The Commission began its focus on custody and visitation issues by examining the demographic and economic factors that contribute to the increase in divorce and out-ofwedlock births. In addition, the Commission examined ways in which custody and visitation determinations are currently made, the standards used to reach these determinations, the environments in which the standards are applied, and the problems often presented by the ways the determinations are made.
High rates of separation and divorce, as well as births to unmarried parents, have led to over a quarter of the Nation's children living with only one parent. Indeed, over half of all children sometime before they reach adulthood will live in a home with only one parent. For too many children, this has jeopardized the emotional and financial support that they need from both parents. Although many single parents provide the nurturing and support that help their children succeed in life, the evidence is clear that most children do best when they receive emotional and financial support from both parents
More than 18 million children of separated, divorced and unmarried parents
live with only one parent (see Chart 1). The percentage of children living
with one parent almost doubled from 14.7 percent in 1970 to 28 percent
in 1993.
Note: Children under age 18
Source: U. S. Department of Commerce, Bureau of the Census and unpublished
data.
The number of children each year whose parents divorce increased by 16 percent from 870,000 in 1970 to 1,005,000 in 1990 (see Table 1). The number of divorces increased by 67 percent between 1970 and 1990 2 During the same period, the number of births to unmarried parents increased by 300 percent.
In 1970, one in ten babies was born to unmarried parents; by 1992 three out of every ten babies were born to unmarried parents. There were 399,000 births to unmarried parents in 1970; the number of births to unmarried parents increased to over 1.2 million in 1992 (see Chart 2 and Table 2).
TABLE 1
Children Involved in Divorce: 1960 to 1991
|
1960 |
1970 |
1980 |
1990 |
1991 |
|
| Estimated # of Children involved in divorces (thousands) |
463 |
870 |
1,174 |
1,005 |
985 |
| Average # of children per decree |
1.18 |
1.22 |
0.98 |
NA |
NA |
| Rate per 1,000 children under 18 years of age |
7.2 |
12.5 |
17.3 |
15.7 |
15.1 |
NA - Not Available
Source: U. S. Department of Commerce, Bureau of the Census, STATISTICAL
ABSTRACT of the U. S., 1993, Table 144, p.101.
Note: births to unmarried women as a percent of total
births.
Source: U. S. Department of Health and Human Services, National Center
for Health Statistics, Monthly Vital Statistics Report and unpublished
data.
TABLE 2
Percentage of Births to Unmarried Women,1992
| Race/Ethnic Group |
Total Births |
Unmarried Births |
% of Total Births Unmarried |
| All Women |
4,065,014 |
1,240,172 |
30.5 |
| White |
3,201,678 |
742,129 |
23.2 |
| Black |
673,633 |
452,476 |
67.2 |
| Asian/Pacific Islander |
150,259 |
23,742 |
15.8 |
| American Indian |
39,453 |
21,825 |
55.3 |
| Hispanic |
654,418 |
261,538 |
40.0 |
Source: U.S. Department of Health and Human Services, National Center of Health Statistics, Monthly Vital Statistical Report, Vol. 44, No. 3 Supplement, Table 9, p. 43
Decades of stagnant and declining wages have placed serious strains on families and contributed both to the breakup of marriages and the fact that many individuals are having children without forming marital families. These trends have been accompanied by increases in child poverty (see Table 3). Since 1989, real income for all family types has been falling. During the same period, productivity, measured by output per hour in the business sector, has increased by over 30 percent.3
At the same time that real family income has been declining, family costs have been increasing. During the period 1970 to 1991, the median price of a new, one-family house increased nearly 23 times as fast as median come for married couples. The cost of health care in the same period increased more than four times as fast as median income for married couples. Overall personal consumption grew almost twice as fast as the median income for married couples between 1970 and 1991.
Note: In the paragraph and chart following, the Commission makes assertions which are NOT supported by the source referenced. See correction following the Commission's chart.
One way that many married couples have responded to declining incomes and increasing costs is for both parents to enter the labor force. Between 1970 and 1992, the percentage of mothers in the labor force increased by over 79 percent. In 1994, 68 percent of married mothers and 70 percent of all mothers were working full-time outside the home (see Chart 3). These changes in workforce participation by married women have resulted in higher incomes for their families. In 1991, married couples where both parents were employed had over 60 percent more gross income than married couples where one parent was not employed. Indeed, the median income for families where both parents work outside the home grew by nearly 19 percent between 1970 and 1991. For all other families, median income declined.7
According to the Census Bureau Report: Current Population Reports, Population Characteristics, P20-484, Marital Status and Living Arrangements: March 1994 chart on Living Arrangements of Children, March 1994 (page 36), the actual distribution of working versus non-working mothers is very different. In married families, 68% of mothers work full-time, but in unmarried families only 41% of mothers work full-time.
Source: U. S. Department of Commerce, Bureau of Census, Current Population Reports, Population Characteristics, P20-484, Marital Status and Living Arrangements: March 1994
Why did the commission publish statistics in its report, from an "unpublished study" allegedly based on Census Data which diverges so dramatically from the Census Bureau's published data? I don't have the answer.- Richard Bennett
With the increased labor force participation of women, families have experienced increased work-related expenses. For most families, the largest of these expenses is child care. Child care costs $3,276 a year on average for a family whose youngest child is under 5 years of age. This represents 20 per cent or more of the median pre-tax income of single mothers and percent of the median pre-tax income of two-earner married couples.
If families with two earners are strained financially, the situation in one-parent families is even worse, especially when these families are headed by women. In 1991, two earner married couples had nearly 70 percent more income than single-parent families headed by men and nearly 300 percent more income than single-parent families headed by women. One-earner married couples had 33 percent more income than single-parent families headed by men and 80 percent more income than single-parent families headed by women. Between 1970 and 1991, the median income of families headed by a single male declined by over 8 percent, and the median income of families headed by a single female declined by nearly 8 percent9.
Children in single-parent families are also much more likely to be poor than children in two-parent families. Only 9 percent of families with children under 18 headed by a marred couple are poor, compared to 46 percent of such families headed by a woman and 23 percent of such families headed by a man.
The low incomes of single-parent families with children are due, in part, to a widespread failure of non-custodial parents to pay child support. In 1991, about 60 percent of the 9.9 million women and about 80 percent of the 1.6 million men who are custodial parents received no child support. These individuals either had no child support orders or had orders with payments due and received no payment. Of the individuals who were owed child support under a court order, only about 52 percent of women and 43 percent of men received full payment.11
Although a greater percentage of men than women do not receive child support, the consequences of the failure to receive support are more severe for women. First, far more women than men 5.9 million compared to 1.3 million do not receive child support. Second, because of women's lower incomes the economic effect on their households of not receiving support is greater on average for custodial mothers than it is for custodial fathers. Custodial mothers who received no child support in 1991 had an average annual income of $ 11,140, compared to $27,221 for custodial fathers who received no child support. If all the fathers who owed child support had paid in full in 1991, households where mothers were the custodial parent would have had 24 percent more income than if no child support were paid. In contrast, if all mothers who owed child support had paid in full, households where fathers were the custodial parent would have had 9 percent more income.
Children who have contact with their non-residential parent are more likely to receive child support. Of the 9.9 million custodialmother families, 5.7 million noncustodial fathers had joint custody, visitation, or both in 1991, while 4.2 million had neither. Of those fathers with visitation and/or joint custody who were supposed to pay support, about 81 percent made full or partial payment, while only 56 percent with neither custody nor visitation paid all or some of their child support. Of the 1.6 million custodial-father families, 1.l million noncustodial mothers had joint custody, visitation, or both in 1991, while less than 500,000 had neither. Of those mothers with visitation and or joint custody who were supposed to pay support, about 65 percent made full or partial payment, while only 48 percent with neither custody nor visitation paid all or some of their child support (see Table 4).
In addition to the possible loss of child support, children who lose contact with their nonresidential parent are likely to lose the emotional support of that parent. Yet, a large percentage of children who live with only one parent have little contact with the other parent. The National Survey of Children found that 49 percent of the children in its national sample who lived with only one of their parents in 1981 had not seen their nonresidential parent in the last year, and only one in six averaged contact once a week or more often.
Because so many nonresidential parents are fathers, the problem of absent fathers and its impact on children is of great national concern. Profound feelings of rejection and grief often reverberate in the children of these fathers for years. There are sometimes complex reasons why men lose contact with their children, from apathy to a belief that the system is biased against them. Lack of employment and economic success also have contributed to father absence. For whatever reason, the consequences of father absence for children are typically detrimental. The problems of mothers who are single, residential parents are of great national concern, too. In many instances, they are raising children alone, with inadequate financial and emotional support. Moreover, they are going it alone in a world that is increasingly requiring more of them as well as of their children. Often without sufficient resources, even when employed full time, these mothers can become overburdened with their responsibilities. Whether from too little time with even one parent, too little income, or both, children too often suffer.
More than ever, today's children of separated, divorced, and unmarried parents need the emotional and financial support of both parents.
Table 4:
Child Support and Money Income of Custodial Parents
Source: U. S. Dept. of Commerce, Bureau of the Census, Current Population Reports, Series P60-187.
The following charts from the Census Bureau were not included in the Commissions's report, but are added here for clarification. RB.
Source: U.S. Department of Commerce Economics and Statistics Administration BUREAU OF THE CENSUS, SB/95-16 Issued June 1995
Source: U.S. Department of Commerce Economics and Statistics Administration BUREAU OF THE CENSUS, SB/95-16 Issued June 1995
The Commission misstates the facts regarding both employment and the payment of support. The facts indicate more money is to gained, a lot more money, by requiring custodial parents to work, just as married parents work to support their children, than is to be gained from stricter enforcement of support orders, all philosophical issues aside. RB.
When married parents legally separate or divorce, they go to court where, during the proceedings, a determination is usually made about the custody of their children and visitation by the nonresidential parent. The parents may agree on the custody and visitation arrangements or seek a court determination of the issues. If they agree, the court reviews and generally approves their agreement if it is not inconsistent with the legal standards of the jurisdiction. If they disagree, the court must obtain sufficient information to decide how to award custody and visitation in a manner consistent with these legal standards.
When parents separate or divorce, or when paternity is established for a child born outof-wedlock, an order is usually entered for child support. The Commission has not focused on child support issues because earlier Commissions, including the National Commission on Children and the U.S. Commission on Interstate Child Support Enforcement, made extensive recommendations for child support reform. This Commission agrees, however, that parents should financially support their children in accordance with State child support guidelines. Moreover, although child support issues are often interwoven with other issues of parental responsibility, the Commission believes that payment of child support and access to children are separate and distinct issues. Denial of one should not be a justification for the refusal to provide the other.
An award of custody determines both the legal responsibility for and the living arrangements of children whose parents do not live together. Sole custody means that children live with one parent who has full legal responsibility for them. Joint custody's meaning varies from jurisdiction to jurisdiction but in its fullest sense means that both parents have equal legal rights and responsibilities and the children reside in each parental home on some scheduled basis that divides their time. For this kind of arrangement to be effective, the parents must be able to cooperate, and they must usually live in reasonable proximity to each other and to the children's schools.
Some custody awards distinguish legal custody from physical custody. Legal custody specifies who has legal responsibility for making decisions about the child's life. Physical custody specifies who has responsibility for where the child lives. Legal custody may reside in one parent while physical custody is shared. Conversely, legal custody may be given to both parents but physical custody to only one. When parents share legal custody, they are both legally responsible for the child. They share in making important decisions about how the child is raised for example, which schools the child will attend, what the child's religious upbringing will be, and how the child's medical treatment will be handled.
Data on custody awards have only recently begun to be collected at the national level. According to the National Center for Health Statistics, in 1990, in the 19 States that reported, 53 percent of divorces involved children. In the great majority of these cases custody was not contested.'5 In 32 percent of the cases, custody was not even specified. In the cases in which custody of children was specified, mothers had sole custody in 72 percent of the cases. Joint custody was specified in 16 percent. Fathers had sole custody in 9 percent.
In addition to resolving custody, courts usually provide for visitation by a nonresidential parent unless there is evidence that contact with that parent would subject a child to harm from substance abuse, child abuse, domestic violence, or other causes.'6 All States give grandparents the legal right to seek visitation," and some States provide it to former stepparents as well. Visitation arrangements allow nonresidential parents to remain involved in the lives of their children and provide children with a way to know both parents.
All States articulate in statute or case law their legal standards for child custody and visitation, which prescribe the factors that courts must consider when they determine how children will be cared for when their parents live apart. Child custody and visitation law has undergone several major transformations from its English Common Law origins. Under Common Law, the father had an absolute right to the custody of minor children to the exclusion of the mother's Common Law was superseded by new enactment's in the late nineteenth and early twentieth centuries that reversed earlier practice in part to presume that the mother was the best parent to care for children below the age of seven. The new laws also presumed, under this "tender years" doctrine, that the mother had visitation rights with children older than seven, unless the presumption was overcome by proving the mother to be unfit.'9
Today's custody laws have abandoned the tender years doctrine and are, with two exceptions, gender-neutral. The standard for custody awards in 45 States is "the best interests of the child."
Seven of the 45 States have "best interests of the child" standards that do not include any specific factors to be evaluated in determining the best interests of the child.2' The determination of the best interests of the child in these States is left to judicial discretion and case law. The other States specify in statute various factors that the court should consider in determining the best interests of the child.
The Michigan standard, which has a large number of factors to be considered, is illustrative. Title 722.23 of the Michigan Child Custody Act of 1970 defines best interests of the child as follows:
Sec. 3 "Best interests of the child" means the sum total
of the following factors to be considered, evaluated, and determined by
the court:
(a) The love, affection, and other emotional ties existing between the
parents involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and continuation of the educating and raising
of the child in its religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized
and permitted under the laws of this state in place of medical care, and
other material needs. (d) The Length of time the child has lived in a stable,
satisfactory environment, and the desirability of maintaining continuity
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child
to be of sufficient age to express a preference.
(j) The willingness and ability of each of the parents to facilitate and
encourage a close and continuing parent-child relationship between the
child and the other parent.
(k) Any other factor considered by the court to be relevant to a particular
child custody dispute.
Standards for custody determination provide a framework for parenting decisions that separating and divorcing mothers and fathers, sometimes with the assistance of their attorneys, may make before they come to court. In addition, as previously noted, these standards are applied by judges to determine custody when parents cannot agree about arrangements for the children. In these contested cases, the parents are sometimes, but not always, represented by attorneys and argue conflicting positions. The court must decide between the positions or decide, based on the standards, some third position that it believes is in the best interests of the children. Although the conflict between the parents is legally resolved, acrimony often continues to prevail between the parents.
Whatever initial custody and visitation arrangements are approved or decreed by the court, parents may return to court to request a change in those arrangements if circumstances change. Most States require that the changed circumstances be material or substantial before they will consider a change in arrangements. Courts have differing interpretations of this standard. Some will consider modifications on the basis of the changing developmental stages of the child. Others have more exacting standards, such as by requiring physical moves that alter the ability of parents to comply with child access provisions of orders, or requiring evidence that the current custody arrangement is harmful to the child.
The Commission heard testimony both about the legal standards for custody and visitation and about the need for court procedures to better address problems of continuing unresolved hostility between separating and divorcing parents.
With respect to legal standards for custody and visitation, the Commission heard conflicting testimony about whether changes should be made. For example, Richard A. Warshak, Clinical Professor at the University of Texas Southwestern Medical Center,23 and Sanford L. Braver, Professor of Psychology and Co-Director of the Program for Prevention Research at Arizona State University24 , urged that State custody standards be changed to establish a presumption25 of joint legal custody. They argued that joint custody results in more satisfied parents, greater compliance with child support orders, and better outcomes for children.
June Carbone, Associate Professor of Law, Santa Clara University School of Law, opposed a presumption of joint custody and advocated the establishment of a preference of sole custody in the primary caretaker.26
Others opposed a presumption of joint custody or, indeed, any presumption or preference. Gerald Nissenbaum, President of the American Academy of Matrimonial Lawyers, recommended that there be no presumption of any form of custody.27 Judith Wallerstein, Founder and Senior Consultant at the Center for the Family in Transition, told the Commission that she had seen no evidence that any particular form of custody was uniformly helpful to the post-divorce adjustment of children.28 Sally Brush, Director of the Beech Acres' Aring Institute, cautioned the Commission to avoid making general assumptions about the appropriateness of particular custody and visitation arrangements in favor of arrangements that are responsive to the circumstances of individual cases.29 Katharine Bartlett, Professor of Law at Duke University, agreed that decisions about how children are to be raised following a divorce should be tailored to individual situations.3o
With respect to the application of legal standards, both mothers and fathers appearing before the Commission testified that, although all but two States have laws that are gender neutral, gender bias influences custody proceedings. Some claimed that the preponderance of sole custody awards to mothers3' is prima facie evidence of gender bias. Others pointed out that in the overwhelming majority of cases sole custody is awarded to the mother because fathers do not request custody. Others argued that fathers do not request custody because they feel or are advised by their attorneys that to do so would be futile.
Karen Czapanskiy, Professor of Law at the University of Maryland, told the Commission that, based on her analysis of studies of gender bias in the courts conducted in about 60 percent of the States, for the most part, custody awards in favor of women did not result from judicial gender bias but rather from the fact that women, even those who work outside the home, are the primary caregivers of the children before divorce. By awarding primary physical custody to women the courts are merely continuing the arrangement that the parents established before the divorce.2
State court gender bias studies have found that gender bias against both women and men does exist in custody decisions in other respects, however. For example, mothers sometimes are held to higher standards than fathers in their sexual behavior. In addition, even when mothers are the primary caregivers, fathers are sometimes given more credit than mothers for any child rearing activities they perform. Or, judges may order custody in favor of the father because the mother works outside the home, even though the father also works outside the home. Conversely, some courts have been unwilling to award custody to fathers because fathers are presumed to be unable to care for children or because it is not their "proper role" to do so.33
Wholly apart from gender bias, the Commission heard testimony from a range of parents dissatisfied with the custody and visitation arrangements imposed on them by courts. Such dissatisfaction breeds continuing conflict and sometimes brings parents back to court. Often, returning to court means an additional adversarial confrontation that could have been avoided if resources had been available to help parents work out their concerns together initially. Yet until recently, most courts have had no process to help divorcing or unmarried parents work through their differences about parental decision-making, parenting time, and residential arrangements for the children.
Indeed, parents facing dissolution of their marriages are often unable to obtain any assistance in helping them work out what is best for the children. They are unable to find community resources that will help them try to save their marriages, or, if they are divorcing, that will help them resolve conflict and develop parenting plans they agree are best for all concerned. If they go to court with conflicting views about how the children should be cared for after they part, they are not helped to come to agreement. Rather, the court decides their competing claims. More and more parents are finding that court decisions are unsatisfactory and fail to avert continuing hostility and conflict to the detriment of the children.
For unmarried parents who want to try to formalize their role in their children's lives . even fewer resources are available for help. Moreover, custody and visitation issues for unmarried parents often arise in a different context. Unlike separating and divorcing parents, there may be no event that brings unmarried parents to court. Fewer than half of the children of unmarried parents have paternity legally established.34 For these, paternity may be established through a written declaration or in an administrative process outside the court. Even when paternity is established in court, it may not be accompanied by a determination of custody and visitation. And the court systems that are beginning to provide services to help divorcing parents mediate or otherwise reach agreement on custody issues have rarely addressed the different needs of unmarried parents.
For example, one of the ways in which unmarried parents are different from divorcing or separating parents is the extent to which they are involved in informal parenting arrangements for their children, which may occur in the absence of established paternity or formalized child support. As Robert Lerman35 has shown, substantial percentages of young, unmarried fathers actually live with their children. Nearly a quarter of these fathers, aged 21-31 years in 1988, lived with all of their children and nearly 30 percent lived with all or some of their children. About half of the unmarried fathers who lived with their children also lived with the children's mother. For these parents living together with their children, formalizing custody and visitation arrangements to the extent it arises at allpresents very different concerns than it does for divorcing parents. At the same time, other unmarried parents have never lived in the same household. As Ronald Mincy, Program Officer at the Ford Foundation and Ralph Smith, Director of Planning and Development at the Annie E. Casey Foundation,36 told the Commission, these individuals need help in learning how to "co-parent" before they can work out successful parenting arrangements.
Finally, the Commission heard testimony from a range of expert witnesses and parents about the importance of creating a court system that is responsive to individual circumstances and gives greater deference to the wishes of parents. Katharine Bartlett, Professor of Law at Duke University, stressed that courts should place greater weight on parents' views about what is best for their children. Isolina Ricci, Administrator, Statewide Office of Court Services, Judicial Council of California, told the Commission that families are complex and require a case-by-case approach that is best accomplished by requiring the parents to develop a parenting plan, either with or without the assistance of a mediator.38 Nicholas Zill, Vice President and Director of Family Studies, Westat, Inc., called for the development of meaningful parenting plans that allow the active engagement of both parents in at least some aspects of their children's lives.39
The Commission did not have the resources to conduct a systematic evaluation of State standards for custody and visitation determinations. Although the Commission considered but voted down a recommendation that States adopt a presumption of joint custody, in other respects the Commission's silence on the matter of standards should not be interpreted as an endorsement or rejection of a particular approach. >From the review that the Commission has made, it is apparent that there are areas in which further clarification of standards and guidelines for decision-making is warranted. The Commission urges States to review on a continuing basis their standards and the outcomes that result from them. In particular, States should ensure against gender bias both in their standards and in the application of their standards by courts.
In the Commission's view, more important than reform of State standards for determining custody and visitation is reform of court processes for reaching and formalizing custody and visitation arrangements. Moving away from traditional, adversarial court processes to procedures and services that help parents come to their own agreements about their children's care can have several salutary effects. It can reduce the hostility that so of ten accompanies the resolution of custody and visitation issues and help parents minimize conflict in the ongoing relationship they must have with each other in order to have effective relationships with their children. It can also improve voluntary compliance with custody and visitation orders and greatly reduce both the need for enforcement actions and court resources devoted to such actions. As a result, it can have positive effects for children, who often suffer from continuing conflict between their parents. In sum, the Commission believes that there is more potential benefit to be gained for parents and children from reforming court processes to help parents come to agreement about their needs and the needs of their children than from making changes in custody and visitation standards and laws.
In addition to court reform, the Commission believes that more should be done to build and reinforce community supports for families. Many American families with children are "stretched thin." Time spent at work as well as hours spent commuting can significantly reduce parenting time. Single parents who work outside the home face even greater difficulties than two-parent families. Increasingly, families need support from their communities in helping them meet their responsibilities to their children.
Communities can help families through times of trouble and assist in peaceful resolution of conflict. They can help prepare young people for adult responsibilities in the family, community and the world of work. The institutions of the community its religious congregations, neighborhood organizations and voluntary associations, businesses, schools, law enforcement agencies and courts, public and privately sponsored programs to provide income and food, health care, job training and social and mental health services can each provide critical support to families. In short, the Commission believes that supportive communities can empower parents to play a continuing, active role in their children's lives.
In summary, the Commission finds that much can be done to help Americans prepare for family life, resolve conflicts that emerge in marriage, and reach agreement on the best way for both parents to stay involved with their children when they are separating, divorcing or have never been married to each other. Both communities and courts should facilitate the process of empowering parents to decide together how the children should be raised in marriage, after a divorce or, if parents are not married, when paternity is established. The remainder of this report will develop the Commission's recommendations on some of the ways in which these goals can be achieved.