Mothers still get more nights with their kids, but courts now encourage shared parenting
By Aaron Stern Apr 03 2019
For most of the 20th century, dads who wanted to share custody of their children after
a divorce were out of luck. Courts sided almost universally with the mothers, awarding
them full custody. That’s not the case today. In the last 30 years, courts have increasingly
encouraged — and even pushed — for mutual agreements of shared parental custody.
There are two types of child custody. There’s legal custody, which is control over
decisions around a child’s wellbeing, such as education, religion and health care,
and there’s physical or residential custody, which is principally defined by where
the child sleeps at night. Divorce laws vary by state, but generally, Kelly says,
courts today start with a presumption of joint legal custody, and are open to and
encouraging of shared residential custody. Equal splits of residential custody are
uncommon for logistical reasons, since shuttling a child back and forth on school
nights is hard for working parents, and, per Kelly, residential custody does still
split in favor of the mother.
Still, there has been a marked shift since the 1980s in a father’s access to his children
after, or in lieu of, marriage. According to a 2014 study by researchers at the University
of Wisconsin-Madison found in a review of Wisconsin divorce records that mothers were
granted sole custody 80 percent of the time in 1980; by 2008, that rate had dropped
to 42 percent. Meanwhile, equally shared custody in which the children spent an equal
number of nights with both parents increased from five to 27 percent, and unequal
shared custody rose from three to 18 percent.
That 80 percent rate of sole custody granted to mothers in 1980 was likely even higher
a decade before. Child custody for much of the 20th century defaulted to the mother:
Courts preferred having a single party responsible for the children, and they reflected
the prevailing attitude of the day that children — and especially young children —
were better cared for by their mothers.
Per June Carbone, a professor at the University of Minnesota Law School who specializes
in family law, changes in general notions about a father’s role in parenting, as well
as laxer attitudes toward divorce, itself, led to increases in both the rate of divorce
and the rates at which courts granted shared custody, beginning in the 1970s and accelerating
in the 1980s.
“This spike [in the divorce rate] followed the liberalization of the divorce laws,
and they partly reflected the drop of the age in marriage and the increase in the
number of brides pregnant at the altar that occurred in the ‘50s and ‘60s,” says Carbone.
Those pregnant brides were a result of the baby boom generation, which began getting
married earlier — and regretting it, Carbone says. Meanwhile, states were realizing
the untenability of at-fault divorce laws in which grievous wrongdoing had to be proven,
and such restrictions were often coupled with a so-called ‘clean-hands doctrine’ in
which the complaining party could not be found to have contributed to the marital
Meanwhile, Carbone says, the Catholic church was losing its grip on politicians, who
were becoming increasingly secular. As a result, in the 1960s and 1970s, states began
to adopt no-fault divorce laws, making it sufficient for one party in a marriage to
file for divorce because they were irreparably unhappy in that marriage. And since
women initiate around two thirds of divorces, that, per Carbone, led to a lot of unhappy
husbands wanting to secure time with their children.
“If what happens is the woman gets the kids in a divorce the man didn’t want, he feels
utterly betrayed. And it’s those cases that were the push for a lot of the change
in custody,” she says.
Other things were changing, too: During the same time, women joined the workforce
at greater rates, childcare was becoming more widely available, and feminist ideologies
were encouraging women to take advantage of each, and to include the divorced fathers
of their children in child-rearing.
“As that happened, and divorce became normalized, the idea of joint custody became
popular,” says Carbone.
Of course, divorced dads aren’t the only ones seeking shared custody of their kids:
Half of American adults are unmarried, down from 72 percent in 1972, and 40 percent
of childbirths in the U.S. today occur out of wedlock. Meanwhile, more than a quarter
of children in the U.S. now live apart from their fathers. Those splits vary significantly
across boundaries of race, educational levels, and economic status, and Kelly says
such data suggests that fathers who were in a marriage, have greater income and assets
and were involved in their kids’ lives are more likely to seek and obtain custody
of their children.
Still, courts’ attitudes toward parental rights in custody cases involving parents
who were never married are generally the same as they are in cases of divorce, he
says, and unmarried dads with less economic clout fare much better today in seeking
custody than in the past.
Perhaps the biggest sign of progress is that the majority of custody arrangements
are resolved without a trial, as courts increasingly push parents toward pre-trial
mediations, Kelly says. This results in more amicable agreements, smaller backlogs
of cases in the family court systems, and fewer Kramer vs. Kramer courtroom fireworks.
“It’s changed over the years,” Kelly says. “Family law is very dynamic, it responds
to things in society.”