DADI.org

September 5, 2000

Making divorce law family friendly

Jed H. Abraham

     Gov. George W. Bush and Vice President Al Gore are family men, and, as presidential candidates, they have expressed strong support for the two-parent, intact family.
     Unfortunately, as noted by President Clinton in his final State of the Union Message, they confront an electorate in which 1 in 3 children grow up without a father at home and single-parent children are 5 times likelier to live in poverty than are children with both parents at home. Many of these impoverished children are the product of divorce — which today consumes nearly every other marriage.
     Neither the president nor the candidates may fully appreciate that this calamity is a direct consequence of the law.
     When parents divorce, they must go to the legal system to undo their marriage. Commonly, the law will award sole custody of the children to one parent, traditionally the mother, and then order the other parent to pay child support, a property settlement and possibly alimony. The law is pledged to give the children the same economic status they would have enjoyed had the marriage not been dissolved.
     These legal outcomes are the nub of the problem: The parent who emerges from divorce as the sole custodial parent is assured of an ongoing claim to the other parent's income without having to make the difficult compromises that every marriage demands. The non-custodial parent, by contrast, emerges primarily with losses —loss of children, loss of assets, loss of discretionary income — all the while having to carry the additional costs of his or her new, post-divorce household.
     Many non-custodial parents cannot afford their court-ordered support obligations, and some see no alternative but to flee the system. Even when they do stay and pay, they are often precluded by the courts from adequate access to their children — who then grow up with the kinds of social and psychological problems that children from intact families rarely exhibit.
     To remedy this destructive process, some 45 states have enacted joint custody laws under which the children spend a significant percentage of their time with each parent. Most states allow the court to award joint custody as a discretionary option. But judges are often reluctant to do so. They believe the value of joint custody has not been sufficiently demonstrated and they are concerned that joint custody will result in less support for children.
     Recently, surprising support for joint custody has emerged from divorce research. In separate studies, researchers have found that states with strong joint custody laws show both a substantial increase in child support compliance and a significant decline in their divorce rates. In other words, joint custody produces not only more stable support for children after divorce; it also lowers divorce rates by making divorce — and therefore child poverty and psychopathology — less likely in the first place.
     The researchers have advanced several reasons for these seemingly paradoxical results. A parent without joint custody cannot easily see whether the parent with custody is properly spending support payments on the children. With joint custody, however, spending on the children can be readily monitored by the paying parent, and his or her concern about possible misappropriation of support payments by the other parent is thereby substantially reduced.
     Even more intriguing are the reasons for joint custody's moderating effect on the divorce rate. Because joint custody guarantees both parents a full parental role after divorce, a father can permit himself, during marriage, to bond closely to his children without fear of a complete break in the event of divorce. With these increased emotional ties, the father correspondingly increases his investment in marriage and is less likely to start a divorce. Although joint custody guarantees the father close ties even after divorce, it does not compare in stability, intensity and integrity to the fathering opportunities available to him in marriage; joint custody is just the father's insurance policy.
     Similarly, when joint custody is a serious alternative to sole custody, a mother's expectations of post-divorce custody are considerably lowered. Under those conditions, divorce becomes a less attractive alternative, and a lower divorce rate is the result.
     The implications of these findings are profound, and the presidential candidates should take heed. Child poverty, the runaway divorce rate and all the pathologies associated with them can be significantly reduced — at absolutely no charge to taxpayers — by encouraging a national commitment to joint custody. The next president should make this commitment a cornerstone of his first State of the Union Message.
     

Jed H. Abraham is a lawyer and the author of "From Courtship to Courtroom: What Divorce Law Is Doing to Marriage . . ." Bloch Publishing Co., January 2000. © Jed. H. Abraham, 2000.

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