Lay Judgments About Child Custody After Divorce

Abstract

In a pair of studies, we examine lay people’s judgments about how hypothetical cases involving child custody after divorce should be resolved. The respondents were citizens called to jury service in Pima County, AZ. Study 1 found that both male and female respondents, if they were the judge, would most commonly award equally shared custody arrangements, as advocated by most fathers’ groups. However, if the pre-divorce child care had been divided disproportionately between the parents, this preference shifted, slightly but significantly, toward giving more time to the parent who had provided most of that care, consistent with the Approximation Rule advocated by the American Law Institute. Moreover, respondents judged that the arrangements prevailing in today’s court and legal environment would award equal custody considerably less often, and would thereby provide much less parenting time to fathers, than the respondents themselves would award. Study 2 found that respondents maintained their strong preference for equally shared custody even when there are very high levels of parental conflict for which the parents were equally to blame, but awarded substantially less time to the culpable parent when only one was the primary instigator of the parental conflict. The striking degree to which the public favors equal custody combined with their view that the current court system under-awards parenting time to fathers could account for past findings that the system is seriously slanted toward mothers, and suggests that family law may have a public relations problem.

Keywords: public opinion, child custody, family law, joint custody, approximation rule