Non-Custodial Mothers Developing Strategies of Support

Journal article

By: Joyce A. Anditti and Debra A. Madden-Derdich

Date: 1993

Source: Anditti, Joyce A. and Debra A. Madden-Derdich. "Non Custodial Mothers Developing Strategies in Support." Family Relations: Interdisciplinary Journal of Applied Family Studies 42 (1993): 305-314.

About the Author: The journal Family Relations has been published since 1951 by the National Council on Family Relations (NCFR), based in Minneapolis, Minnesota. The stated mission of the NCFR is to promote family well-being through the dissemination of knowledge about families and family relationships.

INTRODUCTION

In the United States through the early 1900s, the only law that generally governed the breakdown of a marital relationship was the law of divorce. Divorce carried with it a significant social and religious stigma; in many religious faiths a divorced person was not permitted to re-marry with the blessing of his or her church. Divorce laws in virtually every American state in 1920 provided that the issuance of a divorce decree was restricted to the proof of fault by one marriage partner; adultery and desertion were the most commonly advanced grounds.

At the same time, married women had few advanced educational and employment opportunities beyond the confines of the family structure, a circumstance that significantly limited the ability of women to leave a marriage that was unhappy or otherwise contrary to their private interests.

There was also a corresponding expectation that in the event of a divorce being granted, the custody of the children of the marriage inevitably would be the responsibility of the mother. It was expected that the mother would simply continue the chief parenting duties that had been discharged by her during the marriage. Custody claims by the father were rare.

The broadening of divorce availability in the 1960s to include grounds that acknowledged the consent of the marriage partners, otherwise known as no-fault divorce, was a significant impetus to the development of family law as a distinct legal discipline and area of academic study. The rise of feminism, an increase in the number of persons living in common law relationships, the blending of families through remarriage, and the legislative promotion of equality in both the provision of support and the division of matrimonial property between divorced spouses also contributed to this legal development.

With the increase in the divorce rate in the United States into the 1980s (the statistical peak in the divorce rate was reached in 1980), there was a parallel expansion in the number of circumstances where the father of the subject children advanced a custody claim. The rise of two income families contributed to making the notion of the custodial father more socially acceptable. A number of child custody cases litigated the issue of whether mothers were inherently better caregivers and custodial candidates than fathers, with no clear precedent ever established on the point in the face of significant and often contradictory scientific data. Most jurisdictions enacted laws that entrenched the legal proposition that the 'best interest of the child' was the operative test to determine child custody in such cases. A child's best interests could include virtually any factor that impacted upon the child's general well being, including financial, social, residential, and educational circumstances; the relationship with each parent and the respective parents plans for the ongoing care of the child were at the heart of this legal test.

Kramer v. Kramer was the critically acclaimed American film produced in 1979 that epitomized the nature of the custodial battles in which parties to a divorce action became engaged. Kramer v. Kramer was a particularly topical work, made at a time when divorce had become an accepted outcome of marriage.

PRIMARY SOURCE

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SIGNIFICANCE

The above excerpt sets out the explanations tendered by a number of women as to why they had either not pursued or had relinquished child custody to their former spouses. In every case, it is apparent that the decision was not imposed by a court after the hearing of evidence as to the best interests of the child or children concerned. The decisions reflected in the excerpt are instead motivated by extra-legal factors, including the alleged manipulation of the children by their father, a lack of financial resources on the part of the non-custodial mother, and family pressures.

Since the publication of the article in 1993, the percentage of non-custodial mothers in American family structures has remained fairly constant at approximately 10 percent. The exact percentage cannot be determined due to the number of relationships, both legal marriages and those created by common law, where custody, access and child support issues are settled informally and are not the subject of a court order. While there are significant income tax consequences regarding the deductibility of child support payment from the payer's taxable income that motivate a formal court order or legal agreement, its is estimated that the custody of approximately five percent of all children whose parents are separated is governed informally.

The emotional impact of divorce and child custody disputes upon the litigants has driven the rise of alternative methods of dispute resolution since 1993, where the parties agree to attempt to settle their legal action without trial. Mediation has been a popular route to resolve child custody matters throughout North America for two general reasons. It is first a means of sparing the expense, disruption, and potential embarrassment to the litigants that is commonly associated with a public court battle. Secondly, mediations are often a useful forum in which to privately air before an independent nominee the types of issues described in the excerpt as the reasons why the mother did not pursue custody, such as suggested intimidation, "guilt trips" imposed upon on the children, and other potentially emotional issues.

Collaborative divorce is a further extension of the alternatives to divorce litigation developed in North America that have gained widespread acceptance since 2000. A collaborative divorce process is generally a cross-disciplinary approach and it may engage the services of lawyers, financial planners, child psychologists, and other experts to assist the parties in reaching an entirely negotiated resolution of all issues arising from the end of their marriage, including child custody, access, and support. The proponents of collaborative divorce refer to the process as family-based; it is evident from the excerpt that no matter who was legally correct respecting the child custody issue, the lingering emotional damage to the non-custodial mother remained.

No matter how an agreement is achieved between the parties regarding child custody, all common law jurisdictions provide that the agreement will be incorporated into the final court order governing custody. As a general rule of family law, such orders can only be revised where the parties enter into a further consent agreement or where a judge determines that there has been a material change in the circumstances of the parents or the child to warrant a change in the custodial status. Such actions are traditionally difficult to maintain as the longer a child has resided with a custodial parent, the less inclined courts are to alter the arrangements.

For these reasons, the difficulties mentioned by the non-custodial mothers in the excerpt are unlikely to ever form an appropriate basis to revise their non custodial parent status. Absent misconduct by the custodial father, the wishes of the child expressed as the child grows older is the most common basis to rework child custody arrangements.

FURTHER RESOURCES

Books

Boland, Mary L., and Brette McWhorter Sember. Visitation Handbook. Naperville, Ill.; Sourcebooks, 2002.

Schepard, Andrew I. Children, Courts and Custody. New York: Cambridge University Press, 2006.

Periodicals

Ellis, Elizabeth M. "What Have We Learned from 30 Years of Research on Families in Divorce Conflict." Trowbridge Foundation Report 2 (3) (2001).

Web site

Department of Justice Canada. "Overview and Assessment of Approaches to Access Enforcement." 2001 〈http://www.justice.gc.ca/en/ps/pad/reports/2001-FCY-8/nature2.html〉 (accessed June 20, 2006).