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Gender bias in custody decisions
Abstract
Throughout history, gender stereotypes have played a key role in child custody dispositions. Despite current gender-neutral statutes, men's advocacy groups claim that custody decisions continue to discriminate against fathers. Women's advocacy groups and the media counter that custody decisions discriminate against mothers. Contradictory perceptions can be traced to the imprecision of the best interest standard, anecdotal cases that have been popularized in the media, a selection bias among cases that are decided in court, the absence of reliable nonpartisan research, distortions of existing research, and implicit assumptions about which parent should get custody. Gender stereotypes that favor mothers' preferential claims to custody are not supported by research, and the primary parent presumption is regarded as seriously flawed. Rather than focus on the demands of adults, custody reform should address the needs of children.
... The sex of the plaintiff was included as an independent variable (PLAINTIFF_SEX), because this variable was found to be relevant in child custody decisions [44]. Currently, in Spain, mothers obtain the majority of sole custody arrangements, obtaining child custody 58% of the time, while men obtain sole custody 4% of the time and shared custody occurs in the ...
... The best interest of the child is the only principle with significant coefficients in all regression models. This principle stands out among the legal principles that justify the decision [44], which is supported by the theory of therapeutic justice and most of the explanatory theories of court decisions. In the cases analyzed, the sex of the applicant is very important, which is in line with previous studies [44]. ...
... This principle stands out among the legal principles that justify the decision [44], which is supported by the theory of therapeutic justice and most of the explanatory theories of court decisions. In the cases analyzed, the sex of the applicant is very important, which is in line with previous studies [44]. Women win 14.3% of the trials, while men win 20.1%, and the differences are statistically significant. ...
Awarding joint or sole custody is of crucial importance for the lives of both the child and the parents. This paper first models the factors explaining a court’s decision to grant child custody and later tests the predictive capacity of the proposed model. We conducted an empirical study using data from 1,884 court rulings, identifying and labeling factual elements, legal principles, and other relevant information. We developed a neural network model that includes eight factual findings, such as the relationship between the parents and their economic resources, the child’s opinion, and the psychological report on the type of custody. We performed a temporal validation using cases later in time than those in the training sample for prediction. Our system predicted the court’s decisions with an accuracy exceeding 85%. We obtained easy-to-apply decision rules with the decision tree technique. The paper contributes by identifying the factors that best predict joint custody, which is useful for parents, lawyers, and prosecutors. Parents would do well to know these findings before venturing into a courtroom.
... In late 19 th century, legislation worldwide began to show an overwhelming dominance of the 'welfare of the child' principle directing the courts to be guided solely by the child's best interest with an emphasis towards the presumption that the mother as the most appropriate caretaker for children under the age of 7; also known as the tender-years presumption (See Derdeyn 1978). However, in late 20 th century, several jurisdictions for instance, in the US and Australia began to replace the tender-years presumptions with a gender-neutral approach to custody decisions, using various legal standards including the 'best interests' standard (See Rohrbaugh 2007;Warshak 1996). ...
... Custody decisions are frequently accused as having the element of biasness (Warshak 1996). Some interest groups also suggest that the court is indeed favoring a particular social sector in its decisions. ...
... The presumption initially introduced in early 20th century clearly favoured mothers as care givers, especially of young children (Derdeyn 1978;Wilkerson 1973). Over the years, the presumption has been argued as being inherently sexist and responsible for stereotyping the role of gender (See Warshak 1996). Recent reforms to family law in jurisdictions including in Australia, the US and the UK established a fundamental change, that is the replacement of legally and socially imposed sex-role stereotypes by insisting that the responsibilities of childcare be given to both parents. ...
The determination of physical custody and maintenance arrangement for children is among the most difficult decisions that must be made in marital dissolution process. From a legal point of view, the current determining standard of the ‘best interest of the child’ is a vague principle of law. The application of the legal principle or standard is claimed to be usually “indeterminate” and “speculative” due to the fact that the court needs to make a prediction of what will be the best custodial and maintenance arrangement for the child. This requires the court to make an evaluation based on the facts of the case and can be eventually shaped or influenced by the trial judge’s own personal values and discretions in making the decisions. The discretionary nature of the application of the principle, along with different sets of values in the assessment may lead to assumptions of adjudicator bias and discrimination and thus encourage re-litigation. Even when courts increase the use of their resources in assessing the best arrangement for the children, they remain an outside party to these relationships. This and the fact that relationships are being assessed by courts at times of abnormal stress mean that the reliability of any decision made is usually questionable. However, in most contested custody cases, the courts have to come to a final decision.
This study traces a collective of high court’s judgements in Malaysia for the past ten years concerning child custody and maintenance determination, in order to reveal what is the pattern of judgment employed by judges in Malaysia. This paper presents the findings of an exploratory case study analysis of judgments regarding child custody and maintenance decisions in divorce filed in the high court in Malaysia between the periods of 1998 and 2008. The data is obtained from selected divorce petitions reported in the online Malayan Law Journal involving minor children that were granted final judgments by the high courts throughout that ten years time in Malaysia. The objective of the case study is to first, track the determinants or factors taken into consideration by the judge in making child custody decision. Secondly, the researchers observe whether those factors taken into consideration in the custody arrangement have any implications in the determination of the maintenance of the child. Finally, the researchers then examine some of the distinguishing courts’ practices in determining physical custody and maintenance arrangement in the country. The study employs mainly an explanatory - descriptive analysis technique in analysing the data accomplished by building an explanation about the judgments and identifying probable set of causal links between the determinants or factors and maintenance arrangement used by the judges in the judgments.
... In this study, we consider an additional factor which may have eluded the attention of legal scholars (but see Fabricius, Braver, Schenck, & Diaz 2010;Warshak, 1996). Namely, could latent gender stereotypes in the judge's mind shape custody awards, even under gender-neutral custody laws? ...
... Public opinion (Braver et al., 2011) and legal scholarship (Stamps, 2002;Warshak, 1996) have attributed a maternal preference to family court. To our knowledge no past studies have sought to provide evidence for this claim in an experimental setting. ...
Using hypothetical divorce cases we examine the role of gender stereotypes in decisions about child custody. Good mothers received greater custody allocations than did good fathers across a tightly‐matched pair of vignettes in three culturally‐distinct samples: Argentina, Brazil and the United States (Experiment 1). Two follow‐up studies indicated that the warmth dimension of stereotype content partly accounted for the asymmetry in custody awards: The proportion of maternal‐primary custody was predicted by the tendency to ascribe warmth‐related traits—such as friendliness, generosity or trustworthiness—to mothers (Study 2) and associate them to female over male nouns (Study 3). We also found that endorsing shared custody mitigated the asymmetry in custody awards documented in our studies. Together, these results highlight the interplay of stereotyped attitudes and egalitarian commitments in the context of judicial decisions about child custody.
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... In this study, we consider an additional factor which may have eluded the attention of legal scholars (but see Fabricius, Braver, Schenck, & Diaz 2010;Warshak, 1996). Namely, could latent gender stereotypes in the judge's mind shape custody awards, even under gender-neutral custody laws? ...
... Public opinion (Braver et al., 2011) and legal scholarship (Stamps, 2002;Warshak, 1996) have attributed a maternal preference to family court. To our knowledge no past studies have sought to provide evidence for this claim in an experimental setting. ...
Using hypothetical divorce cases we examine the role of gender stereotypes in decisions about child custody. Good mothers received greater custody allocations than did good fathers across a tightly-matched pair of vignettes in three culturally-distinct samples: Argentina, Brazil and the United States (Study 1). Two follow-up studies indicated that the warmth dimension of stereotype content partly accounted for the asymmetry in custody awards: The proportion of maternal-primary custody was predicted by the tendency to ascribe warmth-related traits—such as friendliness, generosity or trustworthiness—to mothers (Study 2) and associate them to female over male nouns (Study 3). We also found that endorsing shared custody mitigated the asymmetry in custody awards documented in our studies. Together, these results highlight the interplay of stereotyped attitudes and egalitarian commitments in the context of judicial decisions about child custody.
... Od 1977 r. analizuje założenia i praktyki prawa rodzinnego w świetle logiki i danych naukowych. Prowadził badania w takich obszarach jak opieka naprzemienna w kontekście roli ojca i matki, ponowne małżeństwo (Warshak, 2000), relokacja, plany rodzicielskie dla małych dzieci -w kontekście wspólnej opieki porozwodowej (Warshak, 2015a), zasada zbliżenia, preferencje dzieci w sporach o opiekę (Warshak, 1996) oraz alienacja rodzicielska (Warshak, 2015b). Autora cytuje się w literaturze fachowej na całym świecie ze względu na jego osiągnięcia (Warshak, 2021). ...
Opieka naprzemienna jako jedno z rozwiązań stosowanych po rozwodzie rodziców jest szeroko komentowana i badana przez różnych specjalistów. Od kilku dekad trwają dyskusje, czy to dobre rozwiązanie dla dzieci. Badacze biorą pod uwagę, że mieszkają one de facto w dwóch domach, co może być dla nich niekomfortowe i narażać je na reperkusje wynikające z konfliktu między rodzicami. Zauważalna jest jednak zmiana akcentów w dyskusji na ten temat. Naukowcy zadają sobie pytanie, czy narażanie dzieci na konflikt oraz pewien dyskomfort wynikający ze zmiany miejsca nie jest mniej istotny, a ważna staje się przede wszystkim relacja dziecka z obojgiem rodziców. Cel artykułu stanowi przybliżenie zagadnienia pieczy naprzemiennej w kontekście owej dyskusji. Opierając się na badaniach i analizach różnych naukowców, można wyciągnąć wnioski, że w sytuacji kontrolowanego konfliktu między rodzicami opieka naprzemienna stanowi dobre rozwiązanie dla dzieci. Pozwala na kontakt zarówno z matką, jak i z ojcem, a obojgu rodzicom zapewnia aktywny udział w wychowaniu dzieci.
... One thing that differs in the experience of these parents from those who are cisgender, however, is the experience of discrimination in courts, custody agreements, and even adoption processes that is based on the gender identity of the parent (Pyne et al., 2015;Stozer et al., 2014), although the majority of transgender and GNC individuals report having generally positive relationships with their children, even after their coming out process (Stozer et al., 2014). Whereas many cisgender fathers may experience discrimination in these same processes (Warshak, 1996), transgender and GNC parents often have an additional level of transphobic discrimination to contend with in these situations. Given the similarities of needs for transgender and GNC parents with those of the general population of parents, as well as the added discrimination, there is a clear need to move beyond the idea of fatherhood being solely based on residential, legal, or biological markers (Bellamy, 2009). ...
Little scholarship exists on parenting in the transgender and gender nonconforming (GNC) community, even though a sizable portion of the community is either currently parenting or interested in becoming a parent. This dearth of literature is particularly noticeable among those individuals assigned female at birth (AFAB) who identify as transmasculine. This study examined differences in likelihood of being a transgender or GNC parent across a number of sociocultural factors, as well as some parenting experiences specifically among AFAB transmasculine parents, using data from the National Transgender Discrimination Survey. Characteristics such as being assigned male at birth, identifying as African American/black or bi/multiracial, and having a physical disability were correlated with increased likelihood of being a parent. A curvilinear relationship between age and the likelihood of being a parent was also found. As the research on parenting and fatherhood grows, this population of transgender and GNC individuals clearly needs a dedicated space in the emerging literature to ensure that their voices and experiences are heard.
... In de voorbije decennia zijn de opvattingen omtrent ouderschap voor en na echtscheiding grondig gewijzigd (Warshak, 1996). Tot half‐ weg de jaren negentig werd meestal de voor‐ keur gegeven om na echtscheiding het volle‐ dig hoederecht toe te kennen aan de moeder, de vader kreeg enkel bezoekrecht. ...
Social life is fostered by having a partner and children that create interactions and generate social networks. For divorced parents, the question is whether these positive relationships remain. It is important to consider custody arrangements in this case. The research question is how custody arrangements affect divorced parents’ possibilities to participate in social activities and to maintain their social contacts. Focus is placed on the recent post-divorce parenting model of joint physical custody, taking Belgium as a pioneer case study. Data from the Divorce in Flanders survey of 2009-2010 are used (N = 1,506 divorced parents). Results show that joint physical custody helps divorced parents to stay socially integrated. They engage in more social activities and maintain their social networks.
Het is gekend dat het hebben van een partner en kinderen een effect heeft op iemands sociale leven. Maar geldt dat ook voor gescheidenen? Zij hebben immers een ex-partner en eventueel een nieuwe partner, en ze hebben ook een specifieke verblijfsregeling die in acht genomen kan worden.
De focus ligt in dit artikel op de gedeelde verblijfsregeling die recent door de Belgische wetgever naar voren werd geschoven. Data van het Scheiding in Vlaanderen-onderzoek wordt gebruikt, waarin 1.506 gescheiden ouders werden geïnterviewd in 2009 en 2010. De resultaten tonen aan dat vooral gescheiden ouders binnen een gedeelde verblijfsregeling hun sociaal leven op peil houden en sociaal geïntegreerd blijven. Deze gescheiden co-ouders participeren meer in sociale activiteiten en onderhouden beter hun sociale contacten.
... Research on family structure has clearly documented the expanding range and complexity of children's living arrangements following divorce (Villeneuve-Gokalp, 2000). These developments have occurred within a context of altered beliefs about parenting and custody in most Western countries (Felner, Terre, Farber, Primavera, & Bishop, 1985;Fox & Kelly, 1995;Frankel, 1985;Rothberg, 1983;Van Krieken, 2005;Warshak, 1996;Wolchik, Braver, & Sandler, 1985). ...
In this article, we present a new method for measuring residential arrange- ments of children following parental divorce. We discuss the limitations of conventional methods for measuring postdivorce residential situations of children, but our principal objective is to present a promising alternative, the residential calendar. We evaluate its utility with data coming from the Leuven Adolescents and Families project, collected from a sample of 878 Flemish adolescents, who have experienced a parental breakup. Several substantive and methodological arguments and supporting analyses illustrate the poten- tial value of the residential calendar for collecting policy-relevant data on the consequences of divorce.
... In fact, among the few adjudicated cases, women and men win about equally (Maccoby & Mnookin, 1992;Pearson & Ring, 1982-83), seemingly disproving that courts are too mother-friendly. However, the role that selection bias plays in this statistic has been raised by Warshak (1996): "If the perception exists of an uneven playing field favoring mothers, fathers with weaker cases are apt to drop their bid for custody early in the legal Consequences on Parents 8 process" (p. 401). ...
... These findings indicate that even in situations where MHPs know they are being scrutinized, they can show effects of personal bias. While other literature also makes some references to issues of evaluator bias on a personal level (Sagi & Dvir, 1993;Warshak, 1996), bias in custody evaluation is an area that has received little attention outside of the issue of gender politics. Recently this has begun to change, with a focus on acknowledging the existence of bias and the effects of confirmatory bias on custody evaluations (Martindale, 2005a;2005b). ...
Researchers have explored the existence and effects of bias on decision making for decades. Studies indicate that mental health professionals are not immune from unintentional bias in judgments, including those in forensic situations. Custody evaluators should be aware of the pitfalls that exist in clinical decision-making as well as strategies to address them. This article connects existing insights from therapeutic and forensic literature to the field of custody evaluations. An overview of clinical bias in custody evaluation is offered to familiarize practitioners with the range of possible problems. Examples, such as biases inherent in the scientific process and the clinical relationship, are followed with specific recommendations regarding how to address issues of clinical bias during evaluation. Insights are offered for judges and attorneys to improve the quality of reports they receive.
... This is in contrast to most research findings up to date, which have shown that gay fathers and lesbian mothers still are regarded with bias – a circumstance with consequences for results of custody trials (Crawford & Solliday, 1996; Frazer, Fish, & Mackenzie, 1995; Muir, 1999). Furthermore, despite the fact that women still, in general, are favoured in custody decisions (Worshak, 1996), the assumption that mothers would be preferred to fathers as custodians was also not verified in the present study. Lesbian and gay litigants were also not less likely to be awarded custody of same-sex children. ...
We examined the effects of litigant sexual orientation, litigant gender, child gender and participant level of homophobia on custody decisions. One hundred and fifty-four Swedish law students in their final years of education responded to vignettes describing the litigants and the general circumstances of a child custody case. Vignettes varied regarding litigant sexual orientation, litigant gender and child gender, and were followed by a question concerning which of the litigants ought to be awarded custody, along with scales aimed at measuring the perceived parenting ability of the litigants. As a separate stage, participants responded to a scale measuring homophobia. The results revealed that there was no influence of litigant sexual orientation, child gender or participant level of homophobia on custody decisions, and that the mean level of homophobia of the participants was low, although it was shown that male participants were more homophobic than female participants. The generalisability of the findings to Swedish practitioners of law was discussed. Among other things the participants were of a different generation than the majority of law professionals in the field today. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
... In fact, among the few adjudicated cases, women and men win about equally (Maccoby & Mnookin, 1992;Pearson & Ring, 1982-83), seemingly disproving that courts are too mother-friendly. However, the role that selection bias plays in this statistic has been raised by Warshak (1996): "If the perception exists of an uneven playing field favoring mothers, fathers with weaker cases are apt to drop their bid for custody early in the legal Consequences on Parents 8 process" (p. 401). ...
This comprehensive handbook presents the most up-to-date scholarship on the causes and predictors, processes, consequences, and policy implications of divorce and relationship dissolution. Featuring contributions from leading scholars from multiple disciplines, this handbook reviews relationship termination, including variations depending on such factors as legal status, race/ethnicity, and sexual orientation. Chapters distinguish what is known about divorce from what is known about other types of relationship dissolution (dating, cohabiting, etc.). The handbook focuses on the often-neglected processes involved as the relationship unfolds, such as infidelity, hurt, disaffection, and remarriage. It also covers the legal and policy aspects of divorce including mediation, educational programs for parents experiencing divorce, and the demographics and historical aspects of divorce. Diversity is addressed through the inclusion of chapters on gay and lesbian, Hispanic, and African American relationships, and the integration of diversity issues wherever possible. Commentaries from Alan Booth, Robert Weiss, and Ellen Berscheid provide an overview of the field and recommendations for future research and policy directions.
The Handbook of Divorce and Relationship Dissolution is intended for researchers, practitioners, counselors, clinicians, and advanced students in psychology, sociology, family studies, communication, nursing, and other disciplines. The book will also serve as a text in advanced courses on divorce, marriage and the family, and close relationships. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
... Recently, there have been more focused examinations of potential evaluator biases in child custody evaluations, such as the impact of confirmatory bias (Martindale, 2005) or evaluator distortions stemming from hindsight bias, primacy and recency effects, and familiarity bias (Robb, 2006). Biases which might arise in the CCE based upon race, religion, gay and lesbian parents (Gould, 2006), or the gender of the evaluator or parent (Bradshaw and Hinds, 1997;Warshak, 1996) have been addressed, and Stahl (2006) has recently addressed the issue of evaluator bias in relocation cases. The American Psychological Association CCE guidelines (APA, 1994) require that psychologists not only maintain awareness of personal and societal biases, but must also strive to overcome them or withdraw from the evaluation (see guideline 6 of APA, 1994). ...
Concerns about bias which may arise in the child custody evaluation process have recently attracted critical attention. The types of biases addressed are those that primarily stem from cognitive psychol-ogy, as well as social and cultural sources of bias. Rarely discussed, however, is bias which can stem from evaluator countertransference, which if unrecognized can potentially lead to biased and non-objec-tive recommendations. While one must strive to be objective and im-partial, child custody evaluators are frequently working with highly charged emotional issues which may interact with their own personal issues or past experiences. This article examines the types of counter-transference phenomenon which may arise in the child custody evalua-tion, and presents tips for identifying and managing such reactions. doi:10.1300/J190v04n03_04 [Article copies available for a fee from The Haworth Document Delivery Service: 1-800-HAWORTH. E-mail address: <docdelivery@haworthpress.com> Website: <http://www.HaworthPress.com> © 2007 by The Haworth Press. All rights reserved.] Daniel B. Pickar, PhD, ABPP, is a Diplomate in Clinical Psychology, American Board of Professional Psychology. He has maintained a private practice in clinical and forensic psychology for the last 18 years, and has completed over 300 child custody evaluations. In addition, he has been a child psychologist at Kaiser Permanente Medi-cal Center in Santa Rosa, California, for the last 20 years, where he also served as Divi-sion Chief of Child and Family Psychiatric Services and Director of Psychology Training. He has also served as Clinical Consultant to Civil Custody Unit of the Sonoma County Department of Probation. Address correspondence to: Daniel B.
... Historically, the law made assumptions that it was the sex of the parent that was significant in a child-custody decision. The focus was on the perceived ability of a father to protect and provide for the children or a mother's suitability to meet the needs of young children (Warshak, 1996 ). Fathers' responsibilities included leisure activities, discipline , moral guidance, and encouragement with studies. ...
This study investigated the content of lawyers’ affidavit material presented to the court in a small sample of custody and visitation cases. The aim was to identify factors lawyers perceived as significant to the judicial decision-making process. Results revealed that solicitors focussed primarily on the interparental conflict. Descriptions of children, feelings, behaviours, and attachments formed a minor part of their argument. A more detailed analysis revealed that the gender of the solicitor defined the nature, length, and emotional content of the argument to the court. This was especially true in cases involving domestic violence. Implications for the education of lawyers were considered.
Professional opinions have shifted regarding the value of young children receiving overnight care from each parent. Contemporary proposals of blanket restrictions are contradictory and rest on faulty interpretations of a narrow bandwidth of scholarship. No coherent theory or research confirms speculations that fathers’ overnight care poses greater risks to their young children than daytime care, or that overnights are contraindicated if opposed by the mother. Theory, research, and practical considerations support the benefits of overnights. It violates logic and common sense to welcome father–child contact around bedtime and morning rituals when parents live together, but eschew overnight contact when parents separate.
This edition of Introduction to Forensic Psychology has been completely restructured to map to how courses on forensic psychology are taught, and features more figures, tables, and text boxes, textbook pedagogy. Uniquely. this book offers equal representation of criminal behavior, the court systems, and law enforcement/prisons. It also has equal representation of criminal and civic forensics and of issues pertaining to adults and children. new coverage of emerging issues in forensic psychology expanded case illustrations and vignettes, practice and ethics updates, and international trends new "key issue" overviews, boldface terms and concepts, and chapter reviews expanded coverage of corrections for juveniles.
Whether assessing general family functioning or specific areas of conflict, professionals ordering, conducting, or reviewing child custody evaluations require sound knowledge of three interrelated fields: up-todate legal issues, psychological findings, and forensic procedures. A Comprehensive Guide to Child Custody Evaluations covers these three essential areas to walk readers through the evaluation process clearly and concisely. This unique interdisciplinary book emphasizes professional ethics, children's psychological well-being, and clear communication among all parties as keys to resolving disputes with efficiency and thoroughness, and minimizing the chances of children and their families getting lost in red tape. Among the Guide's features: Legal standards for custody evaluations and recommendations. Procedures for conducting custody evaluations, with the latest data on psychological testing, interviewing children, and home observations. Guidelines for writing: evaluation reports, orders for evaluatio s, parenting plans. Legal and ethical standards for critiquing evaluation reports. Current legal and research-based information on special issues, including alternative family arrangements, medical problems, child sexual abuse, estrangement, and parental abduction. Reference and resource sections provide additional support. The Guide's interdisciplinary approach will be of invaluable aid to forensic mental health professionals in conducting evaluations and communicating results, family and probate judges in ordering and assessing custody evaluations, and family attorneys in deciding how to approach various aspects of the family situation, whether to request a custody evaluation, and how to proceed after the custody evaluation is done. © 2008 Springer Science+Business Media, LLC. All rights reserved.
The best-interest-of-the-child standard for child custody policy and decisions has benefits and hazards, the latter related to the exercise of judicial discretion in custody disputes. This article examines alternatives to the status quo, including the primary parent presumption, the approximation rule, shared parenting, an exact even split of custodial time, sole custody for couples labeled as in high conflict or those with young children, the friendly parent presumption, and decisions that defer to children’s stated preferences. Each alternative promises simpler paths to securing children’s welfare, but some have more support than others in the social science literature.
Two central issues addressed in this article are the extent to which young children’s time should be spent predominantly in the care of the same parent or divided more evenly between both parents, and whether children under the age of 4 should sleep in the same home every night or spend overnights in both parents’ homes. A broad consensus of accomplished researchers and practitioners agree that, in normal circumstances, the evidence supports shared residential arrangements for children under 4 years of age whose parents live apart from each other. Because of the well-documented vulnerability of father–child relationships among never-married and divorced parents, the studies that identify overnights as a protective factor associated with increased father commitment to child rearing and reduced incidence of father drop-out, and the absence of studies that demonstrate any net risk of overnights, policymakers and decision makers should recognize that depriving young children of overnights with their fathers could compromise the quality of developing father-child relationships. Sufficient evidence does not exist to support postponing the introduction of regular and frequent involvement, including overnights, of both parents with their babies and toddlers. The theoretical and practical considerations favoring overnights for most young children are more compelling than concerns that overnights might jeopardize children’s development. (PsycINFO Database Record (c) 2014 APA, all rights reserved)
Children's perspectives can enlighten decisions regarding custody and parenting plans, but different opinions exist about how best to involve children in the decision-making process. This article discusses why most procedures for soliciting children's preferences do not reliably elicit information on their best interests and do not give children a meaningful voice in decision making. Instead, these procedures provide children with forums in which to takes sides in their parents' disputes. In addition to hearing an individual child's voice, decision makers can use the collective voice of children, as revealed in research on such topics as joint custody, overnight stays, and relocation to help understand what children might say about these issues with the hindsight of maturity and in the absence of parental pressure, loyalty conflicts, inhibitions, and limitations in perspective and articulation.
The purpose of this article is to provide a protocol within which to frame a critique or critical review of a colleague's custody evaluation. While we think that the structure and logic of the following protocol may be applied to other forensic evaluations, our focus here is on the specific forensic specialty area of child custody and parenting access evaluations (CCEs).
This article is based on the clinical observation of 11 cases of children living in shared equal residence. This kind of custody has been here set up with the agreement of both parents and out of conflictive relationships. Some children show signs of psychical suffering close to a post-traumatic syndrome while some others show a more pernicious symptomatic picture that takes the form of a “perfect child syndrome”. In between these two syndromes, some intermediary clinical forms can be observed including psychosomatic disorders, major anxiety, phobias, aggressive attitude, depressive syndromes, denial of separation, lasting regressions, identification difficulties, emotional detachment, splitting, loneliness feeling, quasi constant negation of oneself and, in particular, great insecurity. One of the put forward hypotheses would be that the facing of the repetitive material and emotional losses caused by the shared equal residence, overflows the child capacities of emotional regulation, leading therefore to the creation of symptoms.
This study examines the custody recommendations of a sample of Israeli social workers who advise the courts. It looks at their recommendations in relation to the child's wishes and the workers' assessments of the children's expected quality of life with each of the parents. The findings show that the social workers based their recommendations mainly on the child's preference where that was clear, and, where it was not, on the child's expected quality of life with the two parents. With this, maternal custody remained the default recommendation and paternal custody was recommended only when the quality of life the father was expected to enable was significantly higher than that the mother was expected to enable.
In a pair of studies, we examine lay people’s judgments about how hypothetical cases involving child custody after divorce should be resolved. The respondents were citizens called to jury service in Pima County, AZ. Study 1 found that both male and female respondents, if they were the judge, would most commonly award equally shared custody arrangements, as advocated by most fathers’ groups. However, if the pre-divorce child care had been divided disproportionately between the parents, this preference shifted, slightly but significantly, toward giving more time to the parent who had provided most of that care, consistent with the Approximation Rule advocated by the American Law Institute. Moreover, respondents judged that the arrangements prevailing in today’s court and legal environment would award equal custody considerably less often, and would thereby provide much less parenting time to fathers, than the respondents themselves would award. Study 2 found that respondents maintained their strong preference for equally shared custody even when there are very high levels of parental conflict for which the parents were equally to blame, but awarded substantially less time to the culpable parent when only one was the primary instigator of the parental conflict. The striking degree to which the public favors equal custody combined with their view that the current court system under-awards parenting time to fathers could account for past findings that the system is seriously slanted toward mothers, and suggests that family law may have a public relations problem.
The American Law Institute proposes that in contested physical custody cases the court should allocate to each parent a proportion of the child's time that approximates the proportion of time each has spent performing caretaking functions in the past. Examined through the lens of child development research, the approximation rule is unlikely to improve on the best interests standard. It is difficult to apply; is perceived as gender-biased; creates a new focus for disputing parents; renders a poor estimate of parents’ contributions to their child's best interests; overlooks parents’ intangible, yet significant, contributions to their child's well-being; and miscalculates the essence of how a child experiences the family. A preferable alternative is a better defined, contemporary best interests standard that accommodates new knowledge and reforms that encourage nonadversarial, individualized resolutions of custody disputes.
A survey was administered at a state bar convention to 72 family law attorneys who reported on their experiences in representing a total of 3,860 clients. Results showed that lawyers believed that (a) most losers in relocation cases do not or would not ultimately move; (b) the Family Court Masters system seems to be helpful to families; (c) lawyers' actions often raise the emotional level of the dispute; and (d) the divorce and custody system is biased against fathers.
Adults (151 female, 130 male; 17.4% African American/Black, 48% Caucasian, 22.8% Latino/Hispanic, 11.7% other) assigned postdivorce parental care and custody for four combinations of traditional/nontraditional mothers and fathers described in vignettes of divorcing parents. Parental gender characteristics influenced the assignment of parental care and child custody to divorcing mothers and fathers described in the scenarios and interacted with child gender. Across scenarios, female participants assigned more parental care and custody to mothers than did male participants. When feminine qualities were paired with masculine qualities, greater custody was assigned to the parent described with feminine characteristics (whether a father or mother) than when that parent was described with masculine characteristics. The role of feminine gender characteristics for child custody and care was discussed with regard to maternal primacy and possible changes for father involvement in the aftermath of divorce.
Fathers figure prominently in a child's postdivorce life whether they are involved or disinterested, but concerns about inadequate child support, noncustodial fathers who fail to visit, and the economic plight of single mothers have together raised policy questions about how better to enfranchise fathers with the rights and responsibilities of parenting and ensure them a continuing and meaningful role in the lives of their offspring. This article focuses on obstacles and avenues to ensuring a meaningful postdivorce parenting role for fathers by examining the effects on them of custody standards, visitation policies, child support guidelines and their enforcement, and the other economic arrangements surrounding contemporary divorce. In the end, public policies that foster the child's unconflicted relationships with each parent in the context of reliable and adequate economic support will require new ways of structuring relations between ex-spouses in the interests of offspring (for example, new approaches to custody and visitation), nonadversarial modes of assisted dispute resolution to accommodate postdivorce changes in family life, child support policies which guarantee that a child's economic needs will be met when parents are unable to provide adequately (and that assist parents who are unable to provide), and that recognize and ensure both the relational and the economic contributions of each parent to a child's well-being.
This article reviews briefly the history of child custody decision making and describes current custodial arrangements in the United States. It examines both the manner in which parents and courts make decisions regarding custody and access, and the changes in visiting patterns in recent decades. The author discusses the impact of reforms in the law and the implementation of newer dispute resolution and educational interventions, and then makes recommendations for policy and practice.
This Article examines the changing relationship between legal and non-legal decisionmakers in custody cases. Although custody determinations historically were viewed as legal events accomplished by legal decisionmakers through legal procedures, the recent trend toward joint custody and mandatory mediation represents an appropriation by the helping professions of authority in this area. Professor Fineman argues that the shared-parenting ideal established by these professional groups facilitated substantive change in long-standing custody policy. These changes have been obscured by the helping professions' focus on the decisionmaking process. Professor Fineman analyzes the helping professions' presentation of the contrasting therapeutic and legal models and argues that the success of the helping professions in displacing legal divorce in custody matters resulted from their criticism of existing practices, procedures, and decisionmakers and from their success in labeling divorce as an emotional crisis. Professor Fineman suggests a return to a legal model in custody cases and proposes the "primary parent" rule as the way to implement this goal.
The present study compares the experiences and adjustment of children in joint and maternal custody arrangements. The subjects were 133 children who had experienced parental separation within the past 30 months and ranged in age from 8 to 15 years. Children were interviewed about their recent divorce-related experiences and completed questionnaires that assessed anxiety, depression, self-esteem, and hostility. Parents also completed a questionnaire about their children's behavior problems. Children in joint custody arrangements reported a significantly greater number of positive experiences than children in maternal custody (p <.05). No differences in child symptomatology occurred across the custody arrangements; however, children in joint custody reported higher levels of self-esteem (p <. 05) and had more weekly contact with the parent with whom they did not primarily reside than did children in maternal custody (p <. 05). The importance of research on the effects of various custody arrangements for the development of sound social policy is discussed.
A sample of 92 children of divorce, ranging in age from 9–28 years was obtained from the records of the Cape Town Supreme Court, South Africa. The children were interviewed with a view to eliciting feelings regarding parents staying together in an unhappy marriage “for the sake of the children”;, access arrangements, the extent to which they experienced the divorce as traumatic, together with other aspects of the divorce experience. Viewpoints expressed by the children suggested that they perceived an ongoing unhappy marriage as more conflict‐arousing for themselves than the divorce itself. It was strongly revealed that freedom of access to non‐custodial parent was highly valued by the children.
Modem child custody law faces an important challenge in responding to pluralistic and evolving gender and parenting roles. Professor Scott finds rules favoring maternal custody, joint custody, and the best interests of the child wanting; she argues that the optimal response to the current pluralism in family structure is a rule that seeks to replicate past parental roles. This "approximation" standard promotes continuity and stability for children. It encourages cooperative rather than conflictual resolution of custody, thereby ameliorating the destructive effects of bargaining at divorce. It also recognizes and reinforces role change in individual families, encouraging both parents to invest in parenting before and after divorce. Although an approximation approach might disappoint those who believe that custody law can serve as a transformational tool of social reform, Professor Scott argues that mandating conformity to prescribed family roles is costly and ultimately ineffective. Her proposed framework allows families to function according to their individual values and preferences while subtly encouraging the restructuring of parental roles in the direction of desirable reform.
In custody decisions there is a traditional presumption that children's best interests are served by living with their mother. The past decade has seen a growing interest in father-custody which is reflected in a large body of empirical research that has followed one of three strategies. Results indicate that a preference for maternal custody is unwarranted. Instead the impact of custody disposition is mediated by several factors including the child's sex, coparenting relationship, parenting skills, the noncustodial parent-child relationship, and the use of support systems. Suggestions for future research are provided and the implications of current results for custody decisions are discussed.
The father's role in infancy is currently undergoing a major re-evaluation. Evidence from cross-cultural, historical, comparative and biological sources indicates that the father is capable of playing an active role in infant development. A series of observational studies of father-infant interaction in the newborn period were described. The results indicated that fathers are interested and involved with newborn infants and as nurturant as mothers in their interactions with their infants. While mothers spent more time than fathers in feeding and caretaking activities, fathers and mothers did not differ in their caretaking competence as indexed by their sensitivity to infant cues in the feeding situation. The implications of these findings for the father's role in infancy were discussed and the desirability of introducing greater institutional support systems for fathers was noted.
Longitudinal data from the National Survey of Children were examined to investigate whether effects of parental divorce are evident in young adulthood. Among 18–22 yr olds from disrupted families, 65% had poor relationships with their fathers and 30% with their mothers, 25% had dropped out of high school, and 40% had received psychological help. Even after controlling for demographic and socioeconomic differences, youths from disrupted families were twice as likely to exhibit these problems as youths from nondisrupted families. A significant effect of divorce on mother–child relationships was evident in adulthood, whereas none was found in adolescence. Youths experiencing disruption before 6 yrs of age showed poorer relationships with their fathers than those experiencing disruption later in childhood. Overall, remarriage did not have a protective effect, but there were indications of amelioration among those who experienced early disruption. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
Study 1 was a 3-yr longitudinal study of 1,124 divorcing families that focused on custodial arrangements and interparental communication and conflict. Study 2 was a follow-up study of the adolescent children from the Study 1 families that focused on adolescents' relationships with resident and nonresident parents, on processes in each parental household, and on adolescents' adjustment in different custodial arrangements. Parental roles differed substantially after divorce, with mothers carrying the primary responsibility for residential care and economic support. Most fathers remained substantially involved in their children's lives over the duration of the studies. Adolescents were doing at least as well in joint physical custody as when living primarily with 1 parent. The possible costs and benefits of maintaining contact with nonresident parents are discussed. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
Six hypotheses to explain how divorce may affect the trajectory of child development were tested using standardized measures and sociodemographic data. Correlational and multiple regression analyses revealed that the parent adjustment hypothesis received the strongest support. Boys appeared sensitive to events and behavior in their mothers' lives, while girls seemed attuned to mothers' internal states.
This survey of 40 middle-class divorced fathers, focussing on fathers' perceptions of their relationship with their children, suggests that those with joint custody are more likely than those with visitation rights to continue to have a high degree of involvement in and influence on their children's growth and development. It is argued that children of divorce, as do children of intact families, need loving relationships with two parents, and that joint custody arrangements should be encouraged.
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Childcustody 1itigation:A guide forparentsandmental healthprofessionals
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Maternal feelings: Myth, taboo, and child custody
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The tender years presumption in child custody disputes
- Roth
Child custody awards: Legal standards and empirical patterns for child custody, support and visitation after divorce
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Judicial decision-making in contested custody cases
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The primary caretaker parent rule: Child custody and the dynamics of greed
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Why mothers are losing: A brief analysis of criteria used in child custody determinations
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Gender bias in family courts
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