Does Joint Legal Custody Matter?

Home , Contact (law), Joint custody, Joint custody (Spain), Sole custody

by Catherine R. Albiston Eleanor E. Maccoby Robert R. Mnookin

Joint Legal Custody Under California law, par- is neit ter the child."2 This was distinct from ents awarded joint legal custody 1 the legislative definition of joint possess equal authority to make sobtio to the physical custody as "each of the decisions about their children, problem 0 divorce parents... [having] significant even if one parent has sole physi- f periods of physical custody," and cal custody and the children live nor a ca:alyst for the importance of maintaining "frequent and continuing con- primarily with that parent. increasing conflict in 3 While the distinction between tact with both parents." Since joint legal and joint physical divorcin families. 1979, many other states have custody was first alluded to in enacted statutes concerning 1979 California legislation,' a joint custody, but most of these 1983 amendment explicitly de- do not explicitly distinguish fined joint legal custody to mean "both parents shall between joint legal or joint physical custody.4 share the right and responsibility to make decisions Joint legal custody has become very common in relating to the health, education, and welfare of the California. In data reported elsewhere s 79 percent of families in the study presented in this article had joint Ms. Albiston is a research assistantfor the Stanford Child Custody legal custody decrees. Joint physical custody decrees, Study at the Stanford Centerfor the Study of Families, Children, and however, were much less common as only about twenty Youth. Ms. Maccoby is the BarbaraKimball Browning Professor of percent of these families had joint physical custody Psychology, Emerita, and CooperatingProfessorof Law, StanfordLaw decrees. While joint legal custody has become com- School. Mr. Mnooldn is the Adelbert H. Sweet Professor of Law, Stanford Law School. The authors gratefully acknowledge the mon, it is unclear whether it has any impact on par- contribution of Dr. CharleneDepner in directing the Stanford Child ents' behavior. It is the purpose of this article to ad- Custody Study. dress this question. @ 1990 EleanorE. Maccoby and Robert R. Mnookin. Joint legal custody is consistent with two

SPRING 1990 ALBISTON, MACCOBY & MNOOKIN ideological trends in family law reform: the shift from physical custody agreement, and the actual residen- fault-based grounds for divorce to no-fault legislative tial arrangement for the child. It is important to in- reform, and gender-neutral revisions in custody law. vestigate the three forms of joint custody separately First, in fault-based divorce proceedings custody was to understand the implications of each for the func- awarded to the "innocent" party, and neither equity tioning of the post-divorce family." The effects of nor the interests of the child were relevant to this joint legal custody alone, isolated from any effects of decision. States no longer require fault-based grounds physical custody decrees or actual residential arrange- for divorce, however, and the punitive award of cus- ments, are discussed here. tody through the determination of fault is no longer valid. Awarding joint legal custody is consistent with CLAIMS ABOUT JOINT LEGAL CUSTODY the egalitarian objectives of no-fault reform, as it does Parent-ChildContact not require a custody decision in favor of one parent Aside from its ideological attractions, many claims only, but is considered to be an equitable way, short have been made about the benefits of joint legal cus- of Solomon's sword, of dividing children between tody. First, advocates of joint legal custody argue that parents. Critics argue, however, that rather than being the formal designation of legal custody strengthens an equitable division, joint legal custody is a non- or maintains nonresidential parents' commitment to decision and side-steps the issue of custody without their children, and that this increased commitment resolving who will be responsible for the children. increases nonresidential parents' visitation with their Second, joint legal custody is consistent with children. Some research has indicated that fathers gender-neutral revisions in custody law. In the past, with joint legal custody have more contact with their gender-specific criteria for the award of custody fa- children, are more involved in activities with their vored fathers when children were considered prop- children, and share parental responsibilities to a greater degree than fathers without legal custody."2 Proponents of joint legal custody argue that it Advocates of joint legal increases the nonresidential parents' involvement and influence in the lives of their children and that such custody believe that involvement is desirable.' 3 Prior to the distinction in communication between California law between legal and physical custody, an parents about the child award of sole custody could mean one parent's loss of control over such decisions as medical care, religious encourages a positive training, and schooling for his or her child. Now an coparenting relationship. equal role is possible for nonresidential parents in decisions concerning their children. Furthermore, the recognition and exercise of this role may lessen erty, and mothers under the maternal presumption or the negative connotations associated with being a "tender years" doctrine. California law now specifi- noncustodial parent and keep these parents more cally prohibits using the gender of a parent as a basis involved in the major events of their childrens lives. for a preference concerning custody,6 and fathers' rights activists and feminists alike view gender-based Communication Between Parents standards as discrimination.7 Feminists, however, are The second argument is that joint legal custody, divided on the issue of gender-neutral custody stan- by requiring communication and cooperation between dards and joint custody. Some advocate changes in parents to make decisions concerning the child, en- social ideology through joint custody legislation,8 courages parents to develop a positive coparenting whereas others fear the consequences of such legisla- relationship.' 4 If joint legal custody does promote tion for women's bargaining power in divorce nego- children's visitation with the nonresidential parent, tiations and for the welfare of children.9 more cooperation may be required between parents Widespread advocacy and legislation of joint to manage the logistics of this visitation. Luepnitz custody largely preceded research on its consequences found that parents with joint custody reported greater for post-divorce families, and subsequent research cooperation than parents with sole custody, 5 and Il- concerning joint custody has been limited and of feld, Ilfeld, and Alexander found that relitigation rates 0 varied design.' There are actually three aspects of for joint legal custody families were half those for sole joint custody: the legal custody agreement, the legal custody families, suggesting that joint custody

STANFORD LAW & POLICY REVIEW JOINT LEGAL CUSTODY

reduces parental conflict.16 Phear et al., however, factors that may be related to choosing joint legal found that joint legal custody cases were significantly custody and also affect the dependent measures cho- more likely to relitigate custody than cases with sole sen by the researcher. For example, 17 parents who are legal custody. more cooperative and less hostile at the time of Critics of the argument that joint legal custody separation may be more likely to choose joint legal reduces parental conflict point out that the necessity custody, and also more likely to have a good copar- of communicating and continuing the relationship enting relationship after divorce. Similarly, joint legal with a former spouse may be a cause of stress between custody fathers may be more likely to pay their child parents.'8 Joint legal custody may give responsibility support than mother legal custody fathers because for the child to one parent, the physical custodian, they are more affluent and can afford to do so. Fi- and preserve the nonresidential parent's right to nally, some fathers may choose joint legal custody meddle in the residential parent's affairs. For ex- and spend more time with their children after di- ample, after a residential custodian remarries, the vorce because they were more involved with their nonresidential parent may suddenly take an interest children at the time of separation than fathers who in decisions concerning the child, either because of choose mother legal custody. Many studies attribute differences in outcomes between the different custodial arrangements to the arrangements themselves, I Previous studies have not without investigating possible underlying causes re- controlled for factors related lated to self-selection in joint legal custody families. to choosing joint legal custody. SAMPLE AND METHOD The Stanford Child Custody Study is a five year longitudinal study involving 1,124 California fami- fears of being replaced or a desire to interfere in the lies who filed for divorce between September 1984 new marriage. Additionally, as Grove cautions, joint and March 1985. Families were required to meet legal custody may cause problems when parents bring three eligibility requirements: 1) the petition had to different values to decisions about their children, for be filed between September 1, 1984 and March 31, example, deciding whether a pregnant teenage daugh- 1985 in Santa Clara or San Mateo County; 2) the ter may have an abortion.1 9 family had to have at least one child under 16 years of age at the time of the filing; and 3) the couple could Payment of Child Support have been separated no more than 13 months at the A third argument in favor ofjoint legal custody is time of the filing. 3 Information was obtained from that it strengthens the bond between nonresidential two sources: 1) court records for families with com- fathers and their children, emphasizing fathers' re- pleted divorces, and 2) three rounds of structured sponsibilities and encouraging them to pay more of telephone interviews with parents that lasted approxi- the child support they owe. In some studies, fathers mately one hour each. 4 Data from the court record with joint legal custody show higher compliance with included information about the custody requests of support awards than fathers where the mother has the parents, the final custody outcome for the family, sole legal custody? In addition, if fathers with joint and whether the case had been referred to mediation legal custody do in fact spend more time with their or evaluation. The parent interviews focused on the children, they may have more opportunities to pay decision process of the divorcing couple concerning for extra expenses above and beyond the formal child custody and visitation arrangements, and family func- 21 support award. Therefore, joint legal custody may tioning following separation. The first parent inter- allow fathers greater flexibility in how they support view (Time 1) took place on average six months after their children. Some caution, however, that a legal the parents had separated. The second interview preference for joint legal custody may have a nega- (Time 2) took place one and one-half years after sepa- tive impact on financial outcomes if, in the negotia- ration, and the third interview (Time 3) took place tion process, mothers give up financial security in the approximately three and one-half years after separa- form of child support to keep sole legal custody of tion. their children." Data are presented for families who received a The limitation of most existing research concern- final divorce decree determining custody of the chil- ing joint legal custody is that it does not control for dren by September 1989, and who had an interview

SPRING 1990 ALBISTON, MACCOBY & MNOOKIN with at least one parent at Time 3. To investigate the Within the sample of mother residential families, effects of legal custody separately from the effects of those with mother legal custody tended to have lower changing de facto residential patterns, the sample father incomes than those with joint legal custody.26 was further restricted to families in which the In particular, there were only two families in the children's de facto residence was with the mother at mother legal custody group where the father's annual Time 3.25 To determine whether joint legal custody income was above $70,000, making comparisons with made a difference for these families, families with the joint legal custody group above this income level joint legal custody were then compared to those with difficult. To address this problem, families in which mother legal custody on a number of dependent the father had an annual income of more than $70,000 measures. The analyses were restricted to families were excluded from the analyses. Families were then with mother physical custody decrees because the divided into three income categories: (a) between $0 number of families with father physical custody de- and $15,000, (b) $15,000 to $30,000, and (c) $30,000 crees was very small (N=80) and few residential fa- to $70,000. In this way an initial control was pro- thers also had sole legal custody (N= 17). The mother vided for the effect of income on our dependent residence sample provided a much better comparison, measures, and the two legal custody groups could be as 328 of these families had joint legal custody decrees compared at all three income levels. and 121 families had mother legal custody decrees. MEASURES Involvement Table 1. Self-Selection Factors in Legal Custody Agreements There were three primary measures of in- Mother Physical Mother Physical volvement: overnight Joint Legal Mother' Legal t statistic visitation, father's contact (including non-over- Father's Overnight 1.2 0.6 4.04* night visitation), and Visitation at Time 1 (288) (115 father's involvement in Father's Hostility 5.2 4.3 2.13* decision making. Over- at Time 1 (125) (39) night visitation was measured as the number Mother's Hostility 5.7 -2.52** of nights the child spent at Time 1 (205) with the father in a typical two-week period, us- Father's Income $30,889 $25,,527 2.14* ing information from at Time 3 (231) (72) parent interviews. In addition to overnights, a Mother's Income $19,027 $18,751 0.15 (ns) scale of father's contact at Time 3 (282) (11( ranging from no contact 5** to some overnight visita- Father has a 30% 19% 24 tion was constructed College Degree (301) (11 from the interview visi- Mother has a 21% 16% 1.16 (ns) tation information. College Degree (301) (119 To examine shared decision making, at Father is Employed 90% 819 1.94* Time 3 interview parents at Time 3 (286) (94) were asked how often they talked with each Mother is Employed 83% 759 1.72t other about such every- at Time 3 (298) (116) day issues as the child's school progress, extracur- * :<.05 *** <.0001 ricular activities, and responsibilities and privileges. Parents also indi-

STANFORD LAW & POLICY REVIEW JOINT LEGAL CUSTODY cated if any major decisions about religious training, communication), "Disengaged" (low discord and low schooling, or medical treatment for a serious illness cooperative communication), and "Mixed" (high had been made since the separation. Finally, parents cooperative communication and high discord).2 8 rated on a five-point scale the nonresidential par- As an additional measure of the parental rela- ents' involvement in both everyday and major deci- tionship, interviewers rated on a 10-point scale re- sions, where one was "the nonresidential parent is spondents' hostility toward their spouses at both usually not informed" and five was "both parents are Time 1 and Time 3. A family level hostility score was equally involved in the decision." constructed by taking the mean of the parents' scores. If only one parent was interviewed, that parent's score ParentalRelationship became the family's score. Maccoby, Depner, and Mnookin, using a larger subsample of the divorced families, constructed a FinancialSupport descriptive measure of couples' coparenting abilities.27 The primary measure of financial support was the Parents were scored on two dimensions of their co- father's compliance with the court-ordered child sup- parenting relationship: "Discord" (couples who ar- port award. Compliance was defined as the percent- gue, undermine each other's parenting, and have age of the child support award in the court record logistical problems exchanging the children scored that was actually being paid at Time 3. The mother's high), and "Cooperative Communication?' (parents report of support paid was used unless the father was who do not avoid each other, wh6 talk frequently the only parent interviewed in which case his report about the children, and coordinate household rules of payment was used.29 Additional information about scored high). These two scales were then cross-clas- father's payment behavior was generated using inter- sified to create four coparenting patterns: "Coopera- view information from Time 2 and Time 3. At Time 2, tive" (high cooperative communication and low dis- both mothers and fathers were asked if in addition to cord), "Conflicted" (high discord and low cooperative child support payments, "there was anything else that

Table 2. Fathers' Visitation at Time 3

Average Number of Overnights per Two Weeks at Time 3

Overall Legal Legal $0-15K $15-30K $30-70K Model Income Custody Income X Custody

Joint Legal 0.37 0.88 0.93 4.56*** 6.30** 3.57t

Mother Legal 0.17 0.67

Percent of Fathers with High Daytime Contact or Overnight Visitation

Overall Legal Legal $0-15K $15-30K $30-70K Model Income Custody Income X Custody

Joint Legal 37% 54% 59% 3.50** 6.62** 2.18 0.42

Mother Legal 17% 48% 54%

SPRING 1990 ALBISTON, MACCOBY & MNOOKlN the nonresidential parent had done to help the child might be related to the selection of joint legal cus- financially this year?" Fathers could help financially tody. As Table 1 indicates, there were several in inexpensive, moderately expensive, or very expen- significant differences between joint legal custody sive ways, and either occasionally or regularly. Open- families and mother legal custody families. Fathers ended responses indicated that typical extra items who later were awarded joint legal custody spent more were entertainment, school clothes, or summer camp. overnights with their children at Time 1 (shortly af- At Time 3 respondents were asked whether the fa- ter separation) than mother legal custody fathers. In ther paid for extras "like childcare, schooling or hous- addition, mothers in joint legal custody families were ing?" At both Time 2 and Time 3 the father was less hostile at Time 1 than mothers in mother legal credited with paying for extras if either parent indi- custody families, whereas joint legal custody fathers cated that he did so. were more hostile than fathers with mother legal custody. Finally, joint legal custody fathers had higher RESULTS incomes, were more likely to have a college degree, Self-Selection Factors and were more likely to be employed than fathers Since we were comparing nonresidential fathers' without legal custody. As these differences could be behavior for those families who did or did not have related to fathers' behavior after divorce, these fac- joint legal custody, it was important to explore how tors were controlled in the analyses. 0 these two groups differed initially (before legal custody awards had been made) on other factors that Visitation, Contact, and Involvement in Decision Making Within broad income groups, joint legal custody families were compared to mother legal custody fami- Table 3. Multiple Regression Predicting Fathers' Overnight Visitation with Children at Time 3 lies on the number of overnights the child spent with the father in a typical two-week period at Time 3, at first not controlling for initial differences between Overall Model: the two custody groups. This analysis indicated that Variance Explained: .18 fathers with higher incomes spent more overnights with their children. (See Table 2). In addition, there Parameter Standardized was a trend (p =.06) for fathers to have more over- Estimate Coefficient nights if they had joint legal custody than if mother (b) t statistic (6) had sole legal custody. Thus, this preliminary exami- Intercept nation indicated a small but significant effect for legal custody on fathers' overnight visitation, but it Joint Legal Custody .21 appeared that fathers' time with their children was Father's Income .004 more strongly related to their income than to the at Time 3 a legal custody agreement. Among fathers who continue to see their chil- Father's Education -.01 dren, not all have overnight visitation, especially if they cannot afford housing in which it is suitable for Father's Employment .30 137 .12 Status at Time 3 the child to spend the night. To account for this possibility, joint legal custody families were compared Mother's Hostility -.06 -2.16* -.14 to mother legal custody families using a measure of at Time I contact that allowed for non-overnight visitation. Father's Overnight .17 5.17**** .33 This scale divided fathers into those with low day- Visitation at Time I time visitation or no contact, and those with high daytime visitation or overnight visitation.31 As Table 2 illustrates, fathers' contact with their chil- a Annual income divided by 1000. dren at Time 3 was not significantly related to the legal custody decree. Again, contact increased as a *p__<5 function of income. Thus, joint legal custody was ****P:S<0001 not strongly related to children's increased contact with their nonresidential fathers, even when fathers

STANFORD LAW & POLICY REVIEW JOINT LEGAL CUSTODY with regular visitation but no overnights were taken their children, one would expect joint legal custody into account. fathers to have been more involved in decisions After this initial examination, multiple regres- concerning their children. Parents with joint legal sion analysis was used to control for the initial differ- custody were significantly more likely than parents ences between the two custody groups. As Table 3 with mother legal custody to talk with each other indicates, joint legal custody was not related to over- about the child's school progress and extracurricular night visitation once other factors were taken into activities, although there were no significant differ- account. Futhermore, father's income was no longer ences for other everyday decisions. (See Table 4). a significant factor. More initial hostility from the The more frequent discussions of school progress and mother was related to less overnight visitation, but extracurricular activities, however, may have been father's overnight visitation at Time I was the strong- related to the need for coordination given their more est predictor of his visitation at Time 3. (SeeTable 3). frequent visitation, as families who chose joint legal Findings for father's overall contact were similar, as custody had more visitation from the outset (Time 1) the strongest predictor of a father's contact at Tune 3 than mother legal custody families. When we com- was his contact at Time 1 (data not shown). While pared fathers' involvement in everyday decisions the preliminary analyses seemed to indicate some between custody groups and controlled for initial dif- differences in visitation between the two custody ferences, joint legal custody fathers were no more groups, these subsequent findings dearly indicate that involved in everyday decisions than mother legal joint legal custody was not significantly related to custody fathers, and the only significant relation that increased visitation at Time 3 once other factors were emerged was a negative one between mothers' initial taken into account. hostility and fathers' involvement in such decisions Regardless of the amount of time they spent with (data not shown).

Table 4. Proportion of Parents Who Discuss Everyday Decisions Concerning the Child

joint Legal Mother Legal Parents Talk About: Custody Custody t statistic

Child's School Progress 70.4% 73.9% 60.3% 2.21* (291) (218) (73)

Something that Upset 68.5% 69.3% 65.8% 0.57 (ns) the Child (298) (225) (73)

Child's Extracurricular 67.4% 71.6% 54.8% 2.68** Activities (291) (218) (73)

Child's Responsibilities 52.0% 53.8% 46.6% 1.08 (ns) and Privileges (294) (221) (73)

Discipline 54.4% 54.7% 53.4% 0.19 (ns) (296) (223) (73)

Childcare Arrangements 31.0% 31.7% 29.0% 0.41 (ns) (268) (199) (69)

*1<.05 **P-<.01

SPRING 1990 ALBISTON, MACCOBY & MNOOKIN

Joint legal custody fathers also were not more ParentalRelationship involved than mother legal custody fathers in major To determine whether parents in families with decisions concerning their children. Since separa- joint legal custody improved their communication tion, 25 percent of the families in this sample made a and cooperation, joint legal custody families were decision concerning the religious training of the child, compared to mother legal custody families on their 45 percent made a decision about which school the child would attend, and 32 percent made a major medical decision concerning the child. Table 5 indicates that father's education and initial overnight Table 6. Coparenting at Time 3 visitation were positively related to his involvement in such decisions, whereas mother's initial hostility Mother Physical Mother Physical was negatively related to his involvement. Once Joint Legal MotherLegal again, joint legal custody was not a Coparenting Style (N=194) (N=52) significant pre- 3 a dictor of father's involvement. These data indicate at Time that it is not joint legal custody, but initial hostility Cooperative 30.9% 28.9% within the family as well as characteristics of the fa- Conflicted 27.8 28.9 ther that affect nonresidential fathers' involvement Disengaged 41.2 423 in decision making. Total 100%

Chi-Square (2, N=246) = 0.96, ns. Table 5. Multiple Regression Predicting Fathers' a Families in which the children have contact with both parents. Involvement in Major Decisions at Time 3 b Percents do not add to 100% due to rounding error.

Overall Model: 3.91** coparenting styles. If joint legal custody promotes Variance Explained: .12 cooperation and communication between divorcing parents, then there should be a greater proportion of Parameter Standardized "Cooperative" coparenting relationships among Estimate Coefficient (b) t statistic (B) families with joint legal custody than among families with mother legal custody. Conversely, if it is the Intercept case that joint legal custody gives one parent "med- dling rights," a greater proportion of "Conflicted" co- Joint Legal Custody 0.15 parenting relationships should be found among fami- Father's Income 0.11 lies with joint legal custody than among those with at Time 3 a mother legal custody. Regardless of whether the parental involvement was positive or negative, there Father's Education 2.35* should be fewer "Disengaged" relationships among Father's Employment 0.53 the joint legal custody families than among the Status at Time 3 mother legal custody families. As Table 6 demon- strates, however, families with joint legal custody did Father's Overnight 1.92t Visitation at Time 1 not differ significantly from families with mother legal custody in their distribution among "Cooperative," 32 Mother's Hostility -2.54** "Conflicted," and "Disengaged" coparenting styles. at Time I The Cooperative Communication and Discord scales were also considered separately, while control- a Annual income divided by 1000. ling for the earlier differences between the two legal custody groups. The strongest predictors of parental cooperation and discord at Time 3 were cooperation t u <..10 **p <.01 *P<.05 ***P <.001 and discord at Time 2.33 (See Tables 7 and 8). Coop- erative Communication was marginally higher if the father was employed, but neither joint legal custody

STANFORD LAW & POLICY REVIEW JOINT LEGAL CUSTODY nor other factors affected this aspect of coparenting. relation to discord only applied to families in which However, both father's income and joint legal cus- the children saw both parents. The analysis of paren- tody were significantly related to Discord. Finally, an tal hostility, however, applied to all families in this analysis of hostility indicated that the only significant sample, and indicated no relation between joint legal predictors of family hostility at Time 3 were parental custody and decreasing (or increasing) parental hostility at Time I and a negative relation between hostility. father's education and hostility. (See Table 9). The finding concerning decreasing Discord must FinancialSupport be interpreted with caution. While joint legal custody To investigate the relation between legal custody families experienced decreasing parental discord, this and financial support three variables were examined: evidently did not imply increased coordination be- child support awards, fathers' compliance with those tween the two households. Thus, although open awards, and the percentage of fathers who pay for quarreling and active mutual undermining may have extra items for their children. Not surprisingly, the diminished, joint legal custody families did not show amount of the support award increased with father's a parallel increase in coopetative communication. We income. (See Table 10). The legal custody arrange- also emphasize that the analysis of joint legal custody's ment, however, was not significantly related to the

Table 7. Multiple Regression Predicting Parental Table 8. Multiple Regression Predicting Parental Cooperative Communication at Time 3 Discord at Time 3

Overall Model: 5.26**** Overall Model: 10.32**** Variance Explained: .23 Variance Explained: .39

Parameter Standardized Parameter Standardized Estimate Coefficient Estimate Coefficient (b) t statistic (B) (b) t statistic (6)

Intercept Intercept

Joint Legal Custody -0.09 Joint Legal Custody -.79 -2.27*

Father's Income -0.49 Father's Income -.02 -2.07* at Time 3 a at Time 3 a

Father's Education -0.14 Father's Education .07 0.60

Father's Employment 1.91- Father's Employment -.25 -0.44 Status at Time 3 Status at Time 3

Father's Overnight Father's Overnight .004 0.07 Visitation at Time 1 Visitation at Time 1 -0.37 Mother's Hostility Mothers Hostility .05 0.83 at Time 1 at Time 1

Cooperative 5.05**** .50 Discord at Time 2 b .48 6.680*** -57 Communication Time 2b a Annual income divided by 1000. b Discord was not measured at Time 1 as parents had not yet a Annual income divided by 1000. developed a coparenting relationship. b Cooperative Communication was not measured at Time 1 as parents had not yet developed a coparenting relationship. *p<.05 ****G0 001 t* 01.O ***W*_:<.0001

SPRING 1990 ALBISTON, MACCOBY & MNOOKIN size of the monthly child support award, suggesting than mother legal custody fathers in their compli- that custodial mothers did not substantially compro- ance with child support, one could argue that they mise on child support to keep sole legal custody. pay for more extra items, such as clothes, toys, or Similarly, joint legal custody made no difference in childcare. Our data, however, does not support this father's compliance once income was taken into ac- hypothesis. At Time 2, neither joint legal custody count and, as one might expect, fathers' compliance nor higher father income were related to paying for increased significantly with their income. Subsequent extras on a regular basis. In addition, only father's analysis of compliance, controlling for initial differ- income was related to paying for extras on an occa- ences, however, revealed that the effect of income sional basis. Although the measure isslightly different disappeared once fathers' education was considered. at Time 3, the story is the same, as neither joint legal (See Table 11). These analyses suggest two conclu- custody nor increases in father's income appeared to sions. First, joint legal custody does not, in fact, increase the percentage of fathers who paid for extras improve fathers' compliance with child support awards for their children. once their ability to pay is taken into account. Sec- ond, the education of the father appears to be more CONCLUSIONS strongly related to his compliance than his level of In this paper we explored the possibility that joint income (although of course these measures are re- legal custody increases nonresidential fathers' involve- lated). ment in three major areas: contact with their chil- Although joint legal custody fathers are no better dren, relations with their ex-spouse, and financial support of their children. With one exception, all of our evidence suggests that joint legal custody has no significant effect on any of these dependent measures Table 9. Multiple Regression Predicting Family once initial differences between the two custody Level Hostility at Time 3 groups are taken into account. Even the exception, a significant relation between joint legal custody and decreasing discord between the parents, only applied Overall Model: 3.02** Variance Explained: .06 to a subsample of families in which the children vis- ited both parents, and was not accompanied by a par- Parameter Standardized allel increase in parental cooperation. Estimate Coefficient What are the implications of these findings for (b) t statistic (B) policy concerning joint legal custody? Although in Intercept aggregate data we found no evidence to support claims for the positive or negative effects of joint legal cus- Joint Legal Custody 0.23 tody, it is important to emphasize that this does not Father's Income -0.44 preclude their occurrence in some families. Never- at Time 3 a theless, it appears that joint legal custody is neither the solution to the problems of divorce nor a catalyst Father's Education -2.08* for increasing conflict in divorcing families. Broad Father's Employment -0.19 legislative policies either advocating or condemning Status at Time 3 joint legal custody on the basis of such claims thus seem entirely unwarranted. California policy cur- Father's Overnight -0.24 Visitation at Time I rently encourages joint custody in the interest of "frequent and continuing contact with both parents," Family Level Hostility 3.18"* with the implicit assumption that joint legal custody at Time I will influence the behavior of parents after divorce.34 Our findings, however, provide no basis for this im- a Annual income divided by 1000. plicit assumption. Why is it that joint legal custody has little or no effect on parents' behavior? In data reported elsewhere," we found that in California most joint legal custody decrees were the result of negotiation between parents rather than the exercise of judicial

STANFORD LAW & POLICY REVIEW JOINT LEGAL CUSTODY

Table 10. Child Support Awards and Compliance

Monthly Child Support Awards Overall Legal Legal $0-15K $15-30K $30-70K Model Income Custody Income X Custody

Joint Legal $276 $308 $444 7.65**** 8.38*** 2.21 0.88

Mother Legal $283 $259 $354

Compliance with Child Support Awards

Overall Legal Legal $0-15K $15-30K $30-701 Model Income Custody Income X Custody

Joint Legal 52% 66% 84% 6.14**** 9.13**** 1.11 0.95

Mother Legal 42% 71% 71%

***P:<.001 ****P<.0001 discretion, and few families had disagreements over than their counterparts of twenty years ago partially legal custody. In addition, 79 percent of the families because of a growing expectation in the wake of no- in this study had joint legal custody decrees, making fault reform that they remain involved. Although it by far the most common legal custody agreement 6 changes related to joint legal custody are confounded Perhaps, during a time when only ten or twenty per- with recent shifts in gender role assumptions as a cent of families had joint legal custody, it did in fact whole, reflecting these changing assumptions in legal affect parental behavior. Today, however, when this institutions may eventually impact social ideology 31. form of legal custody ismore widespread, it appears to Even though our findings indicate that the joint legal mean very little in practice. It also is possible that custody label alone will not make divorced parents joint legal custody never had a significant effect on equal partners in the lives of their children, we also parental behavior. Legal custody may be symbolic for find no compelling evidence that joint legal custody most families, whereas the substantive concern of generates conflict between parents. Thus, the reten- parents is the amount of time they have with their tion of joint legal custody as an option for its affirma- children, not their formal legal authority. tion of the involvement of nonresidential parents and It is also important to recognize the potential its potential impact on perceptions of gender roles impact of joint legal custody on perceptions of gen- may be warranted. We caution, however, that the der roles. Perhaps the importance of joint legal cus- absence of harmful effects in families who, for the tody is that it is a legislative affirmation that fathers, most part, voluntarily chose joint legal custody can- as well as mothers, are responsible for their children not be generalized to those who have joint legal cus- after divorce. Behavioral changes related to joint tody imposed upon them. legal custody may best be measured not by comparing Debate and research concerning joint custody has sole and joint legal custody families of the same tem- focused on its most easily observed and popular form, poral cohort, but by comparing successive cohorts on namely joint legal custody. Our data suggest, however, parental behavior following divorce. For example, that this focus may be somewhat misplaced, given nonresidential parents today may be more involved joint legal custody's apparently marginal effect on

SPRING 1990 ALBISTON, MACCOBY & MNOOKIN

1. In 1979, California implemented a statute containing a "pre- Table 11. Multiple Regression Predicting sumption... that joint custody is in the best interests of a minor Compliance with Child Support Awards at Time 3 child where the parents have agreed to an award of joint custody." Cal. Civ. Code § 4600.5(a) (West, 1983). Thisstatute also allowed the award of joint custody through judicial discretion in cases Overall Model: 4.72*** where parents are not in agreement but one parent requests it. Variance Explained: .11 The statute defined joint custody as "an order.., providing that physical custody be shared ..- in such a way as to assure the child Parameter Standardized or children of frequent and continuing contact with both par- Estimate Coefficient ents." Cal. Civ. Code § 4600.5(d)(3) (West, 1983). The statute (b) t statistic (B) also provided, however, "that such [an] order may award joint legal custody without awarding joint physical custody," making Intercept ambiguous whether joint legal or joint physical custody was the object of the joint custody presumption. Ibid. Joint Legal Custody .03 2. Cal. Civ. Code § 4600.5(d)(5) (West, 1983). Father's Income .003 1.43 .14 at Time 3 a 3. Cal. Civ. Code § 4600.5(d) (West, 1983).

Father's Education .07 2.71** .22 4. Patricia L. Grove, "Joint Custody: A Concept That Has Come of Age But Needs Refinement," American Journal of Family Law Father's Employment .11 0.99 1(1): 23 (1987), 36; Robert E. Emery, "Marriage, Divorce, and Status at Time 3 Children's Adjustment," DevlopmentalClinical Psychology and Psy- chiatry, vol. 14 (Newbury Park, CA: Sage Publications, 1988). Father's Overnight -.02 -1.02 Visitation at Time 1 5. Robert H. Mnookin, Eleanor E. Maccoby, Catherine R. Albis- ton, and Charlene E.Depner, "Private Ordering: What Custodial Mother's Hostility -.01 -1.03 at Time I Arrangements Are Parents Negotiating?" Divorce Reform at the Crossroads,ed. S. Sugarman and H. Kay (New Haven: Yale Uni- versity Press, 1990, in press).

a Annual income divided by 1000. 6. Cal. Civ. Code § 4600.5(b)(1) (West, 1983).

**P: _01 7. James A. Cook, "California's Joint Custody Statute," in Joint ***P_<.001 Custody and Shared Parenting,ed. Jay Folberg (Washington, DC: The Bureau of National Affairs, 1984); Katherine T. Bartlett and Carol Stack, "Joint Custody, Feminism, and the Dependency Dilemma," Berkeley Women's Law Journal 2:9 (1986), 41. family functioning after divorce. By focusing on legal custody or failing to distinguish between legal and 8. Bartlett and Stack, "Joint Custody, Feminism, and the De- physical custody, scholars may be ignoring substantial pendency Dilemma." issues in establishing and maintaining a successful 9. Lenore J. Weitzman, The Divorce Revolution (New York. Free shared physical custody arrangement. More atten- Press, 1985); Nancy D. Polikoff, "Why Mothers Are Losing: A tion should be given to the prevalence and success of Brief Analysis of CriteriaUsed in Child Custody Determinations," joint physical custody agreements, as well as the Women's Rights Law Reporter7(3): 235 (Spring 1982), 235-243. implications of decrees granting joint physical custody for the actual residential arrangements for 10. W. Glenn Clingempeel and N. Dickon Reppucci, "Joint Custody After Divorce: Major Issues and Goals for Research," children. Insight into the success of joint physical PsychologicalBulletin 91(1): 102 (January 1982). custody decrees, as well as a better understanding of the implications of dual residence for the well-being 11. For example, research has shown a joint custody decree does of children, are essential for the development of pol- not necessarily result in equally shared childcare responsibilities icy concerning the custody of children following between parents in actual practice. Constance R. Ahrons, '"Joint Custody Arrangements in the Postdivorce Family," Journal of Di- divorce. vorce 3(3): 189 (Spring 1980).

NOTES 12. Madonna E. Bowman and Constance R. Ahrons, "Impact of Legal Custody Status on Fathers' Parenting Postdivorce," Journal This research was supported by grants from the National Insti- of Marriage and the Family 47(2): 481 (May 1985). tutes of Health (HD 19386-05) and the Stanford Center for the Study of Families, Children, and Youth. 13. Judith B. Greif, "Fathers, Children and Joint Custody,"

STANFORD LAW & POLICY REVIEW JOINT LEGAL CUSTODY

AmericanJournalofOrthopsychiatr49(2):311 (April 1979). This also Eleanor E. Maccoby, Charlene E. Depner, and Robert H. author discusses the benefits of both time-sharing (joint physical Mnookin, "Children Following Divorce," in Impact of Divorce, custody) and joint decision-making responsibilities (joint legal Single Parenting,and Stepparenting on Children, ed. E. Mavis Heth- custody). erington and Josephine D. Arasten (Hillsdale, NJ: Lawrence Erlbaum Associates, 1988). 14. Melvin Roman and William Haddad, The Disposable Parent (New York: Penguin Books, 1978). These authors define joint 24. In some cases where parents could not be interviewed by custody as an arrangement in which "parents agree to equally phone, a mail interview was completed by eligible parents. share the authority for making all decisions that significantly affect the lives of their children," and child-care arrangements "at 25. Mother de facto residence was defined as 11 or more over- the[ir] most discrepant ... [are] a two-to-one splie (p. 173). nights with mother in a typical two-week period. They argue that the specifics of the household arrangements be left to the parents' discretion. 26. Father's income at Time 3 was used in order to be temporally consistent with the dependent measures. 15. Deborah A. Luepnitz, "A Comparison of Maternal, Paternal, and Joint Custody: Understanding the Varities of Post-Divorce 27. Eleanor E. Maccoby, Charlene E. Depner, and Robert H. Family Life," Journal of Divorce 9(3): 1 (Spring 1986). Mnookin, "Coparenting in the Second Year After Divorce,"Jour- nal of Marriageand the Family 52:141 (1990). 16. Frederick\W. Ilfeld, Jr., HollyZ. Ilfeld, and John R. Alexander, "Does Joint Custody Work? A First Look at Outcome Data of 28. For a more detailed description of these measures, see Mac- Relitigation," AmericanJournal of Psychiatry 139(1): 62 (January coby et al., "Coparenting in the Second Year After Divorce." 1982). 29. Nora C. Schaeffer, Judith A. Seltzer, and Marieka Klawitter, 17. Patrick Phear, James Beck, Barbara Hauser, Susan Clark, and 'Nonresponse and Response Bias in Reports of Child Support Ruth Whitney, "An Empirical Study of Custody Agreements: Payments- Comparisons Between Custodial Mothers and Non- Joint Versus Sole Legal Custody,"JointCustody andShared Parent- custodial Fathers," paper presented at the annual meeting of the ing, ed. Jay Folberg (Washington, DC: Bureau of National Affairs, Population Association of America, Baltimore, MD (1989). They 1984). These conflicting findings may be explained by the fact found that residential mothers' reports about payment behavior that in the Ilfeld study nearly half of the mother legal custody are more accurate that the reports of nonresidential fathers. case data were collected before the mid-point of the study, whereas two-thirds of the joint legal custody case data were collected after 30. All significant differences between custody groups were con- this point, allowing joint legal custody cases somewhat less time trolled in regressions with the exception of father's hostility. to relitigate. Father's hostility had little predictive value in analyses where hostility scores from both parents were included, while mother's 18. Andre P. Derdeyn and Elizabeth Scott, 'Joint Custody: A hostility was significantly related to a number of dependent meas- Critical Analysis and Appraisal," American Journal of Orthopsy- ures. For this reason, only mother's hostility was included in the chiatry 54(2): 199 (April 1984). regressions.

19. Grove, "Joint Custody: A Concept That Has Come of Age 31. High daytime visitation fathers either spent time every week- But Needs Refinement." end with their children, or spent time with their children on both weekends and weekdays on a regular basis. 20. Luepnitz, "A Comparison of Maternal, Paternal, and Joint Custody: Understanding the Varities of Post-Divorce Family Life;" 32. Families with "Mixed" coparenting styles were dropped from Jessica Pearson and Nancy Thoennes, "Child Custody, Child- the analysis because they were so rare (N=27). The results were Support Arrangements and Child-Support Payment Patterns," no different when "Mixed" families were included. Juvenile and Family CourtJournal 36(3): 49 (August 1985). 33. There was a timespan of two years between Time 2 and 21. Judith A. Seltzer, "Legal Custody Arrangements and the Time 3. Intergenerational Transmission of Welfare" manuscript submit- ted for publication, (1989). 34. Cal. Civ. Code § 4600 (West, 1983).

22. Weitzman, The Divorce Revolution; Robert H. Mnookin and 35. Mnookin et al., "Private Ordering: What Custodial Arrange- Lewis Kornhauser, "Bargaining in the Shadow of the Law: The ments are Parents Negotiating?" Case of Divorce," Yale Law Journal88(5): 950 (1979). 36. Ibid. 23. For a more detailed description of the sampling procedures and interviewing methods, see Mnookin et al., "Private Ordering: 37. Bartlett and Stack, 'Joint Custody, Feminism, and the De- What Custodial Arrangements Are Parents Negotiating?;" see pendency Dilemma."

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