior and begin making sacrifices in their careers and devoting their time during the marriage to the primary care and nurturing of children. Men can exercise the same 'free' choice that women traditionally have in these matters, adjusting their outside activities to care for their children."23
But is this realistic? The same sexist society that denigrates the earning potential of women makes it harder for men to make career sacrifices in favor of enhanced caregiving involvement with offspring when they are primarily responsible for supporting the family. For many parents, in fact, the mutual allocation of economic and domestic responsibilities is based on a realistic assessment of each spouse's current and potential contribution to family income that partly derives, however unfairly, from cultural sexism in earning power for which neither is responsible. The result is that, for many men, assuming a lesser-paying (but more flexible) job or taking a leave of absence to help care for offspring simply is not an option without undermining the family's standard of living. But under the "primary caretaker" presumption, this decision is penalized because "good providers" are also "secondary caregivers"; moreover, their prior economic support responsibilities obligate them to postdivorce support responsibilities also. Just as the postdivorce earning potential of mothers is hampered by their predivorce caregiving commitment, the capacity of fathers for a meaningful postdivorce caregiving role is undermined by their predivorce economic support responsibility under the "primary caretaker" standard. Sexism in our society functions both ways.Fathers as Caretakers
Defining the child's "primary caretaker" in terms of the basic maintenance responsibilities commonly assumed by mothers might also be justified if we believed that men were, in general, inadequately prepared to assume a primary caretaking role.24 But of all the arguments supporting the criteria for defining "primary caretaker" status as outlined above, this is the least convincing. A large research literature examining the caretaking capabilities of fathers reveals extraordinary competence in child care, even of infants, for whom greatest doubt has traditionally existed concerning male caretaking competency.19,25 Although fathers typically defer to their wives the basic maintenance care of young children (a responsibility their spouses also often prefer to assume26), researchers have consistently found that, when fathers are asked to feed, bathe, and otherwise nurture their young offspring, they behave very much like mothers. They are comparably sensitive and responsive to infant cues, they show comparable concern and attention, and their nurturance is comparably successful (that is, infants are adequately fed and bathed). And not surprisingly, infants respond to paternal caretaking as they do to maternal care: infants develop deep emotional attachments to their fathers that do not depend on the security they derive from their attachments to mothers.27 As children mature, fathers are involved in the lives of offspring in increasingly more diverse ways as role models, teachers, homework consultants, and disciplinarians. In short, caretaking competence—defined narrowly or broadly—is not gender-specific.
The same conclusion applies to studies of single fathers, whether their parenting status occurs through a divorce custody award or in other ways. Although single fathers often express concern about their ability to assume the responsibilities normally shared by two parents (as do many single mothers), researchers have consistently found that children living with single fathers are well-adjusted. In single-father households, domestic tasks are adequately managed, and employment and domestic responsibilities are satisfactorily juggled (with some effort).25,28 There is some evidence that sons fare better with single fathers than do daughters,29 but children of each sex receive good care. Moreover, children in single-father care are more likely to enjoy positive relationships with both their mothers and their fathers than are children with single mothers, partly because noncustodial mothers have more success maintaining continuing contact with offspring.6,30 In short, studies of single fathers reveal that their personal experiences and their child care practices are strikingly similar to those of single mothers.
Taken together, therefore, it appears that differences between men and women are not primarily in caregiving competence but in the assumption of caretaking responsibilities. Why, then, do fathers not normally assume a stronger role in the basic care of young children? Summarizing the diverse answers that have been offered to this question is beyond the scope of this discussion, but any answer is incomplete which neglects the gender-typed socialization that contributes to how fathers perceive their roles and responsibilities in relation to offspring.31 In a sexist society that continues to address child-rearing advice almost exclusively to women, that calls fathers-to-be "coaches" (a replaceable role in the sports world) in Lamaze classes and "donors" in surrogate parenting cases, and that still regards the paternal role primarily in terms of economic support, it is perhaps not surprising that men approach the role of fatherhood with considerable uncertainty concerning role expectations, responsibilities, and options. The same society also offers powerful images of fatherhood that alternate idealized "good (involved, nurturant, responsibility-sharing) dad" portrayals with demonized "bad (deadbeat, absent, career-oriented) dad" images32 when the reality involves deeper conflicts, compromises, and contingencies. The expressive function of the law itself should not be ignored: the enforcement of the economic obligations of divorced and unwed fathers for offspring without assurances of a meaningful parenting role in the child's life also provides powerful messages to men concerning the limits of their paternal role. In the end, while there is evidence that paternal caregiving involvement is incrementally increasing,9 parity with the high levels of maternal investment in children is unlikely to occur soon in a society that is itself ambivalent about the father's role.Joint Custody as an Option
In light of these considerations, it is perhaps apparent why many fathers have welcomed the movement toward joint custody as a viable custody option in many jurisdictions. In the face of a spouse with a concerted claim to custody, joint physical custody presents fathers with the opportunity to assume a significant parenting role in the lives of offspring without having to deny mothers their legitimate interests also.33 Moreover, when parents are capable of reasonable cooperation on behalf of offspring, joint custody can potentially benefit children by enabling them to maintain access to each parent in a manner that preserves some of the beneficial qualities of predivorce family life. Although joint custody can be a disadvantage to children when parents remain in serious conflict, it is not yet clear how much interspousal cooperation is required to ensure the benefits of joint custody. For example, many parents remain distant and disengaged after divorce, but not acrimonious.6 (See the article by Johnston in this journal issue.) At its best, joint custody presents the possibility that each family member can "win" in postdivorce life rather than insisting that a custody decision identify "winners" and "losers": mothers and fathers each win a significant future role in the lives of offspring, and children win as a consequence.34
The controversy surrounding joint custody concerns how joint custody is awarded.35 Few argue that joint custody should be denied divorcing spouses who mutually wish to share custody of offspring (although some critics would reasonably seek to ensure that this did not result from coercive predivorce bargaining). Disagreement exists, however, over whether courts should have the option of awarding joint custody over the objections of one parent. The reason for this concern is that the success of joint custody—especially its potential benefits to children-depends on the capacities of each parent to cooperate on behalf of offspring, and a parent who is coerced into a joint custody arrangement may be unlikely to cooperate. Moreover, critics contend that, if judges are capable of awarding joint custody over the objections of a parent—typically the mother—it adds to the bargaining leverage of the partner, who may negotiate unfairly by raising a non-serious claim to joint custody of offspring. This unfair bargaining leverage is enhanced when statutory joint custody provisions are accompanied by "friendly parent" provisions that instruct courts to consider, if joint custody is not awarded, which parent would best facilitate the child's continuing relationship with the other parent. The parent who requests joint custody is more likely to be regarded as the "friendly parent" and may be at an advantage in seeking sole custody if joint custody is denied.
These objections have merit. But it is important to remember that remedies to correct potential bargaining inequities may create new inequities in their place. When joint custody is awarded only by the mutual consent of both parents, the parent who would otherwise receive sole custody has a significant bargaining advantage over the partner because it is only with this parent's consent that the partner can achieve joint custody. Thus under current conditions, mothers can effectively veto the prospect of joint custody—or threaten to do so—with the assurance that doing so will not hinder their future contact with offspring. Indeed, in the Stanford study,6 mothers received sole custody of offspring more than two-thirds of the time when their request for sole custody conflicted with fathers' request for joint custody.
It seems unfair to invest so much bargaining leverage in one partner, especially when reasons for the denial of joint custody need not be demonstrably tied to children's needs or interests. A wiser course is to institute a judicial presumption concerning the desirability of joint custody contingent on the agreement of both parents, children's preferences, and other evidence concerning the workability of joint custody for the particular family in question. In such circumstances, one partner's objection to joint custody would not be sufficient to impede this option without additional evidence that joint custody is inconsistent with children's best interests in the custody decision. Merely to assume that a parent who initially objects to joint custody would make this arrangement untenable underestimates the capacity of parents to adapt to caretaking arrangements that benefit offspring and neglects the adaptations that are inherently required of each parent by the transition to postdivorce life. Moreover, the transition to a successful joint custody arrangement could be facilitated by predivorce counseling and/or mediation that would help parents create a plan to implement joint custody in a manner that accommodates the needs and concerns of each. Just as parents must strive to adapt successfully to patterns of single parenting and noncustodial visitation in the interests of offspring—and usually they do6,36—so also must they adapt to make joint custody successful in the interests of offspring, even though one parent may not have initially sought this arrangement.Future Directions
In the end, the preeminence of maternal custody awards not only disadvantages men but may also work against children, whose interests (especially after the early years) may be misrepresented by the perpetuation of "tender years" assumptions in judges' applications of the "best interests" standard and the "primary caretaker" presumption, and by the effects of these judicial assumptions on their parents' predivorce bargaining over custody. As Herma Hill Kay has noted concerning the "primary caretaker" standard, "The predictability that such a presumption brings to custody awards is purchased at the cost of legitimating the maternal preference under an easily penetrated veneer of gender neutrality that effectively excludes the vast majority of fathers as potential custodians. Contemporary social, cultural, and economic factors all tend to inhibit fathers from any realistic commitment to qualifying as the primary caretaker of children. Indeed, the normative effect of such a legal preference actually might tend to discourage fathers from participating in the care of their children during marriage while reinforcing the existing cultural directive that women ought to regard mothering as their primary role."37 The preeminence of maternal custody not only reinforces undesirable cultural portrayals of the capacity and willingness of men to nurture but also does so for women, whose postdivorce options are shaped by the expectation that they will assume sole custody of children.
In an insightful recent analysis, Elizabeth Scott has criticized contemporary custody standards for failing to maintain the complementary parental roles and responsibilities that characterized predivorce life.38 She urges an alternative standard that would seek to approximate, in custody and visitation arrangements, the sharing of responsibilities that had previously existed. Moreover, if one of the goals of wise public policy concerning divorce is to foster the child's continued, unconflicted relationships with each parent, it is perhaps desirable to guide parents' private ordering of custody matters under new rules that encourage joint parenting after divorce, either in formal joint custody arrangements or in parenting plans39 that provide each partner with a meaningful future relationship with children. Such plans would emphasize the responsibility of each parent for maintaining continuing obligations to children after divorce for care, financial support, and other responsibilities in the context of explicit guidelines concerning parental obligations and prerogatives. A presumption that joint legal custody would be shared by each parent after divorce might also help to encourage shared parenting. Greater explicit consideration of the child's wishes in custody-related matters may also be desirable, especially as they are incorporated into parenting plans and future modifications of custody and visitation agreements. Unfortunately, current rules that enable one parent to veto the option of joint custody and that portray "primary caretakers" as mothers will only continue the status quo.