Child Custody and Child Support

Since the 1960s, growing proportions of children worldwide have been experiencing their parents’ separation at an increasingly early age. Parental separation entails a series of transitions and family reorganizations, including changes in parenting arrangements, residence, family relationships, and standard of living, that influence children’s development and adjustment over time. All pose risks for children.

When parents separate, a number of important decisions have to be taken. These relate to:

• where children will live and with whom – usually referred to as child custody, child physical custody, or child residence;
• who will make decisions about the children’s day to day care and their overall
• upbringing in areas like education, religious affiliation, and health – sometimes referred to as child legal custody;
• what arrangements will be made for the non-custodial or nonresident parent to stay involved in the children’s lives – known as child contact, access, or visitation;
• how property and assets will be divided;
• whether financial transfers between the ex-spouses will continue – called spousal support/maintenance;
• how sufficient financial provision will be ensured for the proper maintenance and care of the children – usually called child support.

These decisions are critical factors in promoting healthy child development and reducing the risk of difficulties enduring into adulthood. Changing approaches to child custody and child support reflect a mix of tradition, prevailing cultural values about childrearing, expectations about family life, and sensitivities surrounding state intervention in intensely private family matters.

There is a growing tendency to encourage parents to make decisions and agree arrangements for their children informally between themselves, often called ‘‘private ordering,’’ rather than rely on legal remedies and the courts. But reaching agreement can be fraught with difficulty given the emotional, relational, and practical issues surrounding parental separation and parenting across two households. When parents cannot agree, they normally turn to the courts to resolve their disputes, and so the search for less adversarial, more conciliatory approaches to decision making, which minimize tensions and conflicts for parents and children alike, has intensified. Concerns have been expressed not only about the increasing number of children experiencing family breakup, but also about the potentially detrimental consequences for their well-being and development. Research indicates that increased mental health problems for children are related to stresses such as parental instability, interparental conflict, loss of time with parents, and economic decline (Amato 2000). Governments in countries with high divorce rates, such as the US, Canada, Australia, and the UK, struggle to find the correct balance between respecting the privacy of family life and protecting vulnerable children who grow up in increasingly complex and shifting family structures.

Such dilemmas are comparatively new. Until the mid-nineteenth century, when parents separated fathers had an absolute right of control over their children and the mother had access only at the father’s discretion. Attitudes began to change when awareness of the importance of maternal love and care began to emerge. In 1839, the Child Custody Act in England made it possible for the court to transfer legal custody of children under the age of 7 to the mother and made provision for visitation rights, in the belief that children should be brought up enjoying the affection of both parents. This ‘‘tender years’’ doctrine continued to influence the determination of child custody throughout most of the twentieth century. Mothers were usually regarded as the best parent to provide psychological, emotional, and physical care. Moreover, the classical economic model of the western household, involving a breadwinner husband and a homemaker wife, reinforced the belief that mothers should be granted custody of children after divorce and that fathers should provide the necessary financial support and play a role in the upbringing of their children through regular access.

Since the 1960s, this traditional gendered division of responsibilities has been steadily eroded. Mothers have gained much greater financial independence through increased participation in the workforce and fathers have devoted more time to childcare activities. The appropriate determination of both child custody and child support has been thrown into question and simple gendered solutions no longer appear appropriate. Although the ultimate test is that the child’s best interests have primacy when parents separate, keeping both parents involved, emotionally and financially, in their children’s lives has become a policy imperative. Either the mother or the father having sole custody of the children is increasingly viewed as the least desirable option. The focus is on encouraging joint parental responsibility so that children spend time with both parents, although the links between parenting time and shared parental responsibility are likely to be complex and, as yet, are not well understood.

In some countries, terminology has changed to reflect this shift. The 1989 Children Act in England and Wales, a landmark piece of legislation, emphasized that the primary responsibility for the care and upbringing of children rests with both parents. The notion of one parent having ‘‘custody’’ of a child was abandoned because it implied a kind of ownership which could exclude the other parent. Instead parents are referred to as the resident parent (with whom the child lives most of the time) and the nonresident parent (who has contact with the child but does not provide the primary residence). Residence orders, determining where a child should live, do not assign custodial status to either parent. In 1995, Australia adopted similar terminology, and in 2004 New Zealand also followed this trend. Whatever terms are used, however, arrangements for children continue to arouse strong emotions in and conflict between parents.

When courts have to be the final arbiter of arrangements for children, judges often turn to mental health professionals and social workers to help them make better informed and more effective decisions about what would be in a child’s best interests. In the US, child custody evaluations have become a burgeoning field of practice, and concerns have been expressed about overreliance on the recommendations they contain. Tippins and Wittman (2005) have argued that custody evaluations can have a profound impact on the direction a child’s life will take after judicial disposition and that the best interest standard is a legal and sociomoral concept rather than one capable of scientific assessment. Given that many custody recommendations lack an adequate empirical foundation and tend to be influenced by current trends, Tippins and Wittman suggest that they hold significant potential to harm rather than protect a child.

In Canada, by 2000 joint physical custody was awarded for 37 percent of children whose custody was part of the final divorce decree (Juby et al. 2005). While there is some evidence that children living in shared care/joint custody arrangements seem to be better adjusted than those in sole custody situations (Bauserman 2002), the parents who manage to share care may well differ in important ways such as having higher levels of education and financial resources. Nevertheless, disentangling the emotional ties associated with the marital relationship while reformulating parental ties represents a hugely demanding and difficult transition for parents, and making joint parental responsibility a reality is no easy task (Walker et al. 2004). Sole custody is a more straightforward option to implement, although it typically results in significant dissatisfaction among non-custodial parents who experience their parental role as episodic rather than continuous. Mothers may well regard it as a fairer reflection of the allocation of parenting tasks prior to separation, however, since in the majority of households it is they who undertake most of the childcare. Certainly, parents who agree their own arrangements tend to continue previous allocations of responsibility. It is still the norm for children to live mainly with mothers despite growing demands by fathers’ groups for legal presumptions of equal parenting time. Research into the benefits for children of equal parenting time or dual residence is extremely limited, however, and in France it is ruled out as being against the best interests of children. More longitudinal research is needed to establish what kinds of parenting arrangements may be in each child’s best interests, in view of the complexities and changes associated with post separation family relationships and obligations. Nevertheless, existing research indicates that the factors having the greatest impact on children after parental separation are quality of family relationships, notably those between children and each parent, continuity of parental care, and financial stability (Amato & Gilbreth 1999). How to ensure that fathers stay committed and involved when they are not the resident parent remains a key challenge. Requiring them to pay child support is one mechanism.

Lone parent families have always been the most economically vulnerable, and for over 100 years attempts have been made to recover money from fathers who no longer live with their children. Collecting payments has presented huge challenges and large numbers of mothers become dependent on social welfare assistance. Many of the current policies have grown out of concerns not only about the lower living standards of lone parents, but also about the numbers of parents dependent on welfare, the low amounts of child support paid by non-custodial parents, and the difficulties of enforcing payments through the courts. Child support policy straddles many technical domains, including estimating the costs of bringing up children, which are undoubtedly higher in separated households, the interaction between income support and taxation policy, and the complexities associated with dividing assets between parents and making post separation financial settlements. These calculations are complicated further by varying perceptions of what mothers and fathers regard as fair and just. Residence and contact arrangements are highly variable and liable to change as children grow up and when stepfamilies are formed, making it hard for policies relating to child support to stay simple, transparent, and appropriate.

Governments have attempted to enforce parental responsibility through a variety of child support regimes, which seek to be fair in light of the complex personal circumstances of most separated families, to advance the well-being of children, to ensure cooperation and compliance, and to reduce the cost of lone parenting to the public purse. Achieving these diverse agendas is problematic and there have been some serious failures. Child support policy has become the locus for negotiating the limits of public and private responsibility for children. Whereas governments in England, Canada, and Australia have developed and imposed arm’s length, formulaic determinations rarely regarded as fair by fathers or mothers, the trend in continental Europe has been toward creating enabling structures and procedures which encourage parental cooperation in working out realistic child support arrangements, which may ensure higher compliance rates.

Although courts have long maintained that child support and child contact are independent obligations, they are inevitably closely associated in the minds of parents (Bradshaw & Skinner 2000). Most of the evidence suggests a generally positive relationship between paying child support and having contact with children.

Proposals to link the amount of child support paid to the amount of parenting time are contentious, however. Fathers rarely question their parental obligation to contribute financially to the care of their children, but calculations relating to child support and modes of collecting and enforcing payments need to be facilitated through an increased understanding of the emotional turmoil that accompanies parental separation, and the inevitably changed and changing nature of the relationship non-residential parents have with their children. Facilitating con tact and involvement between nonresident/non-custodial parents and their children when it is in children’s best interests to do so may be critical in ensuring that financial support is forthcoming. Child support is not just about money, and more research is needed to understand non-compliance and the complex inter relationships between child residence, contact, perceptions of fairness, and financial transfers.

Child support and child contact remain two of the most complex and controversial aspects of family policy because they require delicate balances to be struck between the competing needs of children, resident parents, nonresident parents, and the state (Smyth & Weston 2005). Moreover, they are primarily adult issues, but hearing the voice of the child is an increasingly important aspect of decision making relating to arrangements which involve children. Young people are very concerned with issues of fairness and an enduring sense of family despite the breakdown of their parents’ relationship. Although shared parenting may better meet the needs of children and young people than traditional custodial arrangements, and more closely reflect their perceptions of what is fair in terms of contact and child support (Parkinson et al. 2005), achieving it remains a major challenge.

References:

1. Amato, P. R. (2000) The Consequences of Divorce for Adults and Children. Journal of Marriage and the Family 62(4): 1269 87.
2. Amato, P. R. & Gilbreth, J. G. (1999) Non-Resident Fathers and Children’s Well-Being: A Meta- Analysis. Journal of Marriage and the Family 61:557 73.
3. Bauserman, R. (2002) Child Adjustment in Joint- Custody versus Sole-Custody Arrangements: A Meta-Analytic Review. Journal of Family Psychology 16: 91 102.
4. Bradshaw, J. & Skinner, C. (2000) Child Support: The British Fiasco. Focus 21(1): 80 6.
5. Corden, A. (2001) Comparing Child Maintenance Systems: Conceptual and Methodological Issues. International Journal of Social Research Methodology 4(4): 287 300.
6. Juby, H., Le Bourdais, C., & Marcel-Gratton, N. (2005) Sharing Roles, Sharing Custody? Couples Characteristics and Children’s Living Arrangements at Separation. Journal of Marriage and the Family 67(1): 157 72.
7. Parkinson, P., Cashmore, J., & Single, J. (2005) Adolescents’ Views of the Fairness of Parenting and Financial Arrangements after Separation. Family Court Review 43(3): 429 44.
8. Smyth, B. & Weston, R. (2005) A Snapshot of Contemporary Attitudes to Child Support. Research Report No. 13, Australian Institute of Family Studies.
9. Tippins, T. M. & Wittman, J. P. (2005) Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance. Family Court Review 43(2): 193 222.
10. Walker, J., McCarthy, P., Stark, C., & Laing, K. (2004) Picking Up the Pieces: Marriage and Divorce Two Years After Information Provision. Department for Constitutional Affairs, London.