Citation
The legal divorce process

Material Information

Title:
The legal divorce process an emphasis on the experience of divorcing fathers
Portion of title:
Emphasis on the experience of divorcing fathers
Creator:
Retallack, Craig
Publication Date:
Language:
English
Physical Description:
xii, 146 leaves : illustrations ; 29 cm

Thesis/Dissertation Information

Degree:
Master's ( Master of Arts)
Degree Grantor:
University of Colorado Denver
Degree Divisions:
Department of Sociology, CU Denver
Degree Disciplines:
Sociology

Subjects

Subjects / Keywords:
Custody of children -- United States ( lcsh )
Divorced fathers -- Legal status, laws, etc -- United States ( lcsh )
Custody of children ( fast )
Divorced fathers -- Legal status, laws, etc ( fast )
United States ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 134-146).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Sociology.
General Note:
Department of Sociology
Statement of Responsibility:
by Craig Retallack.

Record Information

Source Institution:
University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
37832136 ( OCLC )
ocm37832136
Classification:
LD1190.L66 1997m .R48 ( lcc )

Full Text
The Legal Divorce Process: An Emphasis On The Experience of
Divorcing Fathers
by
Craig Retallack
B.A., Metropolitan State College, 1994
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Sociology
1997


1997 by Craig Retallack
All Rights Reserved


This thesis for the Master of Arts
degree by
Craig Retallack
has been approved
A. Leigh Ingram
51111117
Date


Retallack, Craig (M.A. Sociology)
The Legal Divorce Process: An Emphasis On The Experience of
Divorcing Fathers
Thesis directed by Assistant Professor Candan Duran-Aydintug
ABSTRACT
After a long period of neglect, fatherhood has begun to attract
the attention of social scientists. Many fathers perceive that the
system of family law discriminates against them. However, the legal
involvement of fathers in the divorce process, and the effects of
lawyers on custody requests and decrees has remained relatively
unreported.
This study investigates the behavior of divorcing parents, with
an emphasis on fathers concerning custody/visitation issues,
knowledge of their legal rights, the role of lawyers in custody
requests, court decrees, and a possible court bias against fathers.
The sample in this research comes from the Stanford Child Custody
Project, a three wave longitudinal survey of a cohort of families that
petitioned for divorce at approximately the same time. Two samples
were taken from the original data collected by the Stanford Child
Custody Project. The first sample (study sample) consisted of 525
families that participated in all three interviews with the Stanford Child
Custody Project. Also, in this sample both parents had to participate
in the interview process. A sub-sample was taken from this sample
that included only those fathers that were awarded sole legal, sole
iv


physical and joint physical custody. Within each sample, descriptive
analysis are provided as well as comparisons between the samples.
In this research, a majority of the fathers described themselves
as first wanting out of the marriage. However, in general, it was the
mothers who were more likely to petition for divorce. The majority of
the divorce cases in this study were settled outside the courtroom,
with only 1.7% of the cases decided by a judge. In almost half of the
divorce cases both parents were represented by lawyers. If only one
parent was represented by a lawyer it was more likely to be the
mother than the father. Mothers were more likely to perceive their
lawyer as very helpful in settling the terms of the divorce, with fathers
more likely to perceive their lawyer as not at all helpful. Within this
sample, the presence of lawyers led to an increase in joint legal
custody decrees.
This abstract accurately represents the content of the candidates
thesis. I recommend its publication.
v


DEDICATION
I would like to dedicate this thesis to several people, first my son
Brandon whom I love dearly. I look forward to many years of fishing,
camping and Rockies games with you Brandon. Being a single
father with residential custody has encouraged me to do this
research. To my mother who has always been there with
encouragement and support, through the good and the bad and to my
father, I wish you were here to see what Ive accomplished in life and
as a person.


ACKNOWLEDGMENT
I would like to thank Dr. Duran-Aydintug for everything she has done
to make my experience in the Masters program a successful one.
She has encouraged me to become active in the Students of
Sociology Club, co-authored a paper for presentation at the 1997
Pacific Sociological Association Conference, and has an amazing
ability to bring out the best in me, both intellectually and
academically. I would also like to thank Dr. Duran-Aydintug for her
editing and suggestions for improving the quality of this thesis.
Without her willingness to work with me, I feel my experience in this
program would have been much less meaningful.


CONTENTS
Figures..........................................xi
Tables...........................................xii
CHAPTER
1. INTRODUCTION...............................1
Purpose of the Study.................3
2. REVIEW OF THE LITERATURE...................9
History of the American Family............18
History of Custody Law..............21
Custody Definitions.................25
Custody Types.......................26
Current Trends in Divorce Law.......29
Mediation...........................33
Theoretical Perspectives of Fatherhood...43
Fathers and Sole Custody............59
3. METHODS...................................67
Sample and Procedure................67
Sample Characteristics..............71
viii


4. RESULTS: Study Sample.........................75
Legal Issues...........................81
Lawyers and Custody Issues.............83
Mediation..............................94
Results: Subsample: Fathers with Sole
Legal, Sole Physical, and Joint Physical
Custody..........................95
Mediation.............................101
Hostility in the Study Sample and in the
Subsample.............................102
5. DISCUSSION...................................105
Future Research.......................117
Limitations...........................118
APPENDIX
A. Colorado Revised Statutes: Uniform Child
Custody Jurisdiction Act.....................121
B. Colorado Revised Statutes: The Best Interests
of the Child Doctrine........................123
C. Colorado Revised Statutes: Joint Custody..127
D. Characteristics of Child Custody Law in the
ix


United States......................130
REFERENCES....................................134
x


FIGURES
Figures
4.1. Presence of Lawyers and Legal Custody Decrees.....87
4.2. Presence of Lawyers and Physical Custody Decrees..88
4.3. Presence of Lawyers and Legal Custody Requests....89
4.4 Presence of Lawyers and Physical Custody Requests...90
XI


TABLES
Tables
2.1. Divorces Per One-Thousand Married Females For
Major Industrialized Countries.....................16
4.1. Requested and Decreed Custody (Court Records) in
Valid Percentages..................................76
4.2. Parent Mean Involvement With Children Before and
Since Separation...................................78
4.3. Help From Lawyers In Custody.......................84
4.4. Fathers Desires and Requests With Court Decree I
in Valid Percentages...............................98
xii


CHAPTER 1
INTRODUCTION
Fatherhood has a very long history but virtually no historians.
Family historians and feminist scholars have written much about
patriarchy while largely ignoring the role of the patriarch
(Furstenberg, 1988; Demos, 1986; Bloom-Feshbach, 1981). After a
long period of neglect, fatherhood has begun to attract the attention of
social scientists. This new area of study mainly focuses on child-
support, father-child contact and fathers involvement (especially in
the post-divorce family), and the childs well-being issues depending
on the fathers presence (Baydar and Brooks-Gunn, 1994; Knox and
Bane, 1994; Weiss and Willis, 1985). Even though for the past
several decades there has been a substantial increase in families
headed by single fathers, very little research is available to describe
systematically the characteristics of these families and to identify the
forces accounting for their increase (Eggebeen, Snyder, and
Manning, 1996; Meyer and Garasky, 1996; Mclanahan and Casper,
1995). Another issue that has been ignored is the experiences of
1


fathers in the courtroom, their involvement with the legal system of
divorce, and their legal knowledge of the divorce process.
Since the 1970s significant changes have occurred within the
legal system of divorce. While No-Fault legislation has simplified the
divorce process and in doing so made divorce a less acrimonious and
adversarial process for the parties involved, the amount of conflict is
still related to the number of issues to be resolved and the couples
ability to compromise (Dixon and Weitzman, 1980). Even though No-
Fault divorce is easiest if there are no minor children, no requests for
spouse and/or child support, and no disagreements over the
distribution of marital property, research has shown that both informal
negotiations and court hearings still remain fairly adversarial
(Buehler, 1995; Erlanger, 1987; Glass, 1984). As a matter of fact,
instead of experiencing equality in all aspects of the divorce process,
there is a perception among divorcing fathers that the system of law
discriminates against them (Grief, 1995).
2


Purpose of the Study
As mentioned previously in the review of the literature, significant
changes have occurred in both divorce law (No-Fault divorce
legislation) and custody laws (Best Interests of the Child and a shift
towards joint custody) (see Appendix B, Colorado Revised Statutes:
Best Interests of the Child Doctrine; see Appendix C, Colorado
Revised Statutes: Joint Custody). Additionally, the Uniform Child
Custody Jurisdiction Act was enacted in an attempt to unify the
custody laws in the United States (see Appendix A, Colorado Revised
Statutes: Uniform Child Custody Jurisdiction Act; see Appendix D,
Characteristics of Custody Law in the United States). These changes
were designed to create equality for the parents during the legal
aspects of divorce, and to allow children the opportunity to be
involved with both parents post-divorce. However, in practice these
changes have not proven to be satisfactory for divorcing parents.
This is particularly true for fathers in the areas of child custody and
visitation arrangements.
There is not only a lack of research concerning fathers with
custody of their children (Meyer, & Garasky, 1993; Grief, 1995;
Cohen, 1995; Hoffman, 1995). but also in investigating the role or
3


influence of lawyers and/or mediators for both of the parents
(Maccoby and Mnookin, 1992; Mnookin, Maccoby, Albison, & Depner,
1990; Price and McKenry, 1988).
The purpose of this research is to fill the gaps in these areas
by not only investigating fathers with sole legal, sole physical, and
joint physical custody, but also by examining the role of lawyers, in
No-Fault divorces, their effect on custody outcomes, and the legal
awareness of both parents. Specifically, these questions will be
answered:
(1) Is there a difference between the type of custody requested
by the parents and the type of custody decreed by the courts?
(2) If so, which parent is more likely to receive the custody type
they requested from the court?
(3) Is there a discrepancy between the type of custody desired
by each parent and the type of custody they request from the court?
(4) How does the parental involvement post-divorce compare
with the parental involvement prior to the divorce? Perceptions of
each parent regarding their own involvement with the child as well as
the perception of the spouses involvement will be addressed.
The following legal issues will be addressed;
4


(1) Are the parents aware of their legal rights concerning
divorce, custody, and visitation?
(2) How does each parent perceive their spouses knowledge of
their legal rights concerning the divorce, custody and visitation
issues?
(3) Did the parents utilize lawyers to settle the divorce, custody
and visitation issues?
(4) What was the level of satisfaction with the lawyers services
for each parent, if a lawyer was present?
(5) How satisfied was each parent, with their lawyer concerning
custody and visitation issues?
(6) What was the level of satisfaction for each parent
concerning the spouses lawyer?
(7) What was the level of satisfaction for each parent
concerning the legal system?
(8) How did the presence of lawyers affect custody requests in
court?
The following issues will be addressed, utilizing a study sample
divided into four groups: neither parent had a lawyer, only the mother
5


had a lawyer, only the father had a lawyer, and both the mother and
the father had a lawyer, the following issues will be addressed:
(1) How did the presence of lawyers affect the legal and
physical custody decrees by the court?
(2) In general does the presence of lawyers in the divorce
proceedings lead to an increase of joint custody decrees?
(3) Does the presence of lawyers affect the type of custody
desired/type of custody requested in court discrepancy (if a
discrepancy is identified)?
(4) Is the lawyer perceived, as helpful in resolving
custody/visitation conflicts?
(5) Is the judge perceived, as helpful in resolving
custody/visitation conflicts?
In a subsample of fathers with sole legal, sole physical or joint
physical custody;
(1) What is the level of income for these fathers?
(2) What is the level of educational attainment for these
fathers?
(3) What is the partner status- single, remarried or co-
habitating of these fathers?
6


(4) Did these fathers file for divorce, or did their spouses file for
divorce?
(5) What is the relationship between custody type desired,
custody type requested and custody type decreed by the courts for
these fathers?
(6) Did these fathers know their legal rights?
(7) Did these fathers have a lawyer?
(8) How satisfied are these fathers with the services of their
lawyer, if a lawyer was present?
(9) How satisfied are these fathers with the services of their
spouses lawyer?
(10) For these fathers, how much did their lawyer, if present
help in terms of custody issues?
(11) How did these fathers work out custody/visitation issues?
The following issues will be addressed, comparing the divided
study sample and the subsample of fathers with sole legal, sole
physical or joint custody.
(1) Is there a difference in the level of hostility toward the
spouse in the two samples at time one, time two and time three?
7


(2) Is there a difference in terms of conflict with the spouse
before and after the divorce in terms of custody and visitation issues?
8


CHAPTER 2
REVIEW OF THE LITERATURE
Divorce is defined as the legal dissolution of a socially and
legally recognized marital relationship that alters the obligations and
privileges of the two persons involved. Divorce is a major life
transition that has far-reaching social, psychological, legal, personal,
economic and parental consequences (Price and McKenry, 1988).
The divorce rate in the United States has been rising at a steady rate
since 1945; it increased dramatically between 1963 and 1975 and
then stabilized during the late 1980s. The divorce rate in 1965 was
10.6 per one thousand married women, by 1979 the divorce rate had
increased to 22.8 per thousand married women and had stabilized in
the late 1980s at 22 divorces per one thousand married women
(Weitzman, 1985, Price and McKenry, 1988). Demographic
projections for the late 1980s and early 1990s predict that 50%-60%
of our married population will end their first marriage by divorce
(Glick, 1984; Martin and Bumpass, 1989) and that 60% of American


children will live in a single-parent home before they are 18 (Norton
and Glick, 1986). Several factors have contributed to the increased
divorce rate in the United States: (1) increased education and
employment of women, (2) fewer children in families, (3) economic
affluence, (4)Access to free legal aid, (5) the Vietnam War, (6)
greater social and religious acceptance of divorce, (7) the reform of
divorce laws, (8) growth and age distribution of married persons, and
(9) an emphasis on individualism (Price and McKenry, 1988).
Commensurate with a change in marriage patterns came a
divorce reform movement. This effort led to the development of a
gender neutral approach to the divorce process as well as the
development of No-Fault divorce legislation. Gender neutrality has
served as a guiding principle in many of the statutory reforms related
to property division and spousal support post-divorce (Buehler, 1995).
Increasingly, the law is beginning to conceptualize marriage as an
economic partnership rather than a system of economic
dependencies (Fineman, 1991; Buehler, 1995). In doing so, the law
recognizes the economic contributions of both spouses to the
marriage partnership (husbands through market production primarily
and household production secondarily; wives through household
10


production primarily and market production secondarily) (Buehler,
1995).
The previous fault based divorce process came under heavy
criticism from all aspects of society, due to this No-Fault divorce
legislation was developed. In regards to the development of No-Fault
legislation California made legislative history in 1969 by enacting
unilateral No-Fault grounds for divorce (Buehler, 1995). Following
Californias lead, it only took a few years for most states to adopt at
least one No-Fault ground for divorce, for example, irreconcilable
differences (Buehler, 1995). Although most states followed
Californias lead by reforming the legal grounds for divorce, it is very
important to note that most states did not adopt unilateral No-Fault
grounds nor did they eliminate the option of using a fault-based
ground for divorce. Currently, 12 states employ a No-Fault ground as
the sole basis for divorce and require no waiting period from filing to
divorce. In the remaining 38 states and the District of Columbia
individuals may choose either a fault or No-Fault ground when they
file and/or live separate and apart for a specified time period
(Buehler, 1995; Walker, 1992). Few other areas of state law have
changed more quickly or have had more far reaching consequences
11


than laws regulating divorce and the disposition of property
(Sugarman, 1990). No-Fault legislation maintains that marriages
should be terminated without any finding of guilt or wrongdoing on the
part of either spouse, when marriages are no longer viable (Price and
McKenry, 1988). No-Fault legislation has changed four components
of traditional divorce law (Dixon and Weitzman, 1980; Price and
McKenry, 1988):
(1) It has eliminated the idea of fault based grounds for
divorce. No one is accused or judged guilty of any offense. The
marriage is merely declared unworkable due to undescribed
irreconcilable differences and then is dissolved. The individual is
empowered to decide when a divorce is justified, one spouse can
obtain a divorce without the consent of the other.
(2) It has greatly reduced the use of the adversarial process. It
assumes that the use of the adversarial process generates hostility
and trauma by forcing husbands and wives to be antagonists.
(3) It has based division of assets on equity, equality and
economic need rather than fault or sex-role assignments. Financial
awards are not tied to innocence, and it is not assumed that women
need to be supported by men. Community property is equally divided
under the assumption that both partners have contributed equally, if
differently to the marriage. Child custody is based on the sex-neutral
principle of the "best interest of the child rather than maternal
preference.
(4) It has redefined the traditional responsibilities of husbands
and wives by instituting a new norm of equality between the sexes.
The husband and wife are regarded as equal partners, equally
responsible for the support of the household and care of the children.
Provision of alimony is based on the assumption that the wife will be
employed.
12


While No-Fault legislation has simplified the divorce process,
and in doing so made divorce less acrimonious and adversarial, the
amount of conflict of the No-Fault divorce is related to the number of
issues to be resolved, and the couples ability to compromise (Dixon
and Weitzman, 1980). That is No-Fault divorce is easiest if there are
no minor children, no requests for alimony or child support, and no
disagreements over the distribution of marital property (Dixon and
Weitzman, 1980). However, it should be noted that research has
shown that both informal negotiations and court hearings still remain
fairly adversarial (Buehler, 1995; Erlanger, 1987; Glass, 1984).
During the 1970s there was speculation that No-Fault
legislation, which provided married couples with the ability to freely
dissolve their marriage whenever they desired to, would have
negative effects on individuals, families and society (Price and
McKenry, 1988). Research on the short and long-term effects of No-
Fault legislation have shown that such speculation concerning the
possible negative effects were unwarranted (Price and McKenry,
1988). Many researchers have studied the effect of No-Fault
legislation on the divorce rate. With one exception No-Fault was not
found to be unrelated to an increase in the divorce rate (Dixon and
13


Weitzman, 1980; Wright and Stetson, 1978; Spanierand Casto,
1979; Price and McKenry, 1988). The exception, an increase in the
divorce rate in California, immediately following the ratification of No-
Fault legislation was caused by divorcing couples that postponed
their divorce in anticipation of the simpler, less expensive, and less
confrontive No-Fault divorce (Dixon and Weitzman, 1980). No-Fault
legislation neither resulted in more impulsive marriages earlier in
marriage, nor in women obtaining primary custody of their children.
However No-Fault did result in a decrease in litigious actions, a
decline in the use of attorneys, and a decline in the frequency and
duration of alimony payments (Dixon and Weitzman, 1980). Cherlin
(1981) concludes that the spread of No-Fault divorce laws seems to
have been a reaction to changing attitudes and to the increase of
divorce, not a stimulus that led to an increase in divorce rates.
Contrary to popular assumption, high divorce rates are not
unique to the United States (Price and McKenry, 1988). In fact, other
nations also have high divorce rates. Additionally, the seemingly
higher divorce rates in the United States are compensated by the
uniquely high remarriage rates within the United States (Ihinger-
Tallman and Parsley, 1987). Table 2.1 illustrates the divorce rate per
14


1000 married women in the population for various industrialized
nations, as of late 1980s and early 1990s. In fact divorce rates have
risen in most nations over the course of the twentieth century as a
result of industrialization and urbanization (Price and McKenry, 1988).
The universal existence of divorce across societies is generally
viewed by social scientists as functional rather than reflecting either
personal failure or the failure of the institution of marriage itself (Price
and McKenry, 1988).
15


Table 2.1. Divorces per 1,000 Married Women for Major
Industrialized Countries
Austria
Australia
Belgium
Canada
Germany
France
England
United States
6.8 (1980)
10.8(1989)
4.9 (1990)
12.4 (1986)
8.8 (1988)
8.5 (1986)
12.9(1986)
21.0(1986)
Source: William J. Goode, World Changes in Divorce Patterns, 1993
(p:139).
Even though No-Fault legislation was supposed to create
equality in all aspects of the divorce proceeding, there is a perception
among divorcing fathers that the system of family law discriminates
against them. The anger and conflict surrounding especially child
custody arrangements, since No-Fault, has given rise to a fathers
rights movement (Coltrane and Hickman, 1992). The fathers rights
16


movement depicts its participants as caring fathers who want equal
treatment regarding child-custody, visitation and support (Bertoia and
Drakich, 1993). Fathers rights groups, like the individual, divorcing
fathers that they represent, differ significantly in their views of the role
of the father in the family. Those taking the New Fatherhood
approach encourage mens participation in those duties traditionally
associated with motherhood: care-taking, nurturing, and day-to-day
responsibility of their children (Lamb, 1986). In contrast, Fathers
Rights groups concentrate on gaining greater legal control for men
outside the institution of marriage, for example divorce laws, custody
and visitation issues, etc.,. Finally, those that consider themselves to
be members of the New Right" work to restore both fathers and
mothers to their traditional places within the family system (Erickson
and Babcock, 1995).
These differences in purpose of the Father Advocacy groups
illustrate an important point that should be considered in analyzing
research concerning fathers and child custody Fathers can not be
lumped into one group and analyzed assuming they have common
goals and desires concerning the custody decree for their children.
As a matter of fact, not all fathers want sole custody of their children
17


and thus do not seek it in the courts. Some do want to be the primary
care provider for their children and seek sole or residential custody of
their children. Others may desire custody but decide not to seek it
because they believe the courts are biased against them. From the
sparse literature on divorcing fathers, several ideas are apparent.
Public policy and opinion desires to keep fathers involved with their
children economically, physically and emotionally. The involvement
of fathers and relations with their children is significantly altered by
divorce. The role of fathers in their children's lives changes
significantly post-divorce. With many fathers desiring to remain
involved in raising their children, the system of family law has a
significant impact on the form and interaction of the family.
History of the American Family
Throughout the course of American history, the composition
and definition of the American family has undergone many changes.
In fact, still today it would be difficult, if not impossible, to develop one
clearly agreed upon definition of what constitutes a family. This
confusion or ambiguity surrounding the definition of a family is found
not only among the members of the society, but, also in our system of
18


family law. As family law is the institution that defines, creates, and
dissolves legal familial bonds, it is important to describe the changes
that have occurred within our system of family law and its effects on
the familial unit.
Prior to the early years of the twentieth century, complications
from child birth and disease claimed the lives of many mothers, often
leaving fathers to raise children alone or with the help of extended
family (Orthner, Brown and Ferguson, 1976). However, the death of
the mother was not the only reason for men to raise their children
alone. During the colonial period the legal system in the United States
viewed men as having complete control over their children, their
wives, and the familys assets (Erickson and Babcock, 1995). It was
not until the mid- 1800s that mens control over the family began to
weaken. With increasing urbanization and an economy that no longer
revolved strictly around agriculture, men began to leave the home to
work in factories. As mens economic roles increasingly drew them
outside the home and into the marketplace women extended their
sphere of domestic influence (Furstenberg, 1988; Filene, 1986;
Lasch, 1977). The spatial separation of work and home, an indicator
of an urbanized and industrialized economy, was revising both
19


marriage and parenting roles. For fathers it meant the beginning of
an almost exclusive emphasis on economic responsibilities, which
curtailed the mens day to day contact with their children
(Furstenberg, 1988). The father as instrumental leader derived his
status from the outside world, that is his position in the marketplace.
A mans occupational standing established his worthiness as a
provider (Bernard, 1981; Furstenberg, 1988). While the mother
started to be viewed as an integral part of the child raising process
and her primary family function was one of nurturance as opposed to
economic activity (Erickson and Babcock, 1995).
The image of the father as provider was challenged as the
economy was shaken by the Great Depression, when many fathers
were unable to find work. During this time the strict division of labor
in the family was eroded. Many women were forced or permitted
to assume a more dominant economic role in the family (Furstenberg,
1988). Womens economic roles were also expanded during the war
years as they filled jobs left vacant by men (Furstenberg, 1988).
Despite these economic changes challenging mens positions in the
labor force along with their economic security, the existing domestic
20


order in terms of expected behavior in the family, was not challenged
until the 1960s (Furstenberg, 1988).
History of Custody Law
Throughout most of the twentieth century, men had difficulty
obtaining custody of their children due to changes in the legal system
reflecting the structural changes in the family that occurred during the
industrial revolution. These changes that occurred in the familial roles
led to a new legal doctrine, The Tender Years Doctrine, which was
developed in the late 1800s and was firmly entrenched in the legal
system by the 1920s. At first the Tender Years Doctrine gave
mothers temporary custody of their children. When the children
reached the age of 4 or 5, they were returned to the custody of their
fathers (Warshak, 1996). In time, the Tender Years Doctrine
mandated that a court award custody of the child to the mother unless
she was proven unfit or a danger to the child (Olsen, 1984). During
the 1960s and 1970s, concurrent with the feminist movement, men
were experiencing their own resentments about the burdens of the
provider role. Men began gradually withdrawing from this role
because they felt imprisoned both socially and emotionally by the
21


sharply delineated masculine role (Ehrenreich, 1983). During this
time, the Tender Years Doctrine came under increasing criticism.
Fathers argued that it discriminated against them irrationally on the
basis of their gender, and that courts had to decide custody simply on
the basis of the childs best interest. According to these fathers, each
case had to be decided based on the individual facts and the gender
of the parental contestants had to be perceived as irrelevant (Olsen,
1984). Mothers, on the other hand, argued that the Tender Years
Doctrine reinforced an ideology of inequality which stated that a
womans place was in the home. The characteristics that made
women such an important part of the child-rearing process; nurturing,
emotional etc., were perceived as being the same characteristics that
hindered women in the workplace through discrimination by men.
These mothers claimed the Tender Years Doctrine legitimized this
discrimination. Further, more mothers claimed that the Tender Years
Doctrine discouraged them from pursuing their own goals and
encouraged them to be subservient and obedient to men (Olsen,
1984).
Gender based stereotypes about custody, while simplifying
custody decisions, forced families and children with different needs
22


into the same mold (Warshak, 1992). In an effort to produce custody
decisions that take into consideration the needs of the child, with the
goal of limiting the negative effects of divorce on the child, the courts
again re-developed the basis for custody determinations. Since,
1970, the courts have operated under the Best Interests of the Child
doctrine. The Best Interests of the Child Doctrine established
individualized custody determinations, made on a case by case basis,
in which neither parent has a gender based advantage. Custody
decisions, under the Best Interest of the Child Doctrine, are based
upon the following factors; love and affection between the parent and
child, emotional ties between parent and child, capacity of parent to
give child guidance, capacity of parent to continue educating and
raising the child in its religion or creed if any, capacity of parent to
provide food, capacity of parent to provide clothing, capacity of parent
to provide medical care, capacity of parent to provide remedial care,
capacity of parent to provide other material needs, length of time in
an emotionally or psychologically stable, satisfactory environment and
the desirability of maintaining continuity, permanence of proposed
custodial home, moral fitness of parent, mental health of parent,
physical health of parent, home record of child, school record of child,
23


community record of child and the childs preference for parent, if the
court deems the child sufficient in age (Woody, 1978).
The Best Interests of the Child Doctrine has enabled more
fathers, as well as extended family members to gain custody of
children. Fathers, under this doctrine are being considered as viable
care providers as long as it can be shown that this would be in the
best interests of the child. Conversely, it also has allowed mothers to
relinquish custody; this was difficult if not impossible under the
Tender Years Doctrine. However, the best interests doctrine is far
from perfect. The discretionary power of the judge in the court
proceedings is significant. Maccoby and Mnookin (1992), in a study
of 1100 divorcing families found that 705 divorces were uncontested
when it came to child custody. When the divorcing parents
designated the mother as the sole custodial parent, the court
legitimized the agreement 90% of the time. However, when the
divorcing parents designated the father as the sole custodial parent,
the court legitimized the agreement only 75% of the time. As the
previous example illustrates, some would argue that the society has
failed to acknowledge that men are more than "working machines
and are deserving of an equal parenting opportunity (Fay, 1989).
24


Further, the best interests doctrine has not done away with gender-
based discrimination as father custody is still an alien idea to many.
Custody Definitions
Child custody is comprised of three parts. The first is the
physical custody determination, the question regarding with whom
does or will the child reside? If the child spends the majority of the
time with one parent, this parent is said to have physical custody of
the child. If the child spends roughly an equal amount of time with
each parent, both parents have joint physical custody of the child.
Legal custody on the other hand, refers to major decision making for
the child. If one parent is given legal custody of the child, then he/she
will make the decisions concerning the childs upbringing, such as
what school to attend, medical care, and religious upbringing. The
second option for legal custody is to have joint legal custody in which
both parents share the decision making responsibilities for the child.
The final part of the custody decision is the visitation and child
support determination. This part of the custody decision provides for
the visitation of the non-custodial parent and also establishes the
25


amount of child support to be paid by him/her to the residential
parent.
Custody Types
There are three types of custody considered by the courts;
sole custody, split custody, and joint custody. Sole legal and physical
custody gives one parent full parental authority. The non-custodial
parent has no legal right to make any decisions about the child,
although he or she may have financial obligations to the custodial
parent and children. The non-custodial parent is usually awarded
legal visitation rights. The schedule for such visits may be set by the
courts or by the parents (Price and McKenry, 1988).
The second type of custody is split custody. Split custody is
used when a couple has more than one child and wish to divide the
children, with each parent maintaining sole custody of one or more
children. Commonly, in split custody, the male children will be
awarded to the father and the female children will be awarded to the
mother. Each parent, then, maintains all parental rights and
obligations for the child living with him or her and acts as a non-
custodial parent toward the children living with the former spouse.
26


Split custody is rarely used and research findings suggest that
judges, parents, and children typically view split custody as
unsatisfactory (Price and McKenry, 1988).
The final type of custody to be addressed is joint custody.
Developed in the early 1970s, joint custody is currently, very popular
within the legal system (Grief, 1990). This popularity is due in part to
the following; joint custody is often easier to arrive at legally because
both parents stay involved with the child, neither parent is giving up
their legal rights to the child, in most cases it reduces the need to
assign child support, and it is often though to be less painful to the
children, who maintain more contact with both parents than in cases
of sole custody (Grief, 1990). However, the degree to which the
previous statements are true is influenced by the statutes of the state
in which the custody is determined, and the type of joint custody that
is decreed. Joint custody refers to a physical sharing of the children
or a legal sharing of the children, or both (Grief, 1990). Joint legal
custody recognizes the rights of both parents to make major decisions
regarding their childs life. Under joint legal custody, physical custody
is generally given to the mother, with the father receiving visitation.
Under joint physical custody, the parents share decision-making
27


responsibilities and physical care for the child. Thus, the child spends
significant periods of time with each parent (Price and McKenry,
1988). Of the three custody types, joint custody can be the most
egalitarian in terms of allowing both parents to be involved with the
child. In doing so, joint custody allows fathers the ability to avoid the
superficial parent-child relationship that is common in mother-custody
arrangements (Warshak, 1992).
Joint custody, however is not appropriate for all divorcing
parents and their children. In fact, the increased contact between the
parents can make the divorce transition more conflictual and harmful
to the child (Warshak, 1992). Joint custody works most efficiently
when the following conditions are met: each parent believes the other
parent is important to the children, each parent believes the other
parent is a good parent, the parents live close to each other, the
children prefer joint custody, both parents favor joint custody, the
responsible parent makes child-support payments regularly, parents
cooperate well with each other, parents are flexible, parents
communicate well with each other and parents protect the children
from inter-parental conflict (Warshak, 1992). Conversely, joint custody
is most likely to fail if one parent is unable to care for the children
28


adequately, one parent is adamantly opposed to the arrangement,
parents live far apart from each other, parents maintain high levels of
hostility toward each other, or the parents use the children as pawns
in a war against each other (Warshak, 1992).
Current Trends in Divorce Law
Currently, the courts appear to be favoring joint legal custody
in their custody determinations in an effort to keep both parents
involved in the post-divorce care of the child. Joint legal custody
allows for both parents to share the rights and responsibilities and to
make decisions relating to the health, education and welfare of the
child (Albiston, Maccoby, and Mnookin, 1990 ). However research
has found that the joint legal custody decree frequently offers the
non-residential parent, usually the father, no more parenting time with
their children than sole mother-custody agreements (Fay, 1989).
Advocates for joint legal custody argue three points in favor of
this decision. First, they claim that the formal designation of joint
legal custody strengthens or maintains nonresidential parents
commitment to their children, and that this increased commitment
increases nonresidential parents visitation with their children
29


(Albiston, Maccoby, and Mnookin, 1990; Davis and Yazici, 1996).
The second argument is that joint legal custody, by requiring
communication and cooperation between the parents to make
decisions concerning the child, encourages parents to develop a
positive co-parenting relationship (Albiston, Maccoby, and Mnookin,
1990; Davis and Yazici, 1996). The third argument in favor of joint
legal custody is that it strengthens the bonds between non-residential
fathers and their children, emphasizing fathers responsibilities and
encouraging them to pay the child support they owe regularly and in
full (Albiston, Maccoby, and Mnookin, 1990). Still others contend that
joint custody promotes equality by freeing the mother from bearing the
entire responsibility for child-care, a responsibility that hinders their
ability to compete for wages (Becker, 1992). Mothers, fathers, and
judges benefit from joint custody as it does not require the
identification of one parent as better than the other (Becker, 1992).
The early empirical research appeared to support these assertions.
Studies of children and parents who had voluntarily agreed to a joint
custody arrangement found that these arrangements were quite
successful (Becker, 1992; Luepnitz, 1982; Steinman, 1981; Johnston,
1995). However, among parents that do not agree to joint custody,
30


but have it imposed on them by the courts the findings are quite
different. The recent empirical research suggests that when parents
cannot coordinate without conflict, children suffer (Becker, 1992).
Contrary to the assumptions of the proponents of joint custody, a high
level of involvement by both parents in a childs life is negative when
conflict between the parents is high (Becker, 1992).
Predictors of good adjustment for children are, the parents
psychological functioning and the quality of the parent-child
relationships. Further, research has found that custodial parents who
were anxious or depressed, and those who suffered from substantial
emotional or personality disturbances were more likely to have
disturbed children (Johnston, 1992; Kline etal., 1989; Johnston,
1995). Similarly, Albiston, Maccoby, and Mnookin (1990), found that
with one exception joint legal custody has no significant effect on
increasing nonresidential fathers contact with their children, relations
with their ex-spouse, or financial support of their children. On the
other hand, there is also research showing that joint custody fathers
tend to be more involved with their children, spend time with them,
and share child-raising responsibilities with their ex-spouse (Bowman
and Ahrons, 1985). In general, research has found that joint legal
31


custody status, and greater physical proximity has been associated
with more frequent father child contact. It is important to note that
many joint custody studies have found that more substantial amounts
of access/visitation, in itself, was associated with neither better nor
worse outcomes in children (Kline, Tschman, Johnston and
Wallerstein, 1989; Pearson and Thoennes, 1990; Johnston 1995).
While it has been found that children benefit from regular, predictable
visitation arrangements, it is the quality of the relationship that is most
significant in regard to the childs adjustment to the post-divorce
family (Pearson and Thoennes, 1990).
Arditti and Bickley (1996), indicate that couples who reported
having joint custody also reported a better coparental relationship.
This research also indicated that perhaps the primary benefit from
joint custody is that joint custody facilitates the coparental
relationship, rather than directly influencing aspects of the fathers
relationship with his children. Further, Arditti, (1992) found that there
were no significant differences between joint-custody and non-
custody fathers in terms of the quality of their relationship with their
ex-spouse, as well as the level of hostility of their divorce
proceedings, suggesting that couples with joint custody did not
32


necessarily have more cooperative relations prior to establishing the
custody arrangement. These findings support the placement of
custody arrangement as an antecedent, as opposed to an outcome of
coparental relationship quality (Arditti, 1992; Arditti and Bickley,
1996).
Mediation
Another recent development in the area of divorce law is the
increase in the use of mediation to resolve custody and support
issues. The legal context, both in the books and in practice, in which
the decision to use mediation or to rely on court proceedings is made
include: the Divorce Act (1985), the Family Law Act (1990), and the
Childrens Law Reform Act (1990). The Divorce Act (Subsec.9) states
the following:
(2) It is the duty of every barrister, solicitor, lawyer or advocate
who undertakes to act on behalf of a spouse in a divorce proceeding
to discuss with the spouse the advisability of negotiating the matters
that may be the subject of a support order or a custody order and to
inform the spouse of the mediation facilities known to him or her that
might be able to assist the spouse in negotiating those matters.
(3) Every document presented to a court by a barrister, lawyer
or advocate that formally commences a divorce proceeding shall
contain a statement by him or her certifying that he or she has
complied with this section.
33


Clearly, in the context of divorce proceedings, law in the books
places a duty on the lawyer to inform his or her client of the option
and availability of mediating matters relating to support or custody.
Clients who have been informed of the availability of mediation and
decide not to participate in this process, have (tentatively concluded)
voluntarily chosen lawyer negotiations. Clients who were not told
about mediation services have, by this omission, been gently pushed
into lawyer negotiations (Ellis and Stuckless, 1996).
The Childrens Law Reform Act (Sec. 10 (6)) states:
31(1) Upon an application for custody of or access to a child, the
court at the request of the parties, by order may appoint a person
selected by the parties to mediate any matter specified in that order.
The duty placed on the court by law is restricted to matters relating to
custody and access. In those matters, a judge can order the
appointment of a mediator selected by the parties when the parties
themselves have requested mediation. Since relatively few
separating or divorcing couples know enough about mediation to
make an informed request, and even fewer know the mediator they
may wish to select, their requests and selections may follow rather
than precede the judges order. To the extent that this is true,
couples referred to mediation by the courts may see themselves not
34


as volunteers but as being pushed toward participation in this
process.
Mediation is defined as "a voluntary, non-adversarial dispute
resolution process in which a third party, the mediator, assists clients
of a relatively equal bargaining position reach a mutually satisfactory
agreement on issues concerning the family (Attorney General, 1989,
p:21). The mediator could be a therapist, lawyer or family court
judge. However here the focus is on mediation performed by a
specialist whose area of expertise is mediation (mediator). Further,
divorce mediation refers to a process in which divorcing spouses
negotiate some or all of the terms of their settlement agreement with
the aid of a neutral and trained third party. Some of the negotiation
sessions may involve separate meetings between the mediator and
each of the parties, but the emphasis tends to be on face-to-face
sessions in which the parties deal with each other directly (Ellis and
Stuckless, 1996). The mediators over-reaching objective is the
establishment and maintenance of a cooperative and problem solving
orientation between the spouses as opposed to the competitive I win
- you lose orientation of the lawyers (Kressel, 1985). Divorce
mediation has emerged partly in response to the public desire for
35


more humane and non-adversarial methods of making divorce and
separation agreements and partly in an attempt to free up the courts
through alternative means of resolving disputes (Stasie, 1984).
Lawyers use of adversarial procedures during divorce and custody
decisions has been criticized particularly for its effects on children
(Kressel, 1985). In contrast, mediation is a constructive mechanism
as it contributes toward reaching a mutually satisfactory durable
outcome that generates greater mutual satisfaction, and attempts to
decrease negative or harmful outcomes such as violence and
escalation of conflict (Rubin, 1994). Kressel, Frontera, Forlenza and
Butler (1994) has identified two models of mediation styles. The first
model is the problem-solving model (PSM), while the second is the
settlement-oriented model (SOM). The SOM places an emphasis on
helping the couple arrive at an agreement quickly. The production of
an agreement is given priority, with less emphasis given to the
durability of the agreement or the couples satisfaction with the
agreement. In contrast, the PSM focuses on reaching agreements
that reflect integrative problem solving. In doing so, the process
usually takes longer and utilizes more creative solutions then is found
in the PSM.
36


The decision to participate in mediation is influenced by a
number of factors. Pearson, Thoennes, and Vanderkooi (1982)
investigated the effects of three sets of factors on the decision to
accept or reject the use of mediation to resolve child custody
disputes. The first of these factors was background characteristics.
The researchers found that couples who chose mediation were more
educated, earned higher incomes, and were more likely to be
employed as professionals or managers than those that rejected
mediation. However, none of these differences were found to be
statistically significant. The same is true of gender. Specifically, 69%
of males (husbands) and 74% of females (wives) chose mediation.
Findings reported by Kelly and Gigy (1989) indicate that mediation
and adversarial clients (court resolution ) differ significantly with
respect to age, education, and presence of minor children. Mediation
clients were more highly educated, younger by an average of three
years, and more likely to have children under the age of eighteen.
The combined median income of both groups was approximately
$59,000 per year. Kelly and Gigy (1989) also reported findings on
the reasons given by mediation clients for choosing mediation. The
reasons identified by more than 80% of the male and female partners
37


are as follows: to reach an agreement that is satisfactory to both of
them (93%), to reduce or avoid hostility between them (83%), to
reduce the cost of obtaining a lawyer (82%), and to reduce
involvement with lawyers and the court process. Overall, men were
more inclined to use mediation than women.
Bantz, (1991) reported that separating or divorcing spouses
who chose lawyers to represent them, did so for a number of reasons.
Among men, three of the most important reasons were 1. wanted child
custody, 2. wanted an expert to handle the divorce, and 3. the spouse
hired an attorney so he had to hire one as well (Hilary and Johnson,
1985). Among women, three of the most important reasons were 1.
wanted physical child custody, 2. wanted an attorney to help
negotiate child support, and 3. the spouses had a lot of property to
divide (p:98). According to the results of a comprehensive study
(Ellis, 1994) among females in the mediation sample, the highest
proportion (69.2%), wanted the issues of access settled. Among
females in the lawyer sample, the highest proportion (63.7%) wanted
the issue of child support settled. A higher proportion of females in
the lawyer sample than in the mediation sample wanted the issue of
child support settled (63.7% vs. 47.4%). Compared with females in
38


the lawyer sample, females in the mediation sample reported
spending twice as much time trying to settle the issues of custody and
access (11 months vs. 5 months for custody, and 12 months vs. 6
months for access) and less time trying to settle the issue of child
support (7 months vs. 12 months) prior to commencing lawyer
negotiations. Compared with males in the mediation sample, female
mediation clients reported spending less time trying to settle the issue
of access (9.5 months vs. 13 months) prior to commencing mediation.
Compared with females in the mediation sample, a significantly higher
proportion of females in the lawyer sample got the custody
arrangement they wanted (mother-sole custody 85.0% vs. 67.2%).
Compared with females in the lawyer sample, a higher proportion of
females in the mediation sample got the monthly child support
payments they wanted (78.8% vs. 67.6%).
Research has reported that compared with lawyer negotiations,
mediation made a greater contribution toward reducing post-divorce
abuse (Kelly, 1990; Ellis, 1994). Voluntary mediation makes a greater
contribution to preventing postprocessing violence toward female ex-
partners than does coerced mediation
39


Since the mid-1970s, a number of researchers have published
studies addressing satisfaction with the mediation process.
According to their findings, client satisfaction varies positively with
reaching an agreement, although a significant yet smaller proportion
of clients are satisfied even though they did not reach an agreement.
Mediation clients report higher levels of satisfaction than do
adversarial clients. Client satisfaction varies with custody or access
(visitation) or litigation varies with gender, with meditation fathers
being equally or more satisfied than mediation mothers and litigation
mothers bring more satisfied than litigation fathers. Client
satisfaction with the process of mediation varies inversely with
judicial or judicial or lawyer control or involvement, with clients
participating in non-court-based service with low judicial or lawyer
control or involvement reporting higher levels of satisfaction (Ellis
and Stuckless, 1996).
Childrens adjustment to divorce has been found to vary in the
incidence of pro-social conduct (e.g., cooperation, social support),
externalizing disorders (e.g., aggressive behavior), and internalizing
disorders (e.g., depression). One factor or variable that could help
account for these variations is the marital dispute resolution process
40


that divorcing parents participate in. Advocates of marital conflict
mediation argue that children whose parents mediated their
separation or divorce will be better adjusted than children whose
parents dissolved their marriage through participation in the
adversarial process (Ellis and Stuckless, 1996).
This argument (hypothesis) rests on the following theoretical
rationales. First, mediation makes a greater contribution toward
preventing parental conflict through improved communication and
increased awareness of the underlying causes of spousal conflicts. If
and when conflicts do occur, spouses are more likely to resolve them
in a positive (win-win) way through compromise. This is a way of
resolving conflicts that spouses learn to apply during mediation
sessions. Second, mediation facilitates coparenting. Co-parenting is
in the best interests of both children and parents. Third, mediation
increases the level of compliance with child (and spousal) support
arrangements because the spouses themselves are responsible for
reaching the agreements in which these arrangements are described.
The adjustment of minor-aged children is more strongly associated
with post-divorce parental conflict than is participation in either
mediation or the adversarial process. Post-divorce parental conflict
41


varies inversely with participation in mediation or the adversarial
process. Post-divorce parental conflict varies inversely with
participation in mediation or the adversarial process, with parents
having higher levels of contact reporting levels of conflict similar to
those reported by adversarial parents having lower contact.
Differences in levels of conflict reported by mediation and adversarial
parents vary inversely with the time span since the final divorce, with
lower levels of conflict being reported by the former spouse during
the first year and similar levels of conflict between parents in the two
groups being reported by the end of the second year. Post-divorce
levels of cooperation vary with participation in mediation or the
adversarial process, with mediation parents reporting higher levels of
cooperation than adversarial parents 2 years following the final
divorce. At 2 years post-divorce, mediation and adversarial parents
reported similar levels of conflict and equally well adjusted (or poorly
adjusted) children (Ellis and Stuckless, 1996). Custody arrangements
vary with participation in mediation or the adversarial process, with a
significantly higher proportion of adversarial parents (mainly mothers)
being awarded sole custody (Ellis and Stuckless, 1996).
42


Theoretical Perspectives of Fatherhood
After the previous discussion of child custody, divorce law and
mediation, with an emphasis on fathers, it is important to tie these
ideas into the current theoretical perspectives of fatherhood within the
discipline of sociology.
The current research and theory concerning fatherhood can be
divided into three general sub-headings. Those that explore the
meaning of and changing nature of the symbolic representations,
ideologies, and cultural/subcultural images of fatherhood (Marsiglio,
1995). Those that have attempted to conceptualize and study the
nature and consequences of mens perceptions about their role
identities, and those studies that have investigated the ways and the
extent to which paternal aspects are related to aspects of childrens
well-being (Marsiglio, 1995). Socialization and Identity theories will
be discussed in the following paragraphs.
Socialization theory suggests that assuming a father role
involves the internalization of a set of role prescriptions and
requirements for what a father should be. These prescriptions are
developed through cultural values and stereotypes of what a father
should be (Daly, 1995). Another explanation of how the father role is
43


developed is role modeling. From this perspective, sex role identity
including a willingness or ability to parent is developed at an early
age in male children. This development occurs through the childs
interaction with the father and through observation. If the father is
absent or unavailable then the child may become an absent father
later in life as a result of the lack of interaction with the father and the
lack of opportunities for modeling behavior. If the father is available
to the child and plays a nurturing parent role, the child is likely to
become a nurturing father later in life.
Identity theory maintains that the individuals self consists of
dynamic self-perceptions that stem from interactions and negotiations
occurring within structured role relationships (Marsiglio, 1995). It
posits that fathers self-perceptions are organized into an ordered
fashion so that fathers will perceive their father roles as more
important than their non-father roles at any given point in time
(Marsiglio, 1995). Role identity salience and commitment are two of
the key theoretical concepts in Identity Theory (Stryker, 1968, 1980).
The relative importance of a given role-identity (such as being a
father) in ones self-concept is generally referred to as the salience of
the role-identity. This theory posits that role-identities are structured
44


in a hierarchical manner (McCall and Simmons, 1978; Stryker, 1968,
1980). This salience based hierarchy of role-identities is better
understood through the concept of commitment (Stryker, 1979).
Ones commitment to a role-identity depends on the degree that one
is enmeshed in social structure: the greater the commitment premised
on a role-identity, the more salient it will be (Stryker, 1979, 1980). An
important implication of salience is found in its association with
behavior. The more salient a role-identity is, the more likely is the
individual to act out this role (Burke and Reitzes, 1981). The
consequence of greater salience of the father role is that fathers will
be more likely to engage in specific father-related behaviors and
emphasize their father roles when competing demands for their time
and energy occur (Marsiglio, 1995; Burke and Reitzes, 1981; Stryker,
1963). Role-commitment for fathers, involves the extent to which
maintaining particular role relationships requires men to be a
particular kind of father; i.e. breadwinner, nurturer, the strength of
their conviction to maintain these relationships, and the number of
relationships fathers have based on their identity (Marsiglio, 1995).
45


Using an identity theory perspective Ihinger-Tallman, Pasley, &
Buehler (1995) summarized the development of the father role
identity as follows.
1. To the extent that father identity is enmeshed with other
identities, father identity will have high salience and father roles are
likely to be enacted.
2. The more a father is embedded in a network of relationships
that are premised on his being a father and those relationships are
important to him, the more he will be committed to the status and
roles of fatherhood.
3. The greater the salience of father status, the greater the
commitment to that status (commitment to self).
4. The greater the salience of father status, the greater the
commitment to ones child (commitment to other).
5. A father will make choices favoring enactment of father role
behavior (as opposed to role behavior associated with a nonfather
identity) when father status is more salient than other statuss.
6. A father will make choices favoring enactment of father role
behavior (as opposed to role behavior associated with a nonfather
46


identity) when the actions and reactions of significant others favor
father involvement.
7. A father will enact parenting role behavior that is relatively
congruent with his father identity.
8. All else being equal, a father will be more likely to make role
choices that he perceives as relatively pleasant and entailing few
barriers than to make role choices he perceives as aversive and
difficult to enact.
9. The salience of father roles will affect the ways a father
chooses to be involved with his child.
Along with the theoretical perspectives of fatherhood, one also
needs to understand the imagery of fatherhood and father
involvement. The public has been inundated; by the media with
opposing, competing images of fathers and fatherhood. These
images take the form of the involved, nurturing father versus the
absent deadbeat father. Adding legitimacy to these images is the
increasing politicization of fatherhood. Mothers rights groups, fathers
rights groups, the religious right and politicians have at various times
embraced these images to influence legislation or public opinion.
47


What is lost in this polarized perception of fathers is the picture of an
average father.
Arising from this polarized imagery of fathers are two types of
fathers: the good dad and the bad dad (Furstenberg, 1988). The
good dad is no longer confined to the role of provider, he is nurturing,
caring and involved with his children during marriage. If the good dad
divorces the childs mother, he stays involved with the child and pays
child support. He is the new father, he is androgynous, and is a full
partner in parenthood. However, there is another side to fatherhood-
more fathers, than ever before are absent from the home. Many men
have become role rejectors; men who avoid their obligations to their
children, both financially and physically. These fathers are the bad-
dads", fathers that avoid or deny their obligations to their children
(Furstenberg, 1988). The retreat from fatherhood is not new. Family
desertion has always occurred and in fact was common during the
Depression. Then and now a disproportionate amount of role
rejectors are found among the economically disadvantaged. Two
factors that may affect the good-dad, bad-dad image are race and
class (Marsiglio, 1995). Although, it has not been tested empirically
at this time, discrimination and/or prejudice could lead to the

48


perception of minority or lower/working class fathers as occupying the
bad-dad image while white, middle class fathers are viewed as good-
dads. What may be new is the amount of middle-class fathers that
are avoiding their obligations. Men who have the resources but not
the commitment to perform their fatherly duties (Furstenberg, 1988).
These types of fathers, the good-dad and the bad dad, have
developed simultaneously in our society and can be linked to the
growing division of labor in the family (Furstenberg, 1988). The
breakdown of the traditional division of labor can erode womens
power in the family and create greater conflict when parents do not
agree on parenting styles. As men become more competent parents,
they may be more willing to divorce, knowing that they have the skills
to seek custodial rights (Furstenberg, 1988; Hoffman, 1983).
Eggebeen and Uhlenberg (1985), using data from the 1960
and 1970 census and the 1980 general population survey have
estimated the amount of time fathers spend in family environments
living with a spouse and children. These researchers found that the
amount of time fathers spend in a family environment with a spouse
and children has declined an estimated 43 percent between 1960 and
1980. Possible explanations for this decline are later marriage, a
49


decline in fertility, and increasing rates of divorce (Eggebeen and
Uhlenburg, 1985). These results have been interpreted to mean that
fatherhood is becoming a more voluntary role, one that is chosen less
frequently than in the past. In explaining the good-dad bad-dad
dichotomy, Furstenberg (1988) asserts that as fewer fathers assume
the father role, those who do assume this role will be the most
committed and dedicated. Thus, fathers may be becoming a more
differentiated population, with only more highly committed fathers
entering the role.
One of the most important reasons for studying fathers is to
examine how their level and particular type of conduct are related to
their childrens emotional, psychological, and financial well-being
(Marsiglio, 1995). Most scholars agree that, although fathers typically
interact with their children differently than do mothers, men are not
inherently deficient in their ability to parent and a fathers gender is
far less important in influencing child development than are his
qualities as a parent (Marsiglio, 1995; Biller, 1993; Warshak, 1996).
A growing body of research indicates that fathers are an integral part
of the child rearing process. The father role, is a role that if assumed,
greatly benefits the cognitive and emotional development of children
50


(Furstenberg, 1988; Russell, 1986; Grief, 1995; Marsiglio, 1995;
Warshak, 1992). Father involvement is defined as behaviors that
promote interaction with and reflect a commitment to a child,
including, among other activities, face-to-face contact, phoning or
writing, physical caretaking and financial support (Ihinger-Tallman,
Pasley, and Buehler, 1995). Other research has demonstrated that
paternal involvement is linked to economic success, which in turn is
linked to timely family formation and conjugal stability (Aldous,
Osmond and Hicks, 1979; Haveman and Wolf, 1994; Cherlin, 1981;
Fustenberg 1996). Researchers have sought to identify factors that
account for fathers varying levels of involvement in doing numerous
activities (playing, doing projects, reading and going on outings)
(Marsiglio, 1995). Surprisingly, research has failed to investigate
father involvement from an emotional standpoint. In doing so, the
research has inadvertently reinforced the stereotype of fathers as
breadwinners and incapable of assuming a nurturing role with his
children. Thus, research has over-emphasized mens roles as
breadwinners outside the home, and womens roles as home-makers
within the home (Epstein, 1988).
51


Another way of examining father involvement is by studying
fathers who are seeking custody. In 1959, there were fewer than
350,000 father-only families, by 1989 there were 1.4 million father-
only families (Meyer, 1993). In fact, the number of father only families
has tripled since 1974, making them the fastest growing family type in
the United States today (Meyer, 1993). Although the number of father
only families has tripled since 1974, still only 10% of all divorced
fathers have primary custody of their children (Price and McKenry,
1988; Glick and Norton, 1980). Research suggests that higher levels
of father-involvement tends to be associated with increased well-
being, feelings of competency and enhanced self-esteem for fathers
(Arditti and Bickley, 1996; DAndrea, 1983; and Dominic and
Schlesinger, 1980). Divorced fathers report preferring greater
involvement with their children (Arditti and Bickley, 1996; Arditti and
Allen, 1993). Luepnitz (1986), found that joint-custody mothers, due
to increased father involvement, reported being more able to rely on
the other parent for child-care, thus contributing to the avoidance of
maternal burn-out. Other research has indicated, that greater levels of
father involvement was associated with mothers perceptions of
greater parenting support (Fishel and Scanzoni, 1989). Child support
52


payment has also been positively associated with father's
involvement with their children (Arditti and Bickley, 1996).
On the other hand, not all fathers who seek custody are
motivated to do so out of concern for the welfare of the child. As the
custody determination is frequently intertwined with the divorce
settlement, some fathers seek custody in order to gain the upper hand
in another area of the divorce process. Similarly, some fathers seek
custody in order to get revenge against their spouse or to try to
coerce the spouse into remaining in the marriage. Warshak (1992)
has identified three types of fathers who seek custody for what he
considers to be the wrong reasons; the negotiator, the bluffer, and the
avenger. The "negotiator acts as though he wants custody, when in
fact, he is actually trying to gain the upper hand in the divorce
settlement. His strategy is to threaten his wife with an expensive
custody battle and then agrees to withdraw his request for custody in
exchange for a more favorable financial settlement (Warshak, 1992).
The "bluffer takes the same approach as the negotiator, however,
the goal of the bluffer is to make the divorce too expensive and
emotionally draining on the spouse so that she agrees to stay in the
marriage (Warshak, 1992). The avenger seeks custody in order to
53


punish his spouse for leaving him. Frequently, in the case of the
"avenger, the spouse has been unfaithful or has left the marriage for
another person (Warshak, 1992). However, the majority of fathers
who seek custody do not do so to seek a better financial arrangement
or to seek revenge against the ex-spouse. These fathers have a
strong bond with their children and wish to continue and strengthen
this bond, even during the post-divorce relations (Warshak, 1992).
The importance, for the child, of continued contact with the
non-custodial parent: typically the father, has been supported
throughout the literature (Hess and Camara, 1979; Hetherington et
al., 1978; Kurdek and Berg, 1983; Wallerstein and Kelly, 1980; cited
in Braver and Griffin, 1996). The children in the divorcing family
typically experience a significant loss of contact with their fathers.
Approximately 90% of these children end up in mother sole custody or
in mother physical/joint legal custody families by court decree (Meyer
and Garasky, 1993). Thus, these children must make the transition
from seeing their fathers on a daily basis to seeing their fathers on a
minimal basis. The children are not the only ones to experience
difficulties in this situation. Fathers, frequently experience parental
disenfranchisement after the divorce (Fay, 1989; Braver and Griffin,
54


1996). Fathers who feel disenfranchised do so, in part because they
feel the legal system, and their divorce settlement is unfair or unjust to
them (Braver and Griffin, 1996). Parental disenfranchisement has
been associated with child support delinquency and visitation
cessation (Mandell, 1995; Braver and Griffin, 1996). Braver and
Griffin, in a sample of 93 divorcing couples asked each respondent
how satisfied they were with the custody, visitation, child support, and
property/debt division in their divorce decree. All questions were
asked on a seven point scale, with one equaling extremely
dissatisfied and seven equaling extremely satisfied. Braver and
Griffin (1996) report that women reported greater satisfaction than
men on all five provisions. Women were relatively satisfied with their
entire divorce settlement while fathers' satisfaction was lower, near
the mid-point between satisfied and dissatisfied on each (Braver and
Griffin, 1996). A series of analysis were performed in an attempt to
determine why mothers were so much more satisfied with the terms of
their divorce than men. The results disclosed that women appear to
feel more satisfied with their divorce settlements for two reasons:
because they are more likely to get what they want than men are and
because they feel they have more control over the settlement process
55


than men do. The more far reaching and comprehensive factor,
however, turned out to be their feeling that they controlled the
settlement process (Braver and Griffin, 1996).
Braver and Griffin (1996) found the most common form of child
visitation, in their sample to be, father visitation every other weekend.
Moreover, Braver and Griffin claim that regardless of the courts
decree, visitation could be virtually limitless if the custodial mother
permitted it to be so (Braver and Griffin, 1996). The real constraining
factor in child visitation is not the court decree, but the mothers
views on father contact (Braver and Griffin, 1996). The mother's
autonomy or power over the childrens contacts with their father, often
in tandem with revenge for real or perceived misdeeds, is one of the
few positive emotions they may be experiencing at this time (Fay,
1989). Research has shown that mothers tend to under-report the
level of father involvement and payment of child-support (Ahrons,
1983; Wright and Price, 1986;). Upon further analysis, Braver and
Griffin found that non-custodial fathers claimed they had missed only
3% of all scheduled visits, while the custodial-mothers claimed they
had missed 12% (Braver and Griffin, 1996). However, a third of the
non-custodial fathers claim they have been denied visitation
56


privileges at least once, and a quarter of the custodial parents admit
the denial (Braver and Griffin, 1996). In addition to denial of access to
the children, these fathers often face more subtle denials of visitation.
Denial due to the scheduling of conflicting activities is also common
(Fay, 1989). Denial of visitation, due to the residential parents
refusal to allow contact has been supported in research conducted by
Grief (1995) concerning fathers that do not have contact with their
children. When fathers were asked why their contact with their
child(ren) ceased, 62% of these fathers reported the other parent as
an obstacle (Grief, 1995).
The idea of disenfranchisement also appears in the research
concerning fathers who do not pay their child support. Deena Mandell
utilizing a case study approach to researching fathers who were
arrears in paying their court ordered child support. When the fathers
were asked what led to the decision to cease payment of child
support, Mandell found, In brief that the fathers came to see
themselves as victims of their wives and of a legal system which
supports wives/mothers at the expense of husbands/fathers (Mandell,
1995). Although each father stated that non-payment was a financial
necessity for him, none gave this as his sole or primary reason
57


(Mandell, 1995). Further, non-payment was consistently tied to
questions of custody or access to the child. These fathers felt that at
all levels, laws and policies which favor the rights of mothers are
blindly upheld and ruthlessly enforced (Mandell, 1995). Thus, non-
payment was considered an act of resistance and self-empowerment,
a way to regain control (Mandell, 1995).
Our legal/sociocultural approach to divorcing fathers may lead
to the physical and psychological disenfranchisement and destruction
of fathers as parents (Fay, 1989). Throughout the divorce process
the needs of the children and the mother are addressed. However,
the needs of the father to have continued and meaningful contact with
his children as a parent, not as a visitor frequently remains
unanswered. If the legal system continues to treat fathers as
providers of child support and inept as parents then the children of
divorce will continue to be plagued by the absent father phenomena.
Parental absence is a serious situation as it is often a precursor of
juvenile delinquency, school failure, and drug abuse (Fay, 1989).
A major trend of the literature, that addresses social policy, is
to answer the question "How do we keep fathers involved with their
children, emotionally and financially after a divorce has occurred?.
58


The legal system has developed joint custody, in part for this
purpose. It is the courts' belief that if a father continues to have
parental rights post-divorce, the father will maintain his level of
commitment with the child, a positive co-parenting relationship will
develop, and that joint custody encourages fathers to pay their child
support on time and in full. However, the research studying the
effects of joint custody in relation to the visitation and child support
payment by the non-custodial parent relationship is contradictory, at
this point (Albiston, Maccoby and Mnookin, 1990).
Fathers and Sole Custody
During the early years of the 20th century, fathers were expected to
provide for their children (Atkinson and Blackwelder, 1993). Providing
for the children consisted of making sure the children had clothing,
food and shelter. Once these factors were provided for,
economically, the fathers duties were fulfilled. Currently, fathers are
expected to participate in their childrens lives by providing day to day
care, both physically and emotionally (Atkinson and Blackwelder,
1993). Thus, for many fathers, a shift has occurred from father as
59


provider to father as nurturer. Although fathers are now expected, by
cultural standards to be involved in child-rearing, it is apparent that
not all fathers are able or willing to live up to this expectation. One
group of fathers that are taking on this task fully is the custodial
father.
Fathers with sole custody of their children rarely receive this
type of custody through the courts. The majority negotiate this
custody arrangement outside of court through a mutual agreement of
the divorcing spouses (Bartz and Witcher, 1978; Grief and Demaris,
1989). In a survey of 1,132 custodial fathers it was found that 13%
had not been to court, 60% indicated that the court approved a mutual
decision, 9% won custody after a brief contest, 11% won after a long
fight and 7% indicated other (Grief and Demaris, 1989). Risman and
Park (1988) reported similar findings in a sample of 148 single
fathers. Over half of the fathers, (62%) had little choice in adopting
the single parent role, because they had been deserted, widowed, or
their wives had refused custody. The rest were split between having
negotiated for custody while still married (15%) and having obtained
custody by forceful action against the mothers wish (20%). Only five
of the male respondents (4%) reported that they had been the primary
60


caretaker before the divorce and, therefore, received custody
(Risman and Park, 1988). Despite the current legal focus on the best
interest of the child granting more fathers a more active role in child
raising post-divorce, the situation surrounding the courts is clearly
difficult for the divorcing father. This difficulty arises from several
areas:
(1) Many fathers fear a bitter court battle and the subsequent
possibility of having a poor relationship with their children and former
spouses.
(2) Fathers see it as unchivalrous, if not unmanly, to attack the
character of their wife and to seek to carry out what society has
defined as largely a female role, that is, childrearing
(3) Many fathers simply do not want what they perceive as the
burdensome responsibility of having primary responsibility for child
rearing.
(4) Many mothers fervently seek primary custody to enhance
their general financial settlement and/or to avoid social stigma, in fact,
they might be very satisfied with their former husbands having
primary custody.
(5) The Equal Rights for Fathers Organization contends there
is a quiet conspiracy among judges, probation departments,
conciliation courts, and even fathers attorneys to dissuade divorced
men from seeking custody.
(6) Courts still base custody decisions to some extent on fault,
and it is easier to prove the father at fault and thus a less able parent
than the mother (Price and McKenry, 1988).
Additionally, the divorce process is emotionally and financially
draining for all involved and most fathers lack a support network to
assist them in dealing with the legal system. Those, fathers who do
61


go to court, to seek primary custody, tend to do so only when they
believe they have a good chance of winning (Rosenthal and Keshet,
1981).
Areas of difficulty for fathers with custody are balancing work
and childcare, re-establishing a social life, and interacting with the
court system. These fathers must learn to effectively juggle the many
different tasks required of them to fulfill their roles and status. This
juggling or balancing may result in a state of role strain. Whether a
person feels stressed or happily busy depends on the combination of
roles the person has and whether society makes it easy or difficult for
the person to fulfill the expectations attached to the roles (Epstein,
1988). Role strain can result from not only having too many roles to
play, but also from having a combination of statuss with which most
people are unfamiliar or do not approve (Estonia, 1988). Role strain
is not limited to the single custodial father, rather it is an area of
difficulty for single custodial parents as a whole. Fathers who choose
to play this role fully tend to have an easier time than those that are
forced into it. The research shows this lifestyle to be a functional one
despite the role ambiguity associated with it (Grief, 1995). There are
many benefits to studying custodial fathers including but not limited to
62


the following; by gaining a better understanding of these fathers we
will gain additional insight into fathering in general, with the current
frequency of divorce, father custody will remain an option for many
separating families, also, social policy and social work practitioners
are increasingly being confronted by father headed families and could
benefit from a knowledge of the tasks facing the single custodial
father (Grief, 1995).
Grief and Demaris (1989) investigated fathers who fought for
sole custody and those who were awarded it without a court battle.
Those who battled reported more conflict at the time of the break up
and had a tendency to seek the custody of girls. Income, the age of
the children, and fathers involvement with the children before the
break-up were not significantly related to having fought for the
custody. A possible explanation for their findings is that the high
conflict at the time of the breakup made it difficult for the father to
negotiate custody of the children with the divorcing spouse. Secondly,
depending on the circumstances surrounding the breakup, for
example infidelity on the part of the ex-spouse, could lead the father
into seeking revenge against the ex-spouse by way of attempting to
gain custody of the children. Revenge as motivation for fathers to
63


seek custody has been supported in research (Gersick, 1979;
Warshak, 1992). A possible explanation for fathers to be more likely
to be seeking custody of children of the opposite sex, in court is that
theoretically mothers would be less likely to negotiate or relinquish
custody of daughters than sons, outside of court. This may indicate
but, would need support from further research, that the gender of the
child is an important variable in custody negotiations (Grief and
Demaris, 1989).
There are many myths regarding single custodial fathers.
Meyer and Garasky (1993) identified five common myths attributed to
custodial fathers, there are very few father only families, most
custodial fathers have remarried, many custodial fathers are widowers
and very few have never married, custodial fathers have high
incomes, and fathers primarily receive custody of older boys.
Research findings, though, dispute these myths. While the absolute
number of father-only families is still a fraction of all families with
children (about 4%) father-only families have been increasing
dramatically in percentage (Meyer and Garasky, 1993). Meyer and
Garasky, using data collected by the Survey of Income and Program
Participation (SIPP), a nationally representative, multi-panel
64


longitudinal survey measuring economic and demographic
characteristics of panel respondents over a 2 1/2 year period. These
researchers found within the SIPP sample, 592,000 fathers who were
currently re-married and had custody of their children. In addition to
these fathers were 858,000 single father families. Thus, the majority
of custodial fathers (59%) were unmarried. In addressing the myth
that many custodial fathers are widowers and few have never been
married, Meyer and Garasky (1993) found that between 1970 and
1990 the number of children living with never married fathers
increased dramatically, from 32,000 to 488,000 while the number
living with widowers decreased between 1970 and 1980 from 262,000
to 488,000. The number of children living with divorced fathers
increased during this period from 168,000 to 1,004,000. Currently, of
the children living in father-headed single families approximately
7.5% are in households headed by widowers and 24.5% are in
households headed by never-married fathers. In assessing the myth
that custodial father have high incomes, Meyer and Garasky (1993)
found that father-only families do have substantially higher incomes
than mother-only families. In 1989 mother-only families had a mean
personal income of 12,959, compared to a mean personal income of
65


24,178 for father-only families. Although, the income of father-only
families is significantly higher than mother-only families, a significant
number of father-only families live in poverty. In 1989 it was estimated
that 18.2% of father-only families, with children under eighteen are
poor, with almost half of these having family incomes less than half of
the poverty line.


CHAPTER 3
METHODS
Data used in this study come from the first part (Study I) of the
Stanford Child Custody Project conducted by Maccoby, Mnookin, and
Depner between the years 1984 and 1990. Study I is a three-wave,
longitudinal study focusing on post-divorce child custody
arrangements. In the sample, there were 1,124 families who filed for
divorce in two California counties, San Mateo and Santa Clara,
between September 1984 and April 1985. All of these families had at
least one child under the age of 16 at the beginning of the study.
Sample and Procedure
In this study, researchers followed a cohort of families who
initiated the divorce process at approximately the same time. Three
separate telephone interviews were conducted with the parents over
a three-year period. The first interview (Time 1) took place shortly
after the petition for divorce was filed, on an average about 6 months
after separation. The second interview (Time 2) occurred one year
67


after the first when many of the divorces had been completed. Two
years after Time 2, the third interview (Time 3) was conducted. At
Time 3, protracted divorce proceedings were coming to an end and
sufficient time had passed for families to establish new routines and
relationships. As all participants followed the same timetable, the use
of the cohort design enabled the researchers to observe the status of
families across a comparable set of marker points and ensured that
differences between groups were not simply attributable to variation
in time since the divorce.
Investigators desired participation of both parents in the study,
however to eliminate any kind of bias, this was not required. Of the
1,124 families in the Time 1 data collection, 44% had both parents
participating, 39% had only the mothers participating, and 17% had
only fathers involved. The most common reason for one-parent
participation was the inability to locate the second parent. At Time 3,
a concerted effort was made to locate non-resident parents who were
not previously interviewed, and an additional 43 mothers and 110
fathers were included at the Time 3 wave of the study.
Of the 6,685 petitions for divorce only 2,286 met the eligibility
criteria. Out of these families that appeared to be eligible from the
68


initial court records, 1,966 met the criteria for target families.
Researchers located at least one parent in 1,395 of these eligible
families and recruited 1,124 into the study. There were 41 families in
which both parents refused to participate. This resulted in a refusal
rate of 3 percent. At Time 2, of the 1,072 eligible families (mainly due
to reconciliation), 5% could not be located and again an approximate
3 percent refused to participate, leaving 978 families in the sample.
Finally, at Time 3, an estimated 1,002 families were eligible to be
interviewed. Of these about 7 percent could not be located and 1.5
percent refused to be interviewed. Therefore, at this wave 917
families were interviewed.
A comparison of families who were recruited into the study and
eligible families who did not participate revealed that these families
were similar in family size and the gender of children. Additionally,
these two groups did not differ significantly in the length of the divorce
proceedings, the likelihood of being awarded child support, or the
amount of such awards, although an investigation of court records
suggested that the proportion of unresolved divorces at the close of
the study was higher among the non-recruited families. On the other
hand, recruited families were less likely than non-recruited to leave
69


legal custody requests unspecified and more likely to request both
joint legal custody and joint physical custody. Therefore, in these
families there appeared to be a joint custody bias. Furthermore, in
the recruited families, children were more likely to spend substantial
time in both parental households rather than just in one parents.
These findings indicate that the final sample includes a somewhat
higher proportion of families who prefer to share childrearing
responsibilities than would be found among all divorcing families.
In this study, the investigators were successful in recruiting
subjects with dispersed family characteristics including the age,
number, and sex of the children and the socio-demographic status of
parents. Moreover, the ethnic composition of the sample is similar to
that of the counties from which it was drawn. African-Americans,
Asian-Americans, and Native Americans are included in small
proportions. Hispanics are the only minority group that is large
enough (12%) to permit any comparative analyses.
Data were collected from survey interviews. Each interview
lasted approximately one hour. Telephone interviewing was the
primary mode of data collection, however, face-to-face interviews and
mail questionnaires were made available to respondents in order to
70


maximize participation rates. Questionnaires were administered to at
least one parent in each target family. Whenever possible, both
parents were interviewed; but, when only one parent was available,
information on the missing parent was provided by the participating
parent. In addition to the interviews, further information was obtained
from the court records for 933 divorces that were completed by
September 1989. Researchers conducted a content analysis of the
court records of the divorce proceedings and coded information about
the duration of divorce proceedings, the involvement of third parties
(such as attorneys and mediators), contested issues and their
resolution, and the terms of the final judgment.
Sample Characteristics
In this research, a study sample was created from the original
one by including only those cases where there was a 3rd interview
year indicated for both, mothers and fathers. This new sample
consisted of 525 cases.
The mean age in this sample was 34.82 for fathers with a
range of [27-57] and 32.22 for mothers with a range of [19-52]. Based
71


on information only from mothers, before separation the average
length of marriage was 9.56 years with a range of [1-27].
When the race/ethnicity distribution was studied, 84.3% of the
mothers and 86.1% of the fathers fell into Anglo category. The
race/ethnicity distribution for the rest of the mothers and fathers was
as follows: 2% of the mothers were African-American, .2% Native
American, 3.5% Asian-American, .4% Filipino, .8% Puerto Rican,
6.1% Mexican-American, and 2.8% other Hispanic. On the other
hand, 1.2% of the fathers were African-American, .2% Native
American, 4.5% Asian-American, .2% Filipino, .6% Puerto Rican,
5.5% Mexican-American, and 1.8% other Hispanic.
Out of these mothers, only 5.2% did not graduate from high-
school. Almost 25% (24.7%) of them graduated from high-school,
44.2% had some college or trade/business/technical school
experience, 12.6% graduated from college, 6.5% completed a
graduate degree, and 6.7% had some graduate or professional
training. On the other hand, 4.6% of these fathers did not graduate
from high-school, 18.8% graduated from high-school, 38.7% had
some college or trade/business/technical school experience, 16.3%
72


graduated from college, 15.4% completed a graduate degree, and
6.1% had some graduate or professional training.
At the first wave of the study (Time 1), according to the court
records, 93.3% of the fathers and 81.8% of the mothers worked
outside of the home (for wages or salary). At Time 2, 94.2% of the
fathers and 85.7% of the mothers and at Time 3, 93.7% of the fathers
and 84.6% of the mothers worked outside of the home. Court records
indicated that at Time 3, the average family income (own + support)
for fathers was $ 38,143.1 and for mothers it was $ 23,596.5. More
than 2/3rds of the families in this sample (65.9%), owned a family
home during their marriage.
At Time 3, 52.5% of the fathers indicated that they did not have
a live-in partner, 23.1% indicated that they had a live-in partner, and
24.4% indicated that they had been already remarried. On the other
hand, 54.6% of the mothers reported that they did not have a live-in
partner, 21.5% reported that they had a live-in partner, and 23.9%
had already remarried. Only 17.2% of all the mothers and 15.4% of
all the fathers indicated that they were not dating at the time of the
survey.
73


For the remarried fathers, according to T3 court records, the
average family income (own + support) was $ 41,969 but for the
mothers it was only $ 19,969. Even though 73.9% of the remarried
fathers had anywhere from high-school to college education, 84.6% of
the mothers were in that category.
74


CHAPTER 4
RESULTS: STUDY SAMPLE
When asked whether their divorce was final at this third time,
94.9% of the fathers and 95.8% of the mothers said yes. For five
cases among fathers and for only one case among mothers this
information was missing. Excluding the missing cases, 62.3% of the
mothers and 34.5% of the fathers claimed that they were the ones
who filed for divorce. However, only 34.1% of the mothers reported
that they were the ones who first wanted out of marriage as opposed
to 59.9% of the fathers.
Court records showed the legal and physical custody decree
each parent requested and the legal and physical custody decreed in
the divorce. Table 4.1 displays these results.
75


Table 4.1. Requested and Decreed Custody (Court Records) in Valid
Percentages
FATHERS REQUESTS MOTHERS REQUESTS COURT DECREE
Physical Legal Physical Legal Physical Legal
Sole M 31.1 3.4 82.7 22.7 61.7 10.9
Sole F 19.9 3.8 1.9 0.0 7.3 0.9
Joint 49.0 92.8 15.4 77.3 27.1 87.8
Split 0.0 0.0 0.0 0.0 3.0 0.4
Total 100.0 100.0 100.0 100.0 100.0 100.0
Only 37% of the fathers who requested sole physical custody
and 24% of the fathers who requested sole legal custody obtained
court awards accordingly. However, sole physical custody was
granted to 75% of the mothers who requested it and close to half
(48%) of the mothers who requested sole legal custody obtained it.
Whereas 31.1% of the fathers requested that mothers be awarded
with the sole physical custody, 1.9% of the mothers requested that
fathers be given the sole physical custody. On the other hand, few
fathers (3.4%) and none of the mothers requested that the legal
custody should be given to the other parent. Joint custody awards,
except for fathers who requested joint physical custody, exceeded
fathers and mothers requests by far. Even though none of the
parents requested split custody, according to the court decisions, in
76


18 cases the decision was split physical custody and in 2 cases split
legal custody.
What mothers and fathers desired in terms of physical and
legal custody was compared to what they requested on the court
form. With the exception of joint legal custody, fewer fathers actually
requested sole legal custody, sole physical custody, and joint physical
custody than the ones who reported desiring these types. This
desire/request discrepancy was especially evident for the fathers
when it came to sole legal custody; only 23% of the fathers who
desired sole legal custody, requested this custody option on the court
form. For mothers, the desire/request discrepancy was considerably
smaller. Almost all of the mothers (99.5%) who desired sole physical
custody, requested so, whereas out of all the fathers who desired sole
physical custody, 63% requested it. Out of all mothers who desired
sole legal custody, 73% requested it. Mothers and fathers requested
joint custody options, both physical and legal, more times than they
desired them. This discrepancy was the biggest for the fathers
requesting joint legal custody and smallest for the mothers requesting
joint physical custody.
77


At T1, each respondent was asked about his/her involvement
(whenever applicable) with child 1, child 2, and child 3 before and
since separation and then was asked to assess the spouses
involvement for these two time periods. Involvement with the child
was measured on a scale from 1 to 10 where 1 indicated low and 10
indicated high involvement. Table 4.2 displays these results.
Table 4.2. Parents Mean Involvement With Children Before and
Since Separation
Before Separation Since Separation
F FM M ME F FM M ME

Child 1 7.33 6.60 8.89 8.55 7.93 7.54 4.65 4.67
Child 2 7.14 6.39 8.99 8.67 7.77 7.23 4.41 4.21
Child 6.85 6.55 8.63 8.46 7.30 6.50 4.22 4.47
3
F=father, FM=father about mother, M=mother, MF=mother about
father___________________________________________________________
involvement; 1=lowto 10=high________________________________-
According to fathers their involvement with the children
increased after separation. In contrast to them, mothers reported that
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their own involvement with the children drastically decreased since
separation. How spouses perceived each others involvement with
the children, before and after separation, showed remarkable
differences compared to what they reported about themselves.
Fathers perceived mothers involvement either increased or stayed
the same after the separation, however, according to mothers,
fathers involvement profoundly decreased after separation.
Based on the fathers custody requests, as shown in the court
records, the sample was divided into four:
1. fathers who requested sole or joint legal custody,
2. fathers who requested joint or sole physical custody,
3. fathers who requested mother sole legal custody, and
4. fathers who requested mother sole physical custody. When
involvement with children were examined in these samples, then,
an interesting pattern emerged. In 1. according to fathers, their
involvement with the children before and since separation did not
show any differences when compared to the study sample.
However, mothers rated fathers involvement since separation
slightly higher than they did in the study sample. In 2. fathers
perceived themselves as being slightly less involved with the
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children after separation, however, mothers again perceived them
as being more involved than they did in the study sample. In 3.
fathers perceptions of their own involvement were comparable to
the study sample; this time mothers gave them much lower ratings
when involvement since separation was in question. In 4. fathers
stated that since separation their involvement with the children
increased more compared to the study sample. On the other
hand, mothers perceived them as being less involved at both
times, before and after separation. As a matter of fact, in this set,
mothers perceived scores for fathers involvement after the
separation were the lowest for fathers after the separation.
Based on the court records, with the exception of 60 missing
cases, almost half of the cases (49.7%) were uncontested, 28.7% of
the cases were not uncontested but were settled, and 1.7% of the
cases were decided by the judge. For the remaining cases, court
records indicated that either mediation or evaluation were needed
(7.1% and 3.0%, respectively). A subsample of cases, 371 cases, in
which the level of the legal process was either uncontested or settled
(but not uncontested) or decided by the judge was selected. When
these fathers were asked 13.9% reported being the custodial parent
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and when the mothers were asked 88.3% reported being the custodial
parent. Slightly less than 10% of the time, fathers stated that they
were the visiting parent who did not visit, whereas only one mother
was in that situation. Based on a normal 2 week period, 86.1% of the
time, fathers stated that they had the child 0-10 overnights. The
custodial fathers (13.9% or 48 fathers) were the only ones who had
the child 11 or more overnights.
In the study sample (with 525 cases), when the court decree
was mother legal sole custody or mother physical sole custody, then
95.9% of the time in mother legal and 96% of the time in mother
physical custody cases fathers had the child 0-10 overnights.
However, when the court decree indicated joint legal and/or father
legal custody or joint physical and/or father physical custody, then
fathers had the child 11 or more overnights 12.3% of the time and
24.7% of the time, respectively.
Legal Issues
In this study, knowing ones legal rights was measured on a
scale of 1 to 10 (1=knows nothing to 10=knows a lot). From T1 to T2
fathers and mothers perceived themselves as getting better in terms
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of knowing their legal rights; from an average of 6.00 to 6.37 for
fathers and from an average of 5.86 to 6.43 for mothers. They also
perceived that their spouses knew their legal rights more in T2 than in
T1. However, at both time periods, spouses perceived that
respondents knew less than what the respondents claimed to know. It
should be noted that none of these differences were statistically
significant.
When applicable and determinable, the court records revealed
that in 60.1% of these cases fathers had a lawyer, whereas in 74.8%
of these cases mothers had a lawyer. A difference of proportions test
showed that significantly more mothers than fathers
(z=4,84 at a=0.01) reported having a lawyer.
At T3, respondents were asked how satisfied they were with
their lawyers services (1=very dissatisfied 10=very satisfied), the
mean for men was 5.95 and for women it was 6.36; there was no
statistical difference between these means (t=.31, p > .05). Using the
same scale, respondents then rated their satisfaction with the legal
system of divorce. This time, the means for men and women were
4.59 and 5.48, respectively. Even though these means for fathers
and mothers did not differ from one another statistically (t=.28, p >
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.05), it should be noted that slightly more than twice as many mothers
than fathers said that they were very satisfied (8.6% of the fathers as
opposed to 17.7% of the mothers).
When it came assessing the spouses lawyer at (T3), men and
women did not differ much except in one category. That is,
approximately same percent of men and women reported that the
spouses lawyers made things easier (52.2% men and 59.1% women)
and that spouses lawyer had no effect on reaching an agreement
(39.1% men and 36.4% women). However, almost twice as many
men than women thought that spouses lawyer made it more difficult
to reach an agreement (8.7 men and 4.5% women).
Lawyers and Custody Issues
In the divorce proceedings, lawyers usually play a significant
role regarding custody and visitation arrangements. Table 4.3
displays the results of how helpful fathers and mothers found their
lawyers specifically in custody decisions at T3.
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Table 4.3. Help from Lawyers in Custody
50
not at all little some a lot
Help Received
Difference of proportions tests indicated that men and women
significantly differed from one another in 2 categories. More men
than women reported that their lawyer helped not at all in terms of
deciding custody (z=8, p < .001), and more women than men reported
that their lawyers helped a lot in term of deciding custody
(z=5.52, p < .001). Data were available to check this information at
T1 and T2; similar patterns were observed.
Based on the court records providing the information as to
which parent had legal representation during the divorce
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proceedings, the sample was divided into four groups: 1. neither
parent had a lawyer, 2. only the mother had a lawyer, 3. only the
father had a lawyer, 4. both parents had lawyers. Then the pattern of
custody requests and outcomes were examined for each group.
In 77 cases (14.67%) neither parents had a lawyer, on the
other hand in 243 cases (46.29%) both parents had lawyers. When
only one parent had a lawyer, that parent was much more likely to be
the mother (21.14%) than the father (8.19%); this discrepancy was
statistically significant (z=7.14, p < .01). Maccoby and Mnookin
(1992) showed that this disparity, which was also obtained in the
larger sample they studied, resulted from the petitioners being more
likely represented by lawyers. As in their sample, in this studys
sample also more mothers than fathers reported that they filed for
divorce (62.3% of the mothers and 34.5% of the fathers). Court
records confirmed this information; in 64.9% of the cases the mother
and in 35.1% of the cases the fathers actually petitioned for divorce.
In cases in which both parents were legally represented, the
outcome involved joint legal custody 94% of the time. On the
contrary, joint legal custody was awarded to 68% of the time to
families in which neither parent had a lawyer. Whereas 91% of the
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time joint legal custody was awarded when only the father had a
lawyer, only 79% of the time this was the case when only the mother
had a lawyer.
The role of lawyers in custody decisions were examined in
physical and legal custody court decrees. When neither parent had a
lawyer then 26.7% of the time sole legal custody and 59.5% of the
time sole physical custody was awarded to the mother. In this case,
1.3% of the time sole legal custody and 8.1% of the time sole physical
custody was given to the father. Almost 70% (69.3%) of the time the
decision was joint legal custody and 28.4% of the time it was joint
physical custody. When both parents had lawyers, then mothers
were awarded with sole legal custody and sole physical custody 3.8%
and 54.9% of the time, respectively. In none of the cases were
fathers given sole legal but in 5.5% of the time they were awarded
with sole physical custody. On the other hand, 96.2% of the time the
courts decision was joint legal and 35.0% of the time it was joint
physical custody. In cases when only the father had lawyer
representation, then 7% of the time the decision was sole legal
custody to the father and 26.2% of the time it was sole physical
custody to the father. Joint legal custody was awarded 90.7% of the
86


time and joint physical custody was awarded 19.0% of the time. With
only mother having legal representation, the court decrees showed
that 18.5% of the time mothers were given sole legal and 82.4% of
the time sole physical custody. None of the fathers were awarded
with sole legal custody, however, in 3.7% of the cases the decision
was father sole physical custody. In 81.5% of the cases the court
decided in favor of joint legal custody and in 12.0% of the cases in
favor of joint physical custody. Figures 4.1 and 4.2 display these
results.
Figure 4.1. Presence of Lawyers and Legal Custody Decrees
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Figure 4.2. Presence of Lawyers and Physical Custody Decrees
The presence of lawyers also affected legal and physical
custody requests. In cases where both parents had legal
representation, parents requested legal joint custody more often than
when neither parent had a lawyer. Fathers followed this trend also
with joint physical custody requests. However, when neither parents
had any legal representation, then more mothers requested joint
physical custody compared to when both parents had legal
representation. When the father had a lawyer and the mother did not,
then mothers requested joint legal custody 100.00% of the time.
88