New Trends in Child Custody

When Ed V. separated from his wife of 18 years, his 5-year-old son almost got caught in the middle of a fiery custody battle. "At first my wife said, ‘Well, I want custody,’ and I thought I would lose my son because I’m a guy. So I was going to fight her and get full custody."

Now, a year later, Ed sees things differently. "When you’re in the beginning stages [of divorce], you might be very angry, but in the end you realize that it’s not good for your child. I’m still angry and bitter with her, but we eventually worked out a plan for raising our son.

"Now I understand that if my son’s mother is relatively happy, then he’ll be happy. If my son wants to call his mommy, he’s going to call mommy. I don’t want to put any barricades between my son and my ex-wife."

Ed and his ex now live within a mile from each other, take turns driving their son to school and join together as a family for their son’s birthday and other important events in his life. In fact, the parenting plan that the couple have worked out is the type of arrangement that most family law courts strive for.

According to the U.S. Census Bureau, nearly half of all marriages in the United States end in divorce. Last year, approximately one million children were affected by custody issues. This experience can be overwhelming, even devastating, for children, which magnifies the importance of how the ultimate fate of a child caught up in a divorce is determined.

Custody Law Through the Years

Through most of American history, fathers "owned" their children in the same way they might own a horse or a piece of property, so there was never any legal question about who got custody. In fact, if a father wished to do so, he could deprive his wife of all contact with her children.

By the end of the 19th century, however, courts had reversed their position entirely and began to favor the mother, applying the "tender years" doctrine, which stated that during a child’s early years only a mother could provide the love and nurturing necessary to child-rearing.

In the 1970s, amidst challenges that the tender years doctrine discriminated against fathers, courts began to move toward a gender-neutral analysis. Currently, all but five states (Alabama, Louisiana, Mississippi, South Carolina and Tennessee) mandate that courts treat parents equally when determining who gets custody of the children.

‘Best Interests’ – Do Dads Lose Out?

When deciding custody, most courts today use a "best interests test," which asks: What arrangement will be in the best interest of the child? Judges consider every facet of a parent’s relationship with the child, including:

  • the wishes of the parent or parents;

  • the wishes of the child (if the child is of an age old enough to make a reasonable decision);

  • the interaction and interrelationship of the child with his parent or parents, siblings and any other person who may significantly affect the child’s best interest;

  • the child’s adjustment to his home, school, and community; and

  • the mental and physical health of all individuals involved.

    Even with this seemingly gender-neutral approach, women are still granted custody in 90 percent of all cases, and in about 50 percent of cases that are contested. The Census Bureau reports that fathers currently head 23 percent of single parent households. According to Jeff Atkinson, an attorney who specializes in child custody law and author of the American Bar Association’s Guide to Family Law, there are several reasons women get custody more often:

  • Primary Caregiver – In determining what is in a child’s best interest, most courts ask who is the child’s primary caregiver. That is, the person with whom the child has established emotional and physical bonds, or, as one court stated, "the person who, before the divorce, managed and monitored the day-to-day activities of the child and met the child’s basic needs including: feeding, clothing, bathing and protecting the child’s health." This primary caretaker element is the most significant factor in deciding custody and, statistically, women are far more likely than men to assume this role. Men who fill the traditional role of primary economic provider are then penalized for not being the primary nurturer.

    "Court decisions reflect the patterns of parenting that are dominant in the United States," Atkinson says, although he does note a slow movement toward paternal custody. "Fathers as a group are becoming more inclined to participate in raising children, and since mothers are more likely to take part in the workplace, fathers are assuming the role of primary caretaker to a greater degree than in the past."

    As fathers become increasingly involved in their children’s lives, they will be granted custody on a more equal basis, he says.

    Armin Brott, author of The Single Father: A Dad’s Guide to Parenting Without a Partner, believes the whole idea of primary caregiver is unfair to those traditional fathers who bear the responsibility of financially supporting their family.

    "The way our society is set up, the definition of a ‘good father’ is one who provides for the family," Brott says. "But the ‘primary caregiver’ concept places a huge amount of emphasis on driving the kids to soccer practice, helping with their homework and going shopping with them, and no importance on the fact that the father had to be at work to provide the money to put shoes on their feet."

    Brott urges fathers to continue playing a role in their child’s daily life despite any bitterness that may erupt after a divorce. "Being satisfied with every other weekend may be their easiest and least confrontational way to get out of a marriage, but it is not the way that is going to help their children," he says.

  • Judges’ Attitudes – Another factor for the gender-based disparity in custody awards is that some decisions are simply reflections of individual judges’ attitudes with regard to parental roles.

    "Despite the fact that our laws may indicate that they decide cases without sexual bias for mothers," says the ABA’s Atkinson, "it’s what’s in the heart of the individual judge that ultimately affects each case."

    Still, Atkinson notes that judges as a whole are applying fewer prejudices today than they were 20 or 30 years ago. The law gives them the opportunity to evaluate the facts of each case more carefully. Court systems also have better support services to help judges resolve issues. For example, some courts direct parents into a court-supervised mediation, and others use social service agencies that bring information to the court about the individuals involved.

  • Moms’ Earning Power – Mothers also complain that the best interest test sometimes works against them. To the degree a judge considers the economic situation in the home, most women cannot help but be disadvantaged since women as a group earn 76 cents on the dollar compared to men, according to the U.S. Department of Labor. For that reason, some states disallow the use of earning capacity in determining the best interests of a child. Moreover, some judges tend to view a woman as being a bad parent for working outside the home or attending school.

    Joint Custody: States Differ Widely

    Rather than grant custody to one parent, many courts grant "joint custody." Joint custody has two meanings.

  • Joint legal custody refers to both parents having decision-making power over major issues related to the child’s health and welfare.

  • Joint physical custody refers to how a child’s time is divided between each parent’s home.

    Typically, joint legal custody is awarded on a 50-50 basis to each parent, but joint physical custody is sometimes given more to one parent than the other so that the child has a primary home.

    All but three states (Arkansas, New York and North Dakota) now provide for some form of joint custody. Most require the judge to assume that joint custody is best for the child unless the parents can prove otherwise, but each state’s laws are slightly different.

    Texas, for example, does not allow a judge to decide on appropriate visitation hours, but rather has a statute that details the exact amount of hours to which a non-custodial parent is entitled. Michigan revokes the driver’s license of a parent who denies the other parent his or her visitation rights.

    Brott urges fathers to continue playing a role in their child’s daily life despite any bitterness that may erupt after a divorce. "Being satisfied with

    California has historically led the way in advances in child custody law. It was one of the first states to abandon the automatic preference for mothers and implement the idea of joint custody. Recently, however, California has pulled back in its push toward joint custody and is instead using "parenting plans." Under this emerging concept, there is a presumption of joint custody only if both parents agree to it. If they disagree, then joint custody is just an option that the court may or may not use.

    "The concept of developing a parenting plan is becoming more important than old-fashioned issues of custody," says Anthony Miller, professor at Pepperdine Law School and author of a leading legal textbook on the subject. "It’s a schedule and an agreement on how to raise a child regarding matters of discipline, religion, education, dietary practices and athletic activities, as opposed to who has the legal decision making power."

    Parents are mandated by the court to come up with a parenting plan similar to the one Ed V. and his ex-wife devised. A parenting plan is also financially wise since contested custody battles can sometimes cost tens of thousands of dollars and last up to two years.

    Focusing on the Child

    Most important, parenting plans force the parents to focus on the child’s needs and not their own. Divorce may be painful for adults, but it can be much worse for children, who may find themselves hurt and depressed, regardless of who ultimately obtains custody.

    Atkinson’s advice also centers on the child and suggests that both parents "keep focusing on what is best for the child and try to focus less on anger and on the other parent. There may be a desire to get even; that’s understandable. But for children to grow up in a healthy way, they need a relative amount of peace, and they need to know they still have two parents who love them."

    Trends in Custody Law: Resources


  • American Bar Association Guide to Family Law, by Jeff Atkinson, Times Books, 1996.

  • The Single Father: A Dad’s Guide to Parenting Without a Partner, by Armin Brott, Abbeville Press, 2000.

    Web Sites

  • American Coalition for Fathers and Children – – advocates for the creation of a family law system, a legislative system and public awareness that promote equal rights for all parties affected by divorce or establishment of paternity.

  • Woman’s – – is dedicated to helping women get the best outcome from their divorce.

  • Divorce – – offers a vast array of resources devoted to issues that affect divorcing families: legal forms, answers to relationship and other kinds of questions, a library, state-by-state resource lists and bulletin board for many divorce-related topics.

  • – – is a general legal information site with a section on divorce and family law.

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