A quick note about custody
People think equal custody is normal after divorce
Elsewhere, I recently published an article that included “A Brief History of Custody Laws,” which has gotten a fair bit of follow up interest. I’ve done a podcast and a couple of background interviews on this paragraph since then.
“With mothers and in the house” has been the standard since the 1970 Uniform Marriage and Divorce Act.* Attachment theory had risen in popularity in academic circles for a few decades and due to women’s assumed roles, attachment studies looked at mother and child bonding first. When the divorce boom hit and courts suddenly had to negotiate child custody arrangements on a large scale, mother-child bonding was the study data the courts had.
In those interviews the lingering assumptions from those early studies have come up.
There is a common misconception about divorce. Casual observers, and some not so casual observers, hear that most states have joint custody and equate that with shared parenting duties.
Between common cultural arguments for fathers sharing in domestic and kid raising duties and gender netural terminology like “parenting,” shared parenting seems like it would and should be normal for divorces without abuse or addiction complications.
In truth, most states have joint legal custody, which essentially means that the divorced parents share decision making responsibility for things like medical care and education, at least in theory.
Physical custody, the parent the child lives with, quickly and easily eclipses legal custody.
How this works in real life
An instance from one of my friends: dad lives in the ‘burbs with the good public school. Mom lives in the city with the less than stellar public school. The parents have joint legal custody, but mom has primary physical custody, and so when the parents disagreed about the school the children should attend, the fact that the children live with mom pretty much killed any chance of the children attending the better public school. It was too much driving.
Repeat this pattern for doctor visits, parent-teacher meetings, after school activities and in no time the parent with joint legal custody — usually the dad — is a satellite in his kids’ lives, a place where they go visit every other weekend and Wednesday or Thursday nights. In some states, the time spent with the non-resident parent is even called “visitation.”
But even that is in theory. It is becoming common in divorce for the custodial parent to fill the child’s extra-curricular schedule to limit time with the other parent.
There are both emotional and financial motivations for this tactic. But it happens far too often and some studies suggest that the inevitable process of freezing out one parent takes about two years.
For all our progress in equality, our courts still assume that children should remain with women and that a consistent physical dwelling is more important than significant and substantial time with both parents. The large and growing body of research says otherwise.
The father’s plea scene from Kramer vs. Kramer.
