Postdivorce Father Involvement: Innovations in Child Custody Reform[1]

Abstract

The evolving cultural "script" associated with fatherhood has contributed to many fathers experiencing a discrepancy between societal expectations and social/structural barriers. This ambiguity may be particularly poignant for divorced fathers. In response, various custody-related legislation have been proposed which is intended to meet the needs of postdivorce fathers and families. Two initiatives currently being considered in the Michigan legislature serve as a microcosm for the ongoing custody debates in the U.S. These proposals emphasize issues of parental rights and parental responsibilities. This paper examines issues surrounding these proposals, as well as presents a third alternative that more comprehensively affirms the desired social behavior of involved fathering.

Key Words: postdivorce father involvement, child custody, joint physical custody, parenting plans

1. The author would like to thank W. Michael Fleming and Daniel R. Meyer for their insightful contributions and comments on an earlier draft of this paper, and Nadine F. Marks for her valuable support.

2. James D. Lambert is a doctoral candidate in the Department of Child and Family Studies, University of Wisconsin-Madison, 1430 Linden Drive, Madison, Wisconsin, 53706.

 
The social and cultural "script" for fathers today is very different from even a few years ago. Fathers, whether in divorced or intact families, are expected to be more involved in the lives of their children. However, fathers may also experience a contradiction between the perception that they should be more involved and the existence of social and structural barriers that maintain their marginalization as fathers (Daly, 1994). The ambiguity surrounding what it means to be a divorced father is particularly poignant (Arendell, 1995; Kruk, 1991, 1992). At the same time as fathers are being called upon to become more active in raising their children, current child custody trends ensure that many children are not sharing a residence with their fathers. Researchers suggest that not only the legal process of obtaining a divorce has played a central role in influencing the relationship between nonresidential parents and their children but the custodial outcome has as well (Arditti, 1992a; Dudley, 1991).

The current discussion in Michigan surrounding child custody initiatives serves as a microcosm for the growing custody-related debates ongoing throughout the United States. This debate is fueled in part by the perceived inadequacy of current custody statutes to reflect the changing cultural norms and expectations for contemporary fathers and families. It has been argued that child custody laws are reactive in nature, politically charged, and rarely reflect the very real needs of the families they are designed to serve (Tompkins, 1995). Specifically, current custody laws, while evolving to incorporate theoretically gender-neutral terminology and principles like joint custody, "best interests of the child" standards, and "primary caretaker" standards, essentially have resulted in custody arrangements where the mother remains the primary custodial parent (Walters & Chapman, 1991; Weitzman, 1985). Until recently it seemed that this enduring custodial standard enjoyed almost universal acceptance. However, as noncustodial/nonresidential parents—usually fathers—become increasingly desirous to remain involved in the lives of their children, and as society increasingly expects them to be involved, the voices calling for a new evolution in child custody law have grown louder (Hetherington & Stanley-Hagan, 1997). With the continued emphasis in child custody determinations on sole maternal physical custody and limited father-child interaction, postdivorce fathering may have more in common with traditional conceptualizations of fathering than with contemporary ones. While some might argue that there is no gender bias in the legal determination of custody (Chesler, 1991), divorced fathers clearly perceive an adversarial legal system which promotes conflict and constructs barriers to maintaining strong relationships with their children (Arditti & Allen, 1993; Arendell, 1995; Dudley, 1991; Hetherington & Stanley-Hagan, 1997; Kruk, 1992).

There are currently two separate legislative proposals in Michigan which are intended to be responsive to the real needs of postdivorce families. The first proposed bill calls for legislation which would amend current custody statutes to create a presumption favoring a joint custodial arrangement. This perspective emphasizes issues of fairness and of protecting the rights of both parents to maintain continuing contact with the child (Folberg, 1991; Hillary, 1993; Maccoby & Mnookin, 1992). The second legislative proposal advocates the implementation of initiatives such as parenting plans and custody mediation which are designed to minimize judicial intervention in custody determinations. This viewpoint attempts to shift the emphasis surrounding child custody issues from maintaining parental rights to fulfilling parental responsibilities (Buehler & Gerard, 1995).

The purpose of this paper is to examine issues surrounding these recent child custody innovations, as well as to present an additional proposal for aiding contemporary families in reorganizing their roles and responsibilities. In order to clarify the potential ramifications of each of these proposed pieces of legislation, a brief background history summarizing how the current debate arrived at this point is provided.

A Brief History

Child custody laws have undergone a variety of changes throughout history. In light of the current debate, it is interesting to note that until the nineteenth century fathers (or their families) were almost always given custody of children (Mason, 1994; Roth, 1977). This patriarchal preference was rooted in English common law, which granted fathers the right and responsibility to support, protect, and educate their children (Grossberg, 1985; Roth, 1977). However, during the nineteenth century the "tender years" doctrine, which suggests that young children are best kept with their mothers, emerged as the prevalent view guiding custody decisions. The only way in which a father could obtain custody was to prove that the mother was unfit to raise the child (Emery, 1994). Researchers and historians generally attribute this philosophical shift to the specialization of women's and men's roles as a result of the industrial revolution—as well as to the development of theories regarding child development and maternal attachment, in which the "maternal instinct" was discovered or created (Bowlby, 1982; Grossberg, 1985). Arguing that maternal preference was neither a coincidence nor inevitable, Grossberg (1985) suggested that choosing the mother as custodian "found its origins in the cult of domesticity that pervaded nineteenth-century American culture" (p. 209).

By the 1960s, the presumption of sole maternal custody based on the tender years doctrine was firmly established through case law in virtually every state. However, over the ensuing 15 years explicit custody presumption in favor of mothers began to weaken (Roth, 1977). Questions regarding women's and men's parenting and family roles, as well as rising divorce rates, led some to argue for a standard that did not assume that women were predisposed to be caretakers (Coltrane & Hickman, 1992; Kelly, 1994). Since 1970, all 50 states have essentially rejected the tender years doctrine and have enacted case law or statutes in favor of the "best interests of the child" standard (Buehler & Gerard, 1995; Kelly, 1994). It is important to note, however, that while the best interests standard was intended to promote gender neutrality, in many cases it has been seen as just another expression of the assumption of maternal preference (Weitzman, 1985). Through the 1970s and early 1980s, over 90% of divorce cases resulted in the mother being awarded custody of the children (Walters & Chapman, 1991; Weitzman, 1985). This trend began to slow somewhat in the 1980s with the emergence of the belief that children can benefit from maintaining postdivorce relationships with both parents (Coltrane & Hickman, 1992; Thompson, 1994). Some have argued that children show better postdivorce adjustment when both parents are actively involved in childrearing (Arditti, 1992a; Czapanskiy, 1991). This belief, coupled with fathers rights groups utilizing a sex-role equality argument, has led to a push for joint custody awards.

Proposal One: Presumption of Shared Parenting

Joint physical custody as a presumption requires that this alternative be given first consideration and assumes that this custody arrangement is in the best interests of the child. A parent requesting sole residential custody would need to prove otherwise. Eight states currently have legislation that includes a stated presumption for joint custody or shared parenting, while several other states presume this arrangement only when the parents agree (Buehler & Gerard, 1995). In Michigan, joint physical custody or shared parenting is allowed as an option in most cases and is the presumption only in cases where both parents agree to this arrangement. The legislative proposal currently being considered in Michigan (Senate Bill 33) would create a presumption of shared custody (i.e., child shall reside with each parent for specified periods of time) and shared decision-making authority in all cases except where the parents jointly submit an alternative parenting plan. This bill was passed overwhelmingly by the State Senate and is currently being considered by the House Judiciary Committee. Interestingly, this proposal was recently revised to substitute the phrase "shared parental responsibility' for the term "joint custody." This change is reflective of the recent legislative trend to replace potentially problematic and politically charged terms such as "custody" and "visitation" with language that is intended to promote the continued participation of both parents, for example "parental responsibility" and "parenting time" (Ellis, 1990; McWhinney, 1995; Tompkins, 1995).

Advocates for presumptive joint custody—or shared parenting—argue that allowing for joint custody only as an option (e.g., leaving the custody decision to the court's discretion) generally results in an implicit assumption of maternal preference (Hetherington & Stanley-Hagan, 1997; Walters & Chapman, 1991). Proponents have argued for presumptive shared parenting on the basis that the right to parent is constitutionally protected (Hillary, 1993; Maccoby & Mnookin, 1992). In advocating for joint physical custody, Hillery (1993) argued that, among other things, shared parenting promotes a message of mutual responsibility in child-rearing, strengthens the probability that support obligations will be paid, and empowers women by having men share more equally in child rearing. Some women's right advocates also support joint physical custody because of the potential for releasing single mothers from some child-related responsibilities and allowing them employment or educational opportunities (Czapanskiy, 1991). Advocates also point out that presumption statutes are virtually always rebuttable, thus allowing for alternative rulings in cases where presumption is not in the best interests of the child—such as when there has been a history of abuse.

Not surprisingly, there is considerable debate surrounding the presumption of joint physical custody Opponents suggest that legislation which allows joint custody to be forced on those who haven't requested it is coercive, and warn against the indiscriminate application of such an arrangement on all families—particularly high conflict families (Brown, 1994; Elkin, 1987; Flynn, 1991; Schwartz, 1994). Concern also centers in part around the practicality of an arrangement that requires continued interaction between persons whose tendency toward disagreement was of such a magnitude that it resulted in divorce (Johnston, Kline, & Tschann, 1989; Maccoby & Mnookin, 1992). Additionally, critics' concerns are centered around the disruption and financial strain of living in two households, as well as the potential for increased parental conflict due to increased interaction (Donnelly & Finkelhor, 1992; Flynn, 1991; Melli & Brown, 1994). It has been suggested that proponents of joint physical custody may be overestimating divorcing couples' ability to cooperate—even for the benefit of their children (Furstenberg, 1988). Some also argue that this custody arrangement does not truly represent the predivorce relationship for most families, and that joint custody may be used as a negotiating tool by some fathers as a way to reduce child support orders (Felner & Terre, 1987; Weitzman, 1985).

Finally, an additional critique of joint custody proposals has been raised by those who argue that the focus of divorce law and child custody initiatives needs to shift from issues of parental rights toward an emphasis on parental responsibilities (Ellis, 1990; Hallmark, 1997; Hetherington & Stanley-Hagan, 1997; Tompkins, 1995). One alternative to presumptive joint custody that has been proposed by those advocating a parental responsibilities perspective is the establishment of parenting plans.

Proposal Two: Parenting Plans

This proposal, also currently being considered by the Michigan House Judiciary Committee (House Bills 4399 and 4400), calls for the revision of the current Child Custody Act (MCL 722.23; MSA 25.312) to provide for the submission of a parenting plan that would assist in resolving divorce cases for couples with minor children. This legislation is intended to move the determination of custody away from judicial intervention and encourage parental responsibility by requiring divorcing parents of minor children to establish a parenting plan or agreement. This plan would require that parents address the various needs (i.e., physical, emotional, residential, educational) of their children—as well as establish an alternative dispute resolution plan other than litigation, such as mediation. While several states have the option of requiring parenting plans to be presented in contested custody cases or when parents request joint custody, Washington and Louisiana are the only two states which currently require a parenting plan for all custody proceedings.

Proponents of parenting plans argue that they provide a way to emphasize the substantial responsibilities that parents have to their children, rather than treat children as a possession or prize to be "awarded" to the "winner," or custodial parent (Hallmark, 1997; Tompkins, 1995). Parenting plans may also provide a framework for both parents to maintain a meaningful relationship with their children (Thompson, 1994). Czapanskiy (1991) suggests that at minimum parenting plans need to address issues such as where the children will reside, the designation of decision-making authority between parents, and a dispute resolution plan. Specific tasks can be listed and allocated, such as who will physically care for the child, take the child to the doctor, attend teacher conferences, shop for clothes, and take the child to lessons. Delineating the various responsibilities of parenthood emphasizes the important work of childraising (Czapanskiy, 1991). According to Kelly (1994), there are both psychological and economic benefits related to parents making private custody decisions. Parents who understand and agree concerning the needs of their children are often able to do so without excessive economic hardship. Honoring parenting agreements also has the potential to minimize government intrusion and recognizes that the vast majority of disputing and nondisputing parents acknowledge that a stable, known schedule and lessened conflict will serve the best interests of their children (Buehler & Gerard, 1995).

However, a potential negative of House Bills 4399 and 4400—in contrast to the potentially coercive nature of Senate Bill 34—is that it may not go far enough. A potential concern is that while parenting plans have potential to promote parental responsibility, by themselves they may do little more than maintain the status quo. Evidence from the state of Washington, which has implemented parenting plan provisions similar to those proposed in Michigan, suggests that while this type of legislation does seem to encourage increased consideration of shared parenting, most parenting plans maintain traditional custody arrangements; for example, the mother remains as the sole custodial and residential parent (Ellis, 1990). It has been argued that the vast majority of parents may not have enough information to make an informed decision regarding what postdivorce arrangements are available to them or are most beneficial to their children (Kelly, 1993). In many instances, the only court-ordered informational or educational services for divorcing couples exist within divorce mediation services—and these are generally required only in cases where parents exhibit high levels of conflict and/or when custody is disputed. For this reason, Kelly (1993) has suggested that the majority of parenting plans are most likely to be derived through default processes rather than informed and thoughtful consideration. Thus, in order for parenting plans to be beneficial, it is important that both parents be fully educated as to their options and that mediation services be available for all parents who simply need assistance—not just those with high levels of conflict (Kelly, 1993, 1994).

Proposal Three: A Comprehensive, Multi-Faceted Approach

The potential pitfalls of the above legislative proposals pave the way for a third alternative: one that not only doesn't assume the one-size-fits-all mentality of presumptive joint custody but also avoids enacting semantically different legislation that does little more than perpetuate the status quo. The underlying premises behind both the presumptive joint custody and parenting plan proposals, however, do provide an important foundation with which to frame an alternative. For example, the push for joint physical custody as a presumption is reflective of the growing cultural belief that, in general, involved fathering is a valued behavior. Buehler and Gerard (1995) argue that one of the vital functions of law is to affirm desired social behavior, and that legislative proposals should be adopted into consideration that promote the potential for shared parenting. Further, implicit within parenting plan provisions is the recognition that contact with the legal system may serve to exacerbate adversarial behavior and attitudes, which often result in father detachment as well as poorer child outcomes. Therefore, legislation should also attempt to minimize government intervention (as well as reduce costs to individuals and society) by empowering parents to devise their own parenting arrangements that are workable for both parents (Buehler & Gerard, 1995; Kelly, 1993).

There is an additional issue of importance that is only considered implicitly in the previous proposals and that must be explicitly addressed in any custody initiative: Research repeatedly shows that the ability of parents to constrain feelings of anger and guilt and to successfully "co-parent" has a significant effect on both the successful implementation of shared parenting arrangements and postdivorce father involvement (Johnston et al., 1989; Kruk, 1991, 1992; Maccoby & Mnookin, 1992; Pearson & Thoennes, 1988). Postdivorce parental conflict is positively and significantly related to father disengagement from his children (Kruk, 1992), and may be a useful explanation for differences in child well being (Amato, 1993; Emery, 1994). Gatekeeping—where the mother interferes with the father-child relationship (Ahrons & Miller, 1993; De Luccie, 1995; Jordan, 1995; Seltzer & Brandreth, 1994)—may be more pronounced in cases of high parent conflict. Dudley (1991) found that an ongoing conflictual relationship with the former spouse was frequently cited by fathers as a primary reason for their being alienated from their children. Conflict would manifest itself in interference with visitation arrangements or through denigration of the father to the children by the mother. In short, shared parenting arrangements work best in low-conflict or conflict-contained situations. The establishment of collaborative forums which minimize conflict and emphasize the responsibility of both parents to distinguish personal feelings from the needs of the children must be the central goal of innovative child custody initiatives (Emery, 1994; Hetherington & Stanley-Hagan, 1997).

Any legislative alternative which attempts to affirm involved fathering as a valued social behavior, to avoid a potentially adversarial judicial system, and to accentuate the responsibility of parents to curtail postdivorce conflict would need to be strengthened by comprehensive, multi-faceted policy initiatives. These initiatives, which emerge from the accumulating body of divorce and custody literature, include divorce education, divorce and custody mediation, and legal professional training.

Summary

It is clear that there are many mitigating factors that impact the success of postdivorce parenting arrangements. This complex, multiply-determined problem requires policies which are comprehensive and multifaceted. To this end, the following proposal for determination of child custody should be considered:

• The crucial starting point is to require parent education for divorcing couples with minor children. This provision will allow for the potential negative effects of divorce to be addressed and planned for. It will also inform both parents of the intricacies of the legal system and make clearer for them their rights and responsibilities. Parenting responsibility, conflict resolution, legal and physical custody, child support, and visitation are just some of the issues that should be addressed.
• The next step would be to encourage the divorcing couple to work out their own parenting plan or agreement. This process would allow for the couples to pick custodial arrangements for themselves, as well as provide financial savings for both individuals and society.
• If couples are struggling to develop a parenting plan themselves, then a short mediation period should be required. Once again, there is enough evidence to suggest that—with a little help—most couples will be able to reach some sort of an agreement.
• In cases where the divorcing couple is not able to forward a mutual request, each parent could be required to separately submit a parenting plan proposal—with the stipulation that the most realistic and "equitable" arrangement will be adopted. Thus, absent a showing of reason, the court could order the proposal which maximizes contact and involvement with both parents.
• Finally, in that there will inevitably be cases that will filter through the system, it is imperative that professional training be required for both attorneys and judges on the family law bench. It is important that these individuals wh—in a short time frame are required to make decisions that could impact families for a lifetime—receive the appropriate information necessary to make informed decisions.

This proposal—if implemented in its entirety—would come the closest to a) emphasizing the rights and responsibilities that divorcing couples have as parents; b) affirming the desired social behavior that both parents be involved in child-rearing; c) providing education and mediation services designed to reduce the detrimental effects of parental conflict; and d) allowing for the possibility that parents will develop a custody arrangement (joint or sole, legal or physical) that they feel most comfortable with. This alternative provides an intermediate standard that could serve to avoid the potential coerciveness of presumptive joint custody, yet avoid leaving the custody decision to a judicial system which has historically contributed to the real and perceived barriers that divorced fathers experience in attempting to build and maintain strong relationships with their children. It has been argued that "men's fathering behavior is a product of both what is expected and what is possible" (Brooks & Gilbert, 1995, p. 266). It is necessary that innovative custody initiatives, like the proposal described above, reflect the changing expectations of fatherhood and make possible the type of fathering behavior that is becoming increasingly expected by society as well as by fathers themselves.

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