Shared Custody Laws Are Changing Divorce Forever

Moving from favoring mothers to promoting gender equality, new custody laws are transforming divorce

Our society today is legally and normatively gender egalitarian. Women are empowered to pursue high-powered careers or anything else in life. Men are expected to help out with the housework and child-rearing. Now, many men don’t do that, but there’s an expectation that they should.

It was second wave feminism that brought about this revolution. But it also laid the groundwork for cultural changes that some feminists don’t like, such as in the area of divorce law.

Traditionally, divorce courts were very favorable to women. In the event of divorce, sole custody almost always went to the mother, with fathers relegated to limited visitation and hit with child support obligations. The “deadbeat dad” who failed to pay up was the target of even conservative ire. Women could even get alimony, which is financial support intended for the ex-wife herself, not the children. The logic here was that since women didn’t have careers, they couldn’t support themselves and so needed to continue to be provided for by their ex-husbands.

Men basically didn’t stand much of a chance in divorce court in this regime. The father’s rights movement publicized a litany of horrors such as men forced to pay child support for kids that were genetically proven not to be theirs, fathers being forced to pay for graduate school for kids who are well into adulthood, fathers denied access to their children at all, poor black men jailed for being too broke to pay child support, and men who can never retire because they are forced to pay lifetime alimony to their ex-wife (who may actually be shacked up with another guy).

But in this egalitarian world, where women have careers and men are spending more time with the kids, this old regime became increasingly unsustainable.

The most logical and fair divorce system in this egalitarian world would have a strong presumption of joint equal-time custody with no child support payments.

The divorce regime in general has been trending this direction, and some states have actually begun to enshrine this system in law. One of them is Kentucky, whose system was the subject of a lengthy article in the Wall Street Journal.

It was 2017, and across Kentucky, divorced fathers were coming together against a common enemy: a custody system they felt favored their ex-wives.

Although custody laws in Kentucky and elsewhere granted judges discretion to decide what split was in a child’s best interest, aggrieved fathers claimed that this typically meant relegating them to the role of every-other-weekend “Disneyland dads,” forced to cram two days of fun into what mothers had two weeks to create.

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Around the country, the fathers’ rights movement was gaining momentum. Dividing time and decision-making equally between parents, advocates argued, reduced children’s feelings of abandonment, promoted gender equality and lowered tensions between feuding couples.

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In 2018, Kentucky became the first state to pass a law making equally shared custody the default arrangement in divorces and separations. Four other states—Arkansas, West Virginia, Florida and Missouri—have since passed their own versions of Kentucky’s custody bill. Around 20 more are considering or close to passing similar laws, according to an analysis by the National Parents Organization.

The article notes that one effect of this law was a steep decline in the number of divorces in Kentucky.

The law has become a model for other states, not least because Kentucky’s divorce rate has plummeted. Between 2016 and 2023 it fell 25%, compared with a nationwide decline of 18%, according to an analysis by the National Center for Family & Marriage Research at Bowling Green State University.

I don’t know that we have enough evidence to say that this law is what produced these outsized declines in the divorce rate. Divorce is very complex. People who are getting divorced tend to be extremely emotional and often irrational.

But I think there are reasons to believe this would discourage divorce in some cases. It’s extremely well-established that women initiate the vast majority of divorces - about 70% of them. But I’ve never really seen completely compelling findings on the reasons why they are filing for divorce.

But there is some evidence that custody laws do influence this. There’s an oft-cited study by Brinig and Allen called, “These boots are made for walking': why most divorce filers are women.” The authors note the many financial and power benefits to women under the traditional divorce regime:

Divorce, despite its many shortcomings, allows the woman to exercise control over household spending when she is awarded custody. If the court names her primary custodian, she makes most, if not all, of the major decisions regarding the child. As custodial parent, she will be able to spend the money the husband pays in child support exactly as she pleases—something she may not do during marriage. Finally, although the court will usually have ordered visitation, she can exert some control over her former husband by regulating many, although not all, aspects of the time he spends with the child.

After doing a lot of quantitative analysis, the authors conclude:

Our results are consistent with our hypothesis that filing behavior is driven by self-interest at the time of divorce. Individuals file for divorce when there are marital assets that may be appropriated through divorce, as in the case of leaving when they have received the benefit of educational investments such as advanced degrees. However, individuals may also file when they are being exploited within the marriage, as when the other party commits a major violation of the marriage contract, such as cruelty. Interestingly, though, cruelty amounts to only 6% of all divorce filings in Virginia. We have found that who gets the children is by far the most important component in deciding who files for divorce, particularly when there is little quarrel about property, as when the separation is long. [emphasis added]

This would be consistent with an interesting study I saw some years ago out of Stanford which found that although women are more likely to initiate divorce, men and women are equally likely to initiate breakups in non-marital relationships.

The Brinig and Allen study suggests that a presumption of equal custody might reduce divorce rates.

If it is custody outcomes that most influence divorce filings, changes in custody rules (or their likely outcomes) rather than in divorce grounds should most shape the patterns of both marriage and divorce. In particular, this could take the form of a presumption of joint custody or a rule that made post-divorce patterns mirror preseparation time shares as closely as possible, with sole custody only in cases where one party can show the other parent unfit. An appropriate custody rule mitigates the incentive for one-party filing for the purpose of gaining unilateral control over the children and, to the extent both parents remain involved through visitation or child support, the other spouse.

Again, we can’t draw too many conclusions from just one or a couple of studies out of the vast literature out there. But it’s intuitive from an economics perspective that a presumption of joint custody would significantly change the incentive structures around divorce.

However, this might not always lead to fewer divorces. Among upper middle class families, joint custody divorces might actually incentivize divorce in some cases.

It’s no secret that having kids dramatically constrains your lifestyle, particularly when the kids are younger. A joint custody divorce in which the father and mother alternate weeks with the kids allows them to have “the best of both worlds.” They can still be very involved in their children’s lives and be in parent mode on the weeks they have children, but they can live the single life of fun with friends, concerts, etc. on the other weeks. This might be more appealing to a would-be wife than a situation where she more or less has to have the child full time.

So I think the dynamics might be more complex than we expect here.

Still, these arrangements are undoubtedly more beneficial to fathers than the previous regime. Naturally many feminist advocates hate it. There’s basically no compelling moral or fairness argument against it within the framework of our contemporary egalitarian culture, so they have to raise the specter of abuse. Back to the Journal article:

Some people are staying married to abusive partners, critics of the law say, because they are terrified of leaving their children alone with a parent with a history of violence. “They know their kids are safer if they stay,” said Elizabeth Martin, chief executive of the Louisville-based Center for Women and Family, which provides services to victims of domestic violence (most but not all of whom are women). “Even if it means taking some beatings.”

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“We have seen this law put kids in harm’s way,” said Darlene Thomas, who runs GreenHouse17, one of the state’s largest domestic violence programs. She explains that judges are wary of trampling on parents’ rights, which places a hefty burden on any who hope to prove that a fellow parent is abusive or that splitting custody evenly is not in the best interest of the children. “It makes it harder for judges to consider the whole picture.”

The article goes on to say that the presumption of joint custody automatically does not apply if one spouse is subject to a protection order. A female family court judge defends the law and how it works in practice:

Mica Wood Pence, a family court judge in Kentucky whose office is full of stuffed animals for children to take home, spends hours on the phone discussing the law with judges in other states. She reassures them that a 50-50 custody standard won’t limit their ability to rule as they see fit in individual cases. The law is meant to be a helpful starting point, Pence tells them, not an order to be followed blindly.

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“There are always going to be concerns,” said Pence. “The way to counter concerns is not to make bad laws for everyone else. You can’t set up laws for all families that are based upon the worst circumstances.”

What the article does not state is that it’s well established that one of the leading threats to children is mom’s new boyfriend. As sociologist Brad Wilcox writes:

This new federal study indicates that these cases are simply the tip of the abuse iceberg in American life. According to the report, children living with their mother and her boyfriend are about 11 times more likely to be sexually, physically, or emotionally abused than children living with their married biological parents. Likewise, children living with their mother and her boyfriend are six times more likely to be physically, emotionally, or educationally neglected than children living with their married biological parents. In other words, one of the most dangerous places for a child in America to find himself in is a home that includes an unrelated male boyfriend—especially when that boyfriend is left to care for a child by himself.

Also, many mothers themselves have a variety of their own problems that endanger their children, such as substance abuse. But I doubt these advocates want mothers with a drug problem to automatically get stripped of custody of their children.

In short, the danger to children from being with a particular divorced parent includes being with their mother as well as their father.

There are powerful lobbies pushing against changes to family law, but inexorably there have been changes towards a fairer regime. After several attempts, Florida was finally able to eliminate lifetime alimony, for example.

A presumption of equal time joint custody is the obviously fair approach in cases of divorce. This is a powerful reason why the world has been moving in this direction.

Unfortunately, the Wall Street Journal’s gift link system is stingier than the NYT’s, so I can’t create a link that you can read, but you can try clicking over to read the whole thing. It’s great.

Cover image credit: Jennifer Pahlka/Wikimedia, CC BY-SA 2.0