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Moral Intuitions About Fault, Parenting, and Child Custody after Divorce

35 Pages Posted: 3 Nov 2013  

Ashley M Votruba

University of Nebraska-Lincoln

Sanford L. Braver

Arizona State University (ASU) - Department of Psychology

Ira Mark Ellman

Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley

William V. Fabricius

Arizona State University (ASU) - Department of Psychology

Date Written: October 31, 2013

Abstract

Allocations of child custody post-divorce are currently determined according to the Best Interest Standard, i.e. on what is best for the child, as compared to standards of the recent past which weighed fairness to the parents or parental fault (or marital misconduct). Since any such evolving standards rest so fully on changing cultural norms, an important question is how these standards correspond to the moral intuitions of lay citizens asked to take the role of judge in hypothetical cases. Do factors such as whether one parent had an extramarital affair influence their custody decision-making? In the current studies, a representative sample of citizens awaiting jury service were first given a neutral scenario portraying an “average” family. Almost 80% favored dividing custodial time equally between the two parents, replicating our earlier finding. Then, in Study 1, they were given a second, Test case, vignette in which either the mother or the father was said to have carried on an extramarital affair that “essentially ruined the marriage”. In Study 2, either the mother or the father was said to have sought the divorce, opposed by the other, simply because he or she “grew tired” of the marriage. For both Test cases, more than half the respondents made little or no adjustment to their parenting time allocation, but a substantial minority did, awarding the offending parent significantly less parenting time. While one might guess some respondents would be motivated to punish the adulterous parent, we believe it less likely they would believe it appropriate to punish a spouse who sought to end marriages they no longer found satisfying. Given that there was relatively little difference in our respondents' reactions to the two test cases, we therefore considered explanations, for the responses of those who did reduce parenting time, that could apply equally to both test cases. We suggest two possibilities: 1) they find the behavior in both test cases evidence that the offending parents' commitment to parenting is deficient, since they were willing to risk imposing divorce on their children by their behavior, or 2) a spouse who imposes the burden of parental separation on the children by causing divorce should be penalized, not for the offensiveness of their conduct, but for the harm they caused their children by bringing about the divorce.

Keywords: Divorce; Child Custody; No Fault; Moral Intuition; Parenting

Suggested Citation

Votruba, Ashley M and Braver, Sanford L. and Ellman, Ira Mark and Fabricius, William V., Moral Intuitions About Fault, Parenting, and Child Custody after Divorce (October 31, 2013). Available at SSRN: https://ssrn.com/abstract=2348482 or http://dx.doi.org/10.2139/ssrn.2348482

Ashley M Votruba (Contact Author)

University of Nebraska-Lincoln ( email )

Lincoln, NE 68588
United States

Sanford L. Braver

Arizona State University (ASU) - Department of Psychology ( email )

950 S. McAllister Ave
P. O. Box 871104
Tempe, AZ 85287-1104
United States

Ira Mark Ellman

Arizona State University College of Law ( email )

Box 877906
Phoenix, AZ
United States
480-965-2125 (Phone)

HOME PAGE: http://www.law.asu.edu/HomePages/Ellman/

Arizona State University (ASU) - Department of Psychology ( email )

950 S. McAllister Ave
P. O. Box 871104
Tempe, AZ 85287-1104
United States

Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley ( email )

Berkeley, CA 94720-2150
United States

William V. Fabricius

Arizona State University (ASU) - Department of Psychology ( email )

950 S. McAllister Ave
P. O. Box 871104
Tempe, AZ 85287-1104
United States

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