Joint Legal Custody Research Articles

The repeal of Australia’s problematic family law presumption (and other amendments): cautiously welcomed – but what has been lost?

ABSTRACT Felicity Kaganas was intrigued by the legal concept of presumptions. She explored the presumption in the family law of England and Wales before and after its introduction in 2014. The presumption which began operating in the Australian Family Law Act 1975 (FLA) in 2006 stated that ‘equal shared parental responsibility’ (‘joint legal custody’ or guardianship) is in the best interests of children and created a legislative link between the making of such an order to shared parenting time orders. Many subsequent reviews of the FLA recommended amending the presumption, if not repealing it, but no changes were made. Meantime in England and Wales a less intrusive presumption was introduced, together with a Practice Direction intended to limit its over-use. Then in 2023 major changes to the FLA in Australia were introduced, including repealing the presumption. They became operative in May 2024. This article explores their potential to better protect parents and children who have experienced family violence. It also examines the potential consequences of the repeal of sections that provided guideposts when making shared care orders and others that rendered the past caring for children relevant. These losses could be detrimental to mothers and children who have lived with domestic and family violence or abuse.

Single parenthood, the non-residential parent and co-parenting in Swedish daily news

ABSTRACT Since the 1960s, Swedish family policies have encouraged parents to share their parental obligations equally, and in the 1980s joint legal custody became standard after divorce or separation. Mothers as well as fathers are expected to financially provide for the family and to take part in the everyday care and fostering of the child. This study explores how single parenthood, non-residential parents and co-parenting play out and become conventionalized in daily news in this national context. The material consists of articles that mention single parenthood and “the other parent” from the four most widely read newspapers published in the period 2010–2019. The analytical focus has been on the written language and what is spelled out, alluded to or ignored, and dominant and less dominant representations. The results show that there are contrasting depictions of mothers and fathers. While the mother as a single parent, co-parent and non-residential parent overall is represented as good and attentive, the father is more of a split figure. He recurrently comes across as absent and negligent as the non-residential parent, but as committed and involved as the primary parent or co-parent with joint residential custody.

The experience of domestic violence survivors in the US family courts: gender bias in the court

There is a significant body of research on gender bias against women in the family courts. During the Covid-19 pandemic, battered women's vulnerability to domestic violence increased on a global level as women experienced a significant increase in the severity of abuse. The problems of gender bias and the treatment of battered women and their children have a long history of human rights' abuses. In particular, battered mothers have been the focus of gender-biased theories of parental alienation, used as a defence against claims of abuse and child maltreatment, despite a lack of empirical validity and acceptance. Additionally, the family courts in the United States are closed to the public and as a result there is a lack of transparency and accountability. A large-scale national study revealed that many supporting mental health professionals who provide custody evaluations lack a formal graduate education in domestic violence and child maltreatment. Furthermore, legislative presumptions that favour joint legal custody in custody decisions and requirements of co-parenting, fail to take into consideration the long-term public health risks of such chronic traumatic exposure. Finally, this article will address needed systemic reforms that include increased transparency, longterm court-monitoring, and supporting mental health professionals with formal graduate education in trauma, child development, and abuse, to promote resilience in vulnerable families.

Материнский гейткипинг в России: молодые отцы о матерях и барьерах доступности детей после развода

Статья посвящена исследованию практики гейткипинга — материнских барьеров доступности детей после развода — в восприятии разведенных молодых отцов. Гейткипинг понимается как динамичный и взаимный процесс выстраивания барьеров, установления контроля, выдвижения обвинений, препятствующих выработке общих правил взаимодействия и достижения сотрудничества родителей в интересах ребенка в процессе и после развода. Показано, что конструирование идентичности разведенных молодых отцов определяется влиянием специфического феномена «уязвленной маскулинности». Он фиксирует болезненные переживания травмы гегемонной маскулинности, кризиса мужской идентичности вследствие проигрыша в борьбе за властную позицию в семье, проявляется в переживании несостоятельности, в страхе показаться слабым и испытывающим душевную боль, а также в чувстве обиды или ожесточения, агрессии. Представлены результаты анализа интервью с 18 разведенными молодыми отцами и 5 специалистами по экспертизе семейных споров об определении места жительства ребенка и порядке встреч с отдельно проживающим родителем. На основе критериев целей и средств их реализации предлагается типология практик материнского гейткипинга. Сделан вывод, что в основе целей гейткипинга лежат стремление матерей к отчуждению отца от ребенка и «перезагрузке» жизни — своей и ребенка, дискредитация его в глазах детей, окружающих и в общественном мнении, месть, демонстрация доминирования матери, получение материальных благ. Анализируются различные практики контроля матерей над повседневными взаимодействиями отцов с детьми, стратегии ограничения и/или лишения отца родительских прав, финансового и алиментного контроля. Выделены четыре модели постразводного отцовства — «отца-жертвы», «отсутствующего отца», «борца за права», «вовлеченного отца». Предлагаются направления практической реализации результатов исследования — применение типологии практик гейткипинга в диагностике, экспертизе и социальной помощи разведенным родителям и их детям, развитие семейной медиации, внедрение технологий профилактики разводов, урегулирования семейных конфликтов, разработка программ по подготовке молодежи к семейной жизни и повышению культуры семейных отношений, совершенствование правовых механизмов реализации совместной опеки родителей над детьми на паритетной основе на всех этапах развода. Благодарность. Исследование выполнено при финансовой поддержке Российского фонда фундаментальных исследований в рамках научного проекта № 19-011-00543.

Effects of the Joint Custody Law in Italy

We study the effect of a 2006 reform to Italian family law that made joint custody the default for separating couples. The reform boosted joint legal custody by about 75 percentage points. Our research design uses difference‐in‐differences to estimate reform effects on the likelihood of a contested settlement, length of trial, and transfers between separating parents. The analysis is based on Italian individual‐level administrative data, which cover the entire population. The joint custody default appears to have increased dispute rates and length of trial markedly, without affecting transfers. There is no evidence that mothers buy custody rights back through reduced support. Our findings are consistent with the excessive discretion given to judges on some aspects of law implementation, which resulted in a partial application of the reform.

Loose Ties? Determinants of Father–Child Contact After Separation in Germany

ObjectiveThis article examines the determinants of father–child contact in Germany after divorce and separation, with a special emphasis on the role of legal child support.BackgroundThe contact separated fathers have with their children is a policy‐relevant issue that has been intensively addressed in previous research for the United States, the United Kingdom, and Canada. For continental Europe, there has been far less research on this topic. This article investigated how fathers' union status at childbirth, custody arrangements, and past and present partnership dynamics affect the level of contact they had with their first‐born child from a prior union.MethodData were used from Wave 2 (2009–2010) to Wave 8 (2015–2016) of the German Family Panel pairfam (www.pairfam.de). With a final sample size of 285 fathers, population average logistic models were estimated that examined nonresident fathers' probability of having frequent contact versus having little or no contact with their first‐born children.ResultsWhether a nonresident father shared legal custody with the mother was a decisive factor in whether he had regular contact with his minor child, particularly if he was not living with the mother of the child at the time of delivery. There were strong interaction effects between having joint legal custody and the time since the parental separation. Joint legal custody did not have an immediate impact on father–child contact around the time of separation, but as time elapsed, men without joint legal custody were more likely to lose contact with their children than men with joint legal custody.ConclusionJoint legal custody may provide an institutional arrangement for separated parents to exercise their responsibility for the well‐being of their children and thus be conducive to regular father–child contact.

On General and Specific Transfers for Child Support in Divorce

In a post-divorce equilibrium under joint legal custody of a child the paper compares the effect of two different transfer schemes, a general purpose transfer scheme and a specific purpose transfer scheme, from non-custodial parent to the custodial parent of the child on his/her welfare. Surprisingly, it finds that the marginal effects are neutral. The result contributes to the policy framework by suggesting that the lawyers/courts can choose the two alternatives equivalently in settling the child custody cases in a post-divorce situation. The paper also characterizes such transfer schemes and proves that the schemes can never restore the child’s welfare at the ‘happy marriage’ equilibrium level.

Does joint legal custody increase child support for nonmarital children?

Nonmarital children account for two fifths of births in the US, and close to two thirds of these children do not live with their fathers by age five. Although nonmarital children primarily live with their mothers, joint legal custody has emerged as an option for their parents. Parents with joint legal custody are expected to make major decisions for their child together, regardless of their prior marital status. This study investigates whether joint legal custody increases child support payments in the first year of a child support order among fathers of nonmarital children who live with their mothers, using a unique sample of court records in 2000–2009 in Wisconsin. It finds consistent and statistically significant positive associations across different methods; joint legal custody is associated with higher child support payments by about $170 a year and a higher compliance ratio by 5 percentage points. Paying child support is only one way nonresident parents can contribute to their children. Therefore, more studies are needed to understand whether and how joint legal custody affects other aspects of parenting and conditions under which it should be encouraged.

Does a nonresident parent have the right to make decisions for his nonmarital children?: Trends in legal custody among paternity cases

Using the Wisconsin Court Record Data, I show that among nonmarital cases joint legal custody increased from 2% in 1988–93 to 20% in the late 90s, jumping further in 2000 and staying relatively high at around 70% in the 2000s. I hypothesize that an increasing preference for joint legal custody, a policy change that made joint legal custody presumptive, a change in the demographic composition of never-married parents, or a combination of these influences explains this trend. Logit models and Blinder–Oaxaca decomposition analyses both suggest that the difference in joint legal custody is mostly explained by the process (the coefficients) rather than the changes in parental characteristics (the independent variables). The patterns of the data suggest that an increasing parental or societal preference for joint legal custody, encouraged by the policy change, is the primary drive for the recent rise in joint legal custody among nonmarital cases.

Joint Legal Custody Presumptions: A Troubling Legal Shortcut

This article examines the legal operation and impact of legal custody presumptions. We compare the nature of joint legal and joint physical custody and explore common misunderstandings about how presumptions work and their practical repercussions for children and parents. We conclude that legal custody presumptions are not suited to the task of promoting quality decision making and healthy parent–child relationships and they recommend alternative approaches. Key Points for the Family Court Community: The operation and impact of legal custody presumptions are often misunderstood by practitioners. The goal of quality decision making on behalf of children is more realistically achieved through other approaches.

Taking Custody of Motherhood: Fathers' Rights Activists and the Politics of Parenting

What makes a good in contemporary American society? And more important, can good fathers effectively mother their children? Without a doubt, over the past several decades, the cultural imagery surrounding what it means to be a fully participatory has shifted dramatically (Burgess 1997; Coltrane 1989; Hobson and Morgan 2002; Ranson 2001). Instead of the ideal being simply the breadwinner of the family, this father - with commentators primarily spotlighting the desired behavior of the white male - combines both earning a living with the day-to-day care of his children (Pleck 1987). In other words, not only does he work full time, but he also is present at his children's birth, goes to school conferences, does their laundry, and prepares their meals. He is fully connected and essential to his children's well-being (Farrell 2001). This father is, in fact, just like any other modern mother. While this recent paternal imagery has been extremely powerful, scholars have also noted that fathers' actions have yet to meet this emerging ideal.1 While their contributions to child care have been increasing over time, particularly since the 1980s, fathers still lag behind mothers in the amount of parental work they perform on a regular basis (Ahmeduzzaman and Roopnarine 1992;Aldous, Mulligan, and Bjarnason 1998; Sandberg and Hofferth 2001; Sayer, Bianchi, and Robinson 2004). In fact, in one of the most recent and comprehensive studies that explored this division of responsibility issue, in 2000, Bianchi, Robinson, and Milkie (2006, 116) found enormous gaps in paid and unpaid work between the sexes, with women allocating 12.9 hours a week to child care, and men only completing 6.5 hours on this task. Nevertheless, despite the fact that real world practices have yet to catch up to the new cultural ideal of fatherhood, fathers' rights groups have seized upon this compelling imagery in making their political claims. More specifically, these fathers' rights organizations, composed primarily of white, middle-class men, have grown in number in recent years in order to challenge the legal system that they must confront when their families dissolve. One of their most prominent assertions is that the family law system, specifically through its child custody procedures that tend to physically place children with their mothers, denies them the opportunity to effectively personify their father roles. In this essay I explore precisely how fathers' rights groups have tapped into the cultural symbolism of the father in order to buttress their claims. RESEARCH CONTEXT The fathers' rights movement began to grow quite rapidly in the United States during the 1980s. With some estimates placing them at ten thousand members in total (Crowley 2008, 37), fathers' rights activists across the board charge that once their families break up, they lack certain parental rights (Clatterbaugh 2000; Coltrane and Hickman 1992; Fineman 1991;Williams and Williams 1995). Their grievances revolve around two critical areas: child support and child custody policy (Crowley 2003). For fathers' rights groups, these two issues are highly interlinked. Activists complain that policy makers force them to pay exorbitant amounts of child support to the mothers of their children, who typically receive primary physical custody. However, these payments would not be necessary at all, argue these men, if the child custody system were reformed in a way to automatically give fathers equal time with their children. Across the United States, judges make custody determinations for dissolving families.There are two types of joint custody at stake Jomi legal custody refers to a partnership between parents over the major decisions that they must make regarding their children's weH-being; joint physical custody refers to equally shared living arrangements for the involved children. Although joint legal custody is fairly common in the United States, joint physical custody is not and therefore is the focus of fathers' rights groups' concerns. …

ANALYSIS OF MEDIATION AGREEMENTS OF FAMILIES REPORTING SPECIFIC TYPES OF INTIMATE PARTNER ABUSE

The purpose of this study was to carefully measure Intimate Partner Abuse (IPA) behaviors among a large (n = 864 couples) sample of pairs of husbands and wives who were mandated to attend divorce mediation and then to: categorize the behaviors into theoretically‐driven types of IPA, determine the number of cases screened out of mediation for any reason, and investigate whether measured outcomes of mediation (primary physical and legal custody) were related to IPA. Results indicated that rarely was IPA not reported—the most frequently reported IPA behavior was psychological abuse (98% of wives; 97% of husbands), followed by physical abuse (58% of wives; 54% of husbands), escalated physical abuse (62% of wives; 50% of husbands), and sexual intimidation, coercion and rape (56% of wives; 29% of husbands). Rarely were couples reporting IPA screened out of mediation (5%), and rarely were supervised parenting time or restrictions on contact between parents included in mediated agreements made by couples reporting IPA (6.5%). The overall level of IPA was unrelated to the specific terms of mediated agreements; however, by far the most frequent type of mediated agreement the couples' negotiated in mediation was for primary physical custody to go to the wife and for the husband and wife to have joint legal custody (59% of cases). Analysis of the implications of these findings and policy recommendations are included.

The Consequences of Child Support Policy for Family Financial Well-Being

The study examined the impact of child support policy on the financial well-being of one family experiencing divorce in Minnesota. Data were collected from a court record of a 1999 marital dissolution with joint legal and physical custody and a child support order that deviated from state guidelines. The analysis compared the needs-adjusted income the parties had while in the marriage with the needs-adjusted incomes provided by the actual child support order, and with hypothetical amounts consistent with the child support guidelines, and with the situation of sole physical custody. Financial well-being was measured using three types of ratios estimating income in relation to financial needs. Incomes were divided by (a) Federal Poverty Income Guidelines for 1999; (b) Economic Policy Institute's basic budget for Minneapolis-Saint Paul, Minnesota for 1999; and (c) USDA Parental Expenditures on Children for 1999. Results indicated that regardless of the needs standard used, the best financial outcomes were for the father's household. The deviations from the child support guidelines did not seem justified based on the financial calculations, and were not in the best interests of the children. Implications for educators were discussed.

“I only want trust”: norms, trust, and autonomy

Examines the way norms are created and treated in family law. Divorce results when one of the spouses feels that the other has violated trust norms internal to the couple. At the same time, the award of custody speaks to an external norm of societal trust of parenting. When one spouse becomes a noncustodial parent, he or she loses the autonomy and other social supports given to a custodial parent or parents. Empirically, the paper shows the relationship between violation of internal trust norms and divorce, and between the loss of custodial status and depression. The paper also tests whether the common practice of awarding joint legal custody assuages the situation, and concludes that it does not.

Child Support Enforcement, Joint Legal Custody, and Parental Involvement

This article uses the 1992–98 waves of the Current Population Survey‐Child Support Supplement to examine whether state child support enforcement affects the likelihood of divorced parents choosing joint legal custody and whether such custody increases the involvement of nonresident parents. This involvement is measured by child support payment and visitation. We find that effective child support enforcement increases the probability of joint legal custody. Joint legal custody also increases the involvement of nonresident parents in their children’s lives, although these effects diminish over time.

DIVORCED PARENTS' FINANCIAL SUPPORT OF THEIR CHILDREN'S COLLEGE EXPENSES

Reliable, quantitative, and current information is needed to inform the policy debate about whether parents, most commonly noncustodial parents, should be compelled to provide support for their children's higher education. We report data from a large study of the financial support college students reported receiving from their divorced mothers and fathers in a state where such payment is completely voluntary. Mothers' and fathers' financial resources did not differ greatly; when these were statistically controlled for, mothers and fathers contributed remarkably similar amounts of college support. Among other findings, fathers contributed more proportionately than mothers in families that had joint legal custody but less in sole maternal custody families. Our findings suggest policies that will likely encourage more voluntary support for higher education from divorced families.

The Impact of a Presumption for Joint Legal Custody on Father Involvement

Several states have laws that declare a presumption for joint legal custody for divorced families. Although some presumption laws have existed for over two decades, their effects remain unexamined. This study assessed the impact of a presumption law on father involvement by examining days and nights of contact between father and child per month, father attendance at children's activities, father participation in decision-making and payment of child support orders. The results indicate that a presumption law does not currently result in more father involvement; however, the author recommends the application of more well controlled studies before making recommendations to professionals in the field.

Child adjustment in joint-custody versus sole-custody arrangements: A meta-analytic review.

The author meta-analyzed studies comparing child adjustment in joint physical or joint legal custody with sole-custody settings, including comparisons with paternal custody and intact families where possible. Children in joint physical or legal custody were better adjusted than children in sole-custody settings, but no different from those in intact families. More positive adjustment of joint-custody children held for separate comparisons of general adjustment, family relationships, self-esteem, emotional and behavioral adjustment, and divorce-specific adjustment. Joint-custody parents reported less current and past conflict than did sole-custody parents, but this did not explain the better adjustment of joint-custody children. The results are consistent with the hypothesis that joint custody can be advantageous for children in some cases, possibly by facilitating ongoing positive involvement with both parents. Research evidence has clearly demonstrated that, on average, children from divorced families are not as well adjusted as those in intact families, although this relative disadvantage does not necessarily imply clinical levels of maladjustment (Amato & Keith, 1991b; Guidubaldi & Perry, 1985). Joint custody, an arrangement that involves shared legal and/or physical custody of children following divorce of their parents, has increased in popularity as an option in divorce since the 1970s, with many states now having either a preference or presumption for joint legal custody (Bender, 1994). An ongoing debate between proponents and opponents of joint custody has continued since the 1970s as well, with different researchers and authors expressing both strong opposition (e.g., Goldstein, Freud, & Solnit, 1973; Kuehl, 1989) and strong support (e.g., Bender, 1994; Roman & Haddad, 1978). Arguments in favor of joint custody have often focused on benefits for the child of maintaining relationships with both parents. In contrast, opponents have argued that joint custody disrupts needed stability in a child’s life and can lead to harm by exposing children to ongoing parental conflict. A variety of theoretical perspectives have been proposed to explain the links between divorce and child adjustment (Hetherington, Bridges, & Insabella, 1998): individual characteristics of the child that might increase vulnerability to maladjustment; the change in family composition and the possible negative effects of father absence in the typical maternal custody situation; the increased economic stress and problems in shifting from a two-parent to a one-parent household; effects of parental distress on the child; and changes in family processes such as conflict and expression of emotion. Buchanan, Maccoby, and Dornbusch (1996) classified factors affecting children’s postdivorce adjustment into three categories: loss of a parent, interparental conflict, and diminished parenting (in which the quality of parenting from the custodial parent deteriorates, typically during the first 2 years after divorce). In an analysis of several large-scale national samples, McLanahan (1999) found that father absence due to divorce is associated with less school achievement for both boys and girls, more labor market detachment (i.e., unemployment) for boys, and early childbearing for girls. The impact of father absence seemed to be mediated by several variables, including loss of pa

Child adjustment in joint-custody versus sole-custody arrangements: a meta-analytic review.

The author meta-analyzed studies comparing child adjustment in joint physical or joint legal custody with sole-custody settings, including comparisons with paternal custody and intact families where possible. Children in joint physical or legal custody were better adjusted than children in sole-custody settings, but no different from those in intact families. More positive adjustment of joint-custody children held for separate comparisons of general adjustment, family relationships, self-esteem, emotional and behavioral adjustment, and divorce-specific adjustment. Joint-custody parents reported less current and past conflict than did sole-custody parents, but this did not explain the better adjustment of joint-custody children. The results are consistent with the hypothesis that joint custody can be advantageous for children in some cases, possibly by facilitating ongoing positive involvement with both parents.

'I Only Want Trust': Norms, Trust and Autonomy

'I Only Want Trust': Norms, Trust and Autonomy