Child Custody Arrangements: Their Characteristics and Outcomes

2004-FCY-3E

4. FACTORS AFFECTING CUSTODY ARRANGEMENTS

4.1 Legislation

Changes in family law legislation may contribute to changes in the occurrence of different custody arrangements.

In the United States, the incidence of joint legal custody increased greatly as a result of statutory changes (see for example, Maccoby et al., 1988). Kelly (1994) which suggests that this increase is much larger than the increase in joint physical (shared) custody.

In some U.S. states, an increase in shared custody arrangements being set out in divorce decrees since the 1980s seems to be due to changes in legislation. For example, in Wisconsin, according to final divorce judgements in court files, the proportion of couples with shared custody rose from 2 percent in 1980 to 14 percent in 1992.  The proportion of sole maternal custody arrangements fell correspondingly; while the proportion of sole paternal custody and split custody arrangements remained approximately the same over this period (Brown et al., 1997; Cancian and Meyer, 1998).[6] Since this research was confined to court data, the extent to which these arrangements reflected the actual living arrangements of the children is not known.

In California, studies have shown that since 1980, when joint physical custody became an explicit option, the number of families who selected this arrangement has increased substantially, according to court records (Kelly, 1993). On the other hand, Kelly also notes that physical arrangements did not greatly change between the 1970s and the early 1990s: "despite changes in the law and social custom, custody arrangements remained remarkably stable over the past three decades" (Kelly, 1994). In California, despite enabling legislation in the 1980s, shared custody did not increase dramatically—the mother typically gets physical custody and both parents share legal custody (Maccoby et al., 1988).

In Australia, the third year of the Family Law Reform Act 1995 brought a small increase in dual residence (shared custody) orders in interim and final judgments, but the sample of judgments was small (Rhoades et al., 2000: 46-9). However, the increase in dual residence may not be due to the change in legislation. Interviews suggested that many shared residence arrangements were reached without legal assistance and without the parents knowing about the new legislation.

4.2 Social and Demographic Characteristics of the Family

4.2.1 The Number, Gender and Age of the Children

Pearson and Thoennes (1990) used interview data from divorcing couples in mediation in several communities across the United States. The study design was longitudinal—respondents were interviewed at least three times after separation. The sample was neither random nor nationally representative although it drew cases from a number of cities. A sizable proportion of the sample was made up of couples who initially disagreed about custody and access but who resolved their differences in mediation. In this sample, 70 percent of the parents with shared custody arrangements had only one child, compared to 33 to 52 percent of parents with other custody arrangements. Conversely, Canadian researchers found that parents in their shared custody sample typically had two children (Irving et al., 1984).

Buchanan et al.(1996) found that boys were disproportionately in shared and sole paternal custody arrangements.[7] The children were between 10.5 and 18 years of age, and the residential arrangements were those that were in place four to five years after separation. In Wisconsin, boys were more likely to be initially in a sole paternal custody arrangement. When all the children were boys, the likelihood of shared custody increased (Brown et al., 1997: 16; Cancian and Meyer, 1998).

In the Canadian National Longitudinal Survey of Children and Youth (1994-95 cycle), court-ordered custody arrangements at separation differed somewhat by the age of the children. Younger children (aged 0 to 5 year-old) were slightly less likely than older (6 to 11 year-old) children to be in a shared custody arrangement—12 percent and 16 percent respectively (Marcil-Gratton and Le Bourdais, 1999: 19). The researchers point out that among 6- to 11-year-olds, almost one child in four was formally in the care of his or her father either exclusively (8 percent) or jointly with his or her mother (16 percent).

Seltzer (1990), as well as other researchers, reported that families with sole paternal custody are more likely to involve older children than those with other arrangements.  Seltzer hypothesized that family composition is more closely associated with physical custody than is the economic status of the family (see section 4.2.3).  Younger children were less likely to be in a sole paternal custody arrangement, but when all children were older than 11 years of age, the proportion of fathers with sole custody increased (Cancian and Meyer, 1998).  Similarly, Nord and Zill (1996) reported that in their national sample the youngest child was 12 years or older in 51 percent of families in which the father had sole custody compared to 28 percent of families in which the mother had sole custody.  Finally, in the mediation samples Pearson and Thoennes (1990) used, the average age of children in sole paternal custody arrangements was 10, whereas it was 8 in families with sole maternal custody arrangements.

In split custody situations in Wisconsin, the children were also usually older (Brown et al., 1997).  The division was frequently along gender lines:  boys lived with their father and girls with their mother.  In this examination of court data, children in shared custody were about the same age as those in mother custody, but younger than those in split custody and marginally younger than those in father custody.  That is, children in split custody were older than those in other arrangements, with the next oldest group being found in father custody.

4.2.2 Age of the Parents

In Wisconsin, the age of parents and the average length of their marriage were greater in split custody than in the other arrangements (Brown et al., 1997).  The 1991 panel of the Survey of Income and Program Participation, also from the United States, found that fathers with sole custody were older than mothers with sole custody:  23 percent of fathers were 45 years of age or older compared to 9 percent of the mothers (Nord and Zill, 1996).

4.2.3 Socio-economic Status

The relationship between socio-economic status and custody type has been discussed by many researchers (e.g. Seltzer, 1990; Maccoby and Mnookin, 1992), who report that parents with shared custody are more likely to be middle class or professionals and be better educated than parents with other arrangements.  These findings are in line with other research that found that the socio-economic status of the father has a strong and direct relationship with the frequency of contact with the children.

Bannasch-Soissons (1985), in analysis of data obtained from court files on an unrepresentative sample of 30 mothers with sole and 30 with shared custody, found that the mothers with shared custody[8] were significantly better educated and earned higher incomes than the mothers with sole custody.

A nationally representative survey in the United States found that fathers with sole custody were slightly better educated than mothers with sole custody:  16 percent of the fathers had graduated from college, compared to 10 percent of the mothers (Nord and Zill, 1996).  Compared to mothers with sole custody, fathers with sole custody had higher median family incomes and were less likely to have experienced poverty in the previous year, were less likely to have received social assistance, and were more likely to own their own homes.

More detailed information on social class was available in the Wisconsin court-based study.  When only the father was employed, shared custody judgements were less likely.  Shared custody was found in 14 percent of families in which both parents worked, but in only 8 percent when just the father worked (Brown et al., 1997).  As the combined parental income increased, so did the proportion of parents choosing shared custody.  For example, 7 percent of families making $30,000 a year chose shared custody compared to 22 percent of those making more than $70,000 annually (there was a tendency for equal shared custody to rise with mother's income; the pattern was similar for men's income.)  Also, as the income of the mother rose, the likelihood of the parents choosing a sole paternal custody arrangement decreased.  Sole paternal custody was very rare when the father had a low income.  Brown et al. (1997: 24) also examined the ratio of mother to father income and found there is "a dramatic decrease in father sole custody and an increase in mother sole custody as the ratio of mother's to father's income rises." Equal shared custody is most common when the parents have similar incomes—that is, when the mother's income is between 75 and 149 percent of the father's income.

Also in Wisconsin, the likelihood of parents choosing shared and sole paternal custody decreased when the family was receiving social assistance payments (Cancian and Meyer, 1998).  On the other hand, when the family owned a home, the incidence of shared and sole paternal custody increased.

The data analyzed by Pearson and Thoennes (1990) replicated these findings.  The shared custody parents were more likely to have attended graduate school and had the highest mean household incomes of the parents in the five groups studied (sole maternal, sole paternal, joint legal maternal, joint legal paternal, and shared custody arrangements).  The mothers with shared custody had higher annual earnings than did mothers in other custody arrangements.

Although these data show that middle- and upper-middle class parents are disproportionately involved in shared custody arrangements, Maccoby and Mnookin (1992: 76) emphasized that in California such arrangements were found in families with varied backgrounds.  The arrangement "was not by any means exclusively chosen by the well-educated and affluent." Irving et al. (1984) drew the same conclusion from Canadian data.  One third of the parents with shared custody made less than $20,000 combined annually, and about one quarter had a high school education or less.[9]  The authors concluded as follows:

  1. shared parenting is a viable custody option among some working and lower-status couples,
  2. the quality of the marital relationship and the process of selecting shared parenting are more important determinants of outcome success than social class, and
  3. the reason such findings have not surfaced previously is the result of a sampling artefact; that is, the samples available to researchers tend to be middle and upper class (Irving et al., 1984: 134).

One reason why shared custody arrangements often involve a disproportionate number of parents with higher socio-economic status is probably, at least in part, because these parents are more likely to have flexibility in their work schedules, which enables them to spend more time parenting.  In addition, as is discussed in section 5.3, shared custody is more costly than other arrangements.

In summary, shared custody is most common among better educated, higher earning parents and in families that include boys and only children.  Split custody is most likely to involve older children, with boys often living with their father and girls with their mother.  Older children are disproportionately part of sole paternal custody arrangements.

4.3 Personality Characteristics of the Parents

A few clinical studies have focussed on the qualities of parents that facilitate shared parenting.  Ehrenberg et al. (1996) found that parents who agreed on shared parenting were less narcissistic, more empathetic, less self-oriented and more child-oriented in their parenting attitudes.  Earlier work by Steinman et al. (1985) drew similar conclusions; that is, successful couples are empathetic and flexible, can maintain boundaries between inter-parental and parent-child interactions, and can adjust their expectations as they shift their expectations from a spousal to a co-parenting role.

4.4 Degree of Conflict and Co-operation between the Parents

Some researchers have found that shared custody is more likely to be chosen by parents who are on relatively good terms.  The data analyzed by Pearson and Thoennes (1990) included interviews before the final divorce decree.[10]  They found a relationship between parents who said their relationship was "friendly" or "strained but able to co-operate," and the type of custody arrangement they chose.  In essence, parents with "friends" or "strained but able to co-operate" relationships were more likely to choose shared custody arrangements:  67 percent shared custody; 57 percent joint legal/paternal custody; 44 percent joint legal/maternal custody; and, 37 percent sole maternal custody.

Ehrenberg (1996) found that co-operating couples chose a wider range of custody arrangements than did disagreeing couples, all of whom had selected either sole custody or joint legal custody.  This study of de facto custody arrangements involved interviews with only 16 couples in each category (co-operating and disagreeing).  The sample was obtained through newspaper ads and information letters distributed by lawyers and community agencies.  Both the sample size and sample source limits the generalizability of the conclusions.

4.5 Preferences of the Parents

Fathers are more likely to want to share custody than are mothers, but the effects of the fathers' wishes on court-ordered and actual custody arrangements are not well understood.  In the Stanford Child Custody Project, Maccoby and Mnookin(1992: 270) found that about two thirds of men expressed a preference at the beginning of the divorce process for some type of physical custody, but "few of these fathers actually sought custody through the formal legal process." The authors speculate as follows:

  1. The authors speculate that fathers may be responding to perceived social expectations that women should have custody except in exceptional circumstances, or
  2. while mothers and fathers may have similar wishes, fathers sometimes realize that their desires may not be realistic due to inexperience or difficulty in co-ordinating work and child care (Maccoby and Mnookin, 1992: 72).

In the data analyzed by Pearson and Thoennes (1990), parents who received shared custody were more receptive to this outcome than were other parents.  In cases in which parents had initially favoured some type of joint legal or joint physical custody, the final custody outcomes were that:  41 percent had joint legal maternal custody; 52 percent had joint legal paternal custody, and 58 percent had joint physical custody.  Among these groups, 50 to 70 percent of parents reported that they had reached their agreements on their own (i.e. without using mediation or going to court).

On the other hand, Pearson and Thoennes (1990: 240) also found that among parents who got joint legal or physical custody, 40 percent or more had initially wanted a sole custody arrangement.  This percentage can be contrasted with the 90 percent of sole custody parents that had wanted, and received, sole custody.  Parents who received joint legal or physical custody were more likely than parents with sole custody to feel that someone had tried to talk them into the arrangement that they ultimately received (40 versus 15 percent).  The "someone" was most often the other parent, followed by mediators and lawyers.  A small proportion of mothers with joint physical custody said that they had felt pressured financially by their ex-spouse to choose this particular arrangement.  As a whole, these data suggest that parents can reach a compromise during mediation and other negotiations at the time of the divorce.  As is discussed next, sometimes these compromises are reached only after the parents appear in court.

4.6 Factors related to the court process

In the Stanford Project, Maccoby and Mnookin(1992) found that shared custody was sometimes used to resolve custody disputes:  shared custody was awarded in about one third of disputed cases in which mothers and fathers had both sought sole custody.  In addition, the more conflict between parents, the more likely shared custody was awarded.  It should be emphasized, however, that trials accounted for only 3.7 percent of the cases in the sample; 50 percent were uncontested and the remainder were settled after assessments, mediation, and other interventions.

Another California study presents the outcomes of cases that had gone to court-ordered mediation.  When there was a custody dispute, 57 percent of the cases resulted in sole maternal custody, 27 percent in joint custody, 7 percent in sole paternal custody, and the remainder in other custodial arrangements (Maccoby, 1999: 59).  Other studies have found that the success rates of fathers who seek either sole paternal or shared custody in court proceedings range from about 40 to 60 percent.

Legal representation was associated with the incidence of court-ordered sole paternal custody in Wisconsin (Brown et al., 1997: 27, Table 10).  When counsel represented the father but not the mother, the percentage of sole maternal custody judgments was substantially lower and the percentage of sole paternal custody judgments was higher.  As the authors comment, the interpretation of these findings is unclear.  It may be that the unrepresented parent lost custody because of the lack of counsel, but it is also possible that the parent willing to relinquish custody saw no need to retain a lawyer.  An argument against the latter conclusion is that unrepresented mothers and fathers had lower incomes than did represented parents.  Poorer parents may have agreed to decisions because they lacked resources for legal fees.

Data on which issues parents dispute were also available in the Wisconsin research.  Overall, the residential placement of the children was disputed in 18 percent of the divorces, but a considerably larger share of parents with unequal shared custody had this dispute:  34 percent of the cases that resulted in unequal shared custody (in which the children spend 30 percent to less than 50 percent of the time in the secondary residence) involved placement disputes compared to only 6 percent of the cases that resulted in equal shared custody.  Disputing parents in cases involving unequal shared custody also had more issues in other areas, such as property, and child and spousal support.  These findings suggest that unequal shared custody may be the result in cases that are more contentious than others.

4.7 Child Support Obligations

Research in Australia on the first three years of the Family Law Reform Act purportedly found that "the desire to reduce child support liabilities is frequently a motivating factor for seeking and making shared residence arrangements" (Rhoades et al., 2000: 8).  This statement is not supported in the report by any evidence.[11]  The precise influence of child support on the selection of shared versus other custody arrangements is not known.  On the other hand, family lawyers and others in the field frequently cite anecdotal evidence that suggests that some parents may reject, or seek, shared custody because of its implications for child support obligations.  Melli and Brown (1994: 546) comment that a reason why shared custody has a "bad reputation with child support policy makers is the view that the interest of secondary parents in shared custody is primarily in reduced child support, not in time with their children." A recent article by Maccoby (1999: 62-3) contends that when the California divorce legislation was changed so that child support payments were linked to the amount of time spent by the children in the second residence, there was a sudden increase in the number of requests for modification of custody and child support awards.  "Fathers were claiming that their children needed to be with them more, and that they themselves wanted and needed to have more time with their children." Maccoby suggests that these variation requests were being made in order to bring the number of days "to the 129 overnights a year that would allow [fathers] to be designated as joint physical custodians and hence to pay less child support" (Maccoby, 1999: 62-3).

4.8 Summary

The effects of changes in family law legislation on actual custody arrangements are uncertain, although there is evidence that the incidence of shared custody increases and sole maternal custody decreases after statutory changes that permit or encourage joint physical custody.

Family composition affects the type of custody arrangement, with boys more likely to be in shared and sole paternal custody situations.

Parents with more education and higher incomes are disproportionately involved in shared custody arrangements.

Parents who co-operate and those who are more child-oriented are more likely to select shared over sole custody.

There is anecdotal evidence that some parents seek shared custody to reduce, or reject shared custody to increase, their child support obligations, but no empirical evidence on this issue was found.

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