Child Custody and Support

views updated


Child custody refers to the legal and physical rights and responsibilities parents have with respect to their child. Legal child custody refers to the right to make all major decisions regarding the child's health, welfare, education, and religious training. Physical custody is the right to the daily care and control of the child. The parents' marital status in relation to each other has no bearing on the determination of custody. There are different types of child custody that connote various combinations of legal and physical rights.

Sole legal custody gives one parent the right to legal custody, independent of the other parent. This parent is called the "custodial" parent and the other parent is referred to as the "noncustodial" parent. Noncustodial parents typically have visitation rights, including overnight visits and vacations.

Sole physical custody grants exclusive physical custody to one parent. Granting one parent both sole legal and physical custody is typically done only when the other parent has neglected or abused the child.

Joint legal custody grants legal custody rights to both parents equally. This means that each parent needs to inform and achieve agreement with the other parent before making major decisions for the child.

Joint physical custody grants physical custody rights to both parents, although the actual amount of time each parent spends with the child may not be equal. Parents with joint physical custody usually have a parenting plan that specifies the actual times the child will spend with each parent.

Split custody refers to "splitting" siblings between parents and may entail any combination of physical and legal custody.

If parents cannot agree on a custody arrangement, the court will impose an arrangement that is based on the "child's best interests."

Historical Overview of Custody Law

What constitutes the "child's best interests" has been marked by great ideological shifts. Until the mid-nineteenth century, fathers were unequivocally favored in custody decisions and mothers had virtually no rights. Under English law, upon which U.S. law is based, children and their mothers were viewed as a man's property or "chattel." Over the next hundred years, psychologists increasingly emphasized that mothers were biologically predisposed to be the better parent because they were more nurturing. The role of the father was viewed as an indirect one, as the provider for the mother-child relationship. As a result, the allocation of custody shifted from a complete right of fathers to a sweeping preference for mothers. This maternal preference was fortified by the "tender years doctrine," which held that children of tender years should be raised by their mothers.

In the 1970s and 1980s, significant changes occurred. The courts moved away from the presumption that mothers are always the best parents and discarded the tender years doctrine because it was based solely on gender and was therefore unconstitutional. Perhaps the most prominent change was the shift to a preference for joint custody, a shift based on the presumption that it is important for children to have a continuing relationship with both parents.

States differ in the extent to which they endorse joint custody. Some express a presumption in favor of joint custody. Under the Uniform Child Custody Jurisdiction Act, judges are required to give "full faith and credit" to custody orders issued in other states and to enforce these decrees.

Factors in Determining the Child's Best Interest

The majority (an estimated 90%) of custody cases are settled according to parents' wishes. The court will accept whatever parents agree on. This process has been criticized because it does not necessarily ensure the child's best interest. Critics point out that this procedure may be especially harmful to children if violence exists in the family; the terms of the agreement may not necessarily be fair but may be coerced and may prolong the child's exposure to violence. When parents cannot agree, the court tries to evaluate the best interests of the child, considering the following factors:

  • The parent-child relationship. It has been recommended that young children be placed with their "primary caregiver" to minimize disruption for the child. Fathers have protested that this standard favors mothers. In response, supporters of this standard have suggested that it provides an incentive for fathers to be involved in their children's upbringing from the beginning.
  • The wishes of the child. Whether to consider the wishes of the child is controversial and varies from state to state. There is a concern that children may not know what is in their best interests and may even pick the worst parent just because he or she is more permissive. A further concern is that letting the child choose will induce guilt feelings in the child later on.
  • Parents' mental and physical health. These should be relevant only if they affect child rearing. Courts may also consider the child's age and gender and any special needs the child may have.
  • Lifestyle and conduct of parents. These factors are considered only if they affect the child (e.g., parents' substance abuse, child's exposure to secondhand smoke). Courts have moved away from considering parents' sexual behavior, unless it can be shown that a parent's activities have a negative impact on the child. If neither parent is fit to have custody of the child the court may award custody to a third party (e.g., relatives or foster parents).
  • Parents' ability to provide adequately for the child. Courts take into account each parent's ability to provide such necessities as food, clothing, and medical care.
  • Continuity with the primary caregiver, the other parent, and with home, schools, and community. To promote continuity, courts may favor the parent who is more likely to allow the nonresidential parent access to the child.

Critics point out that the best interests of the child standard is so imprecise that it promotes conflict between divorcing parents and judicial bias and arbitrariness in decision making. "Judicial discretion" entitles judges to consider all, some, or none of the factors, or they may weigh them according to their own personal values and views.

The Number of Children in Custody Allocations

The exact number of children involved in custody allocations is not known. Reporting is not uniform, consistent, or comprehensive within and across states. Based on figures from the National Center for Health Statistics, at a divorce rate of 4.1 per 1,000 population in the United States in 1999 (amounting to 1.1 million divorces) and an average rate of 0.9 children per divorce decree, approximately one million children were affected by divorce. It should be noted, however, that divorce data do not provide complete estimates of the total number of children involved in custody allocations, because one out of three children in the United States is born to unmarried parents. More informative estimates stem from the reports of household living arrangements compiled by the U.S. Bureau of the Census. The majority (85%) of children who lived with a single parent in 1998 lived with their mother. About 40 percent of these children lived with mothers who had never been married.

Evaluation of Various Custody Arrangements

Because of the great diversity of individual and family characteristics it is not possible to make a generalization that one custody type is better for all children or all parents. Nevertheless, when examining research on child custody certain trends emerge.

Joint custody has the advantage of assuring the child of continuing contact with both parents. It alleviates some of the burdens of parenting as parents get time off for their own interests. The disadvantages of joint custody include less stability for children, as they must be shuttled between the parents, and problems for parents who want to move to a different area. Perhaps the most crucial consideration in deciding custody is that ongoing parental conflict is a primary predictor of children's maladjustment. Children who continue to feel "caught in the middle" when parents fight face particularly negative outcomes.

Child Support

All states require that parents support their children financially until they reach the age of majority (age eighteen) and in some instances even longer if the child has special needs. Noncustodial parents are typically required to pay child support, whereas custodial parents are presumed to fulfill their financial obligation through their daily care of the child. If parents share physical custody, child support is based on the percentage of time the child lives with each parent and each parent's income in relation to their combined incomes.

The Office of Child Support Enforcement reported that nearly ten million child support orders, involving approximately twenty million children, existed in 1999. Enforcement of child support has become a national concern, and many new enforcement mechanisms exist to compel so-called deadbeat parents to pay child support. Enforcement may include seizure of property and tax refunds, the reporting of nonpayment to credit bureaus, suspension of driver's and professional licenses, and imprisonment, fines, or both. The most widely used and effective enforcement tool is wage withholding by employers, a tool used in 60 percent of such cases.

The receipt of child support has been linked positively to greater attainment of educational goals and reductions in children's behavioral problems. The likelihood that fathers pay child support increases with the amount of contact with the child. This does not mean, however, that more contact causes higher and more stable child support payments. A more likely explanation is that greater parental commitment causes both of these occurrences—regular and higher child support payments as well as higher levels of contact.



Arditti, J. A., and T. Z. Keith. "Visitation Frequency, Child Support Payment, and the Father-Child Relationship Postdivorce." Journal of Marriage and the Family 55 (1993):699-712.

Kelly, Joan B. "Current Research on Children's Postdivorce Adjustment: No Simple Answers." Family and Conciliation Courts Review 31, no. 1 (1993):29-49.

Maccoby, Eleanor E. "The Custody of Children of Divorcing Families: Weighing the Alternatives." In Ross A. Thompson, Paul R. Amato eds., The Postdivorce Family: Children, Parenting, and Society. Thousand Oaks, CA: Sage, 1999.

Maccoby, Eleanor E., Robert H. Mnookin, Charlene E. Depner, and H. Elizabeth Peters. Dividing the Child: Social and Legal Dilemmas of Custody. Cambridge, MA: Harvard University Press, 1992.

U.S. Bureau of the Census. Current Population Reports: Marital Status and Living Arrangements, March 1998. Washington, DC: U.S. Government Printing Office, 1998.

U.S. Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement. Child Support Enforcement FY 1999 Preliminary Data Report. Washington, DC: U.S. Department of Health and Human Services, 2000.

U.S. Department of Health and Human Services, National Center for Health Statistics. First Marriage Dissolution, Divorce, and Re-marriage: United States. Washington, DC: U.S. Government Printing Office, 2001.

Veum, J. R. "The Relationship between Child Support and Visitation: Evidence from Longitudinal Data."Social Science Research 22 (1993):229-244.