Not Your Dad's Divorce

How changes in child-support laws, and a push by fathers for equal time, are transforming the way this generation of ex-spouses raise their children.

Newsweek Web Exclusive, USA, Susanna Schrobsdorff, Dec. 15, 2008

Most parents will never forget the details of the day their children were born. For those who divorce, there's another day—equally vivid, totally different—that etches into memory: when they have to tell their children their mother and father are splitting up. What I remember is pacing through our apartment the night before, watching my girls sleep. The older one was 8 and still slept as she had when she was a newborn, arms thrown high above her head. The little one, just 4, was curled at the top of her bed, leaving two thirds of it empty.

Their dad and I had read the divorce books and rehearsed our speech about how none of this was their fault, that we loved them. All of this was true, but it seemed insufficient. He and I made a big calendar, as advised, with mom days in red and dad days in purple. In the half-light of that sad morning, I opened the calendar and realized that this crazy quilt would be a map for our lives from now on.

In the morning, we sat the girls on the sofa and told them. They cried, and were confused, but they didn't ask the big questions we thought they would. They wanted to know where they'd live, and whether they would still have the same last name. When we showed them the calendar, our older girl turned it a few pages ahead to her birthday month, which we hadn't colored in yet. She panicked. "But Mom, is my birthday red or purple?" Her dad and I looked at each other and said, "Both. We'll both be there." She would not rest until we filled the day in with red and purple. And with that, our new family life was born.

Birthdays had been part of the initial conversations my ex-husband, Jorgen, and I had had about how the schedule would work. When his parents divorced in the 1970s, they adopted the standard every-other-weekend-with-dad setup. He remembered missing his father tremendously and didn't want that for our kids. We talked about sharing time with them more equally—legally it's called joint physical custody, as opposed to the more common joint legal custody, where the child may live primarily with one parent, but both parents make big decisions, like which school the child goes to, together.

Joint custody meant that the girls would be spending several nights a week with their dad. Switching would require collaboration and communication about homework and school projects and the thousand other things that kids need from day to day. To make it work, we'd have to live near each other for the next 13 years, until the youngest girl was off to college. It was a commitment not unlike marriage, and, given that feelings were still raw post-divorce, neither of us thought it would be easy.

No child custody schedule is. It can involve long commutes and budgets strained by the costs of maintaining two households. The traditional dad-gets-every-other-weekend formula is logistically easier than what Jorgen and I planned. But ours is an increasingly common arrangement. "It's not like it was 20 years ago," says Leslie Drozd, editor of the Journal of Child Custody. "There's no longer the same presumption that young children must be with their mother."

Courts are changing as well; in the small percentage (5 percent) of custody cases that do go to litigation, judges are now more inclined to disregard gender and look at who's the better parent, says Gary Nickelson, president of the American Academy of Matrimonial Lawyers. "Now they look at parenting skills. Who took care of the children before the divorce?" Most often, children still end up living primarily with the mother; according to the most recent census, moms are the official primary residential parent after a divorce in 5 out of 6 cases, a number that hasn't changed much since the mid-'90s.

Nationwide, the proportion of divorced spouses who opt for joint physical custody, where kids spend anywhere between 33 and 50 percent of their time with one parent and the rest with the other, are still small—about 5 percent, according to an analysis of data from the '90's on post-divorce living arrangements by clinical psychologist Joan B. Kelly in the journal Family Process in 2007. But in California and Arizona, where statutes permitting joint physical custody were adopted in the '80s, a decade earlier than in most states, the joint-physical-custody rates were higher, ranging from 12 to 27 percent.

Formal custody assignments don't tell the whole story of increased involvement by divorced fathers. Research to be published in the journal Family Relations in 2009 shows that there have been significant increases in how much nonresident dads (those who don't have primary custody) are seeing their kids. In 1976, only 18 percent of these dads saw their children (ages 6-12) at least once a week. By 2002, that number had risen to 31 percent.
 
"It's likely that more fathers are seeing their children midweek for dinner or an overnight.  It's a change that really started in the 1990s," says Robert Emery, one of the coauthors of the 2009 Family Relations study (along with Paul R. Amato and Catherine E. Myers). "There's been a cultural shift—a father's involvement with their children is seen as important and positive," says Emery who is also the author of "The Truth About Children and Divorce" (Viking Penguin, 2004).

The laws governing child support have also evolved and affected child-custody arrangements. In the last 15 years or so, most states have passed legislation that ties child-support payments to how much time a child spends with the nonresident parent paying the support. So if a father spends more than a given threshold of nights with his kids, he can have his child support adjusted according to formulas that vary by state.

The change in support law has been applauded by fathers' rights groups. But Jocelyn Elise Crowley, author of "The Politics of Child Support in America" (Cambridge 2003) and "Defiant Dads" (Cornell University 2008), notes that women generally suffer more economic hardship after a divorce; even an incremental reduction in child-support payments could knock their standard of living down significantly. As it is, 27.7 percent of custodial mothers live below the poverty line, compared to only 11.1 percent of custodial fathers. And she notes that much child support goes unpaid. More than $30 billion in child-support payments was due to custodial parents last year. Only $19 billion was paid. Still, that's better than it was for women in the '60s. Before the 1984 federal Child Support Enforcement Amendments, there was virtually no enforcement of support awards or comprehensive tracking of unpaid support.

Crowley says the problem with linking support payments and time spent with kids is that in some cases it can create a "less than pure incentive for fathers to ask for more time with their children." Gary Nickelson of the AAML says men have come into his office saying they want custody of their kids half the time so that they can pay half the support. "I tell them to find another lawyer," he says. "If that's why you're in it, you're not going to win." Most men, though, he says, "just want a fair shake. They want to be involved with their kids."

Fathers and Families is just one of many organizations for fathers who believe that they're not getting a fair shake. Dr. Ned Holstein, a public health physician who heads the 4,500-member group, says it represents men who want more time for the right reasons. He attributes the fact that statistics still show that about 85 percent of primary physical custody goes to women, to the variety of factors leading fathers to cede custody to mothers.

Some dads do jump right into the single life, leaving the bulk of the child-raising to the mothers. But Holstein believes they regret it: "They enter into divorce with the fantasy that they can buy a sports car, go to singles bars and spend their time dating and still have a close relationship with their kids, only seeing them every other weekend, but it doesn't work." And it's a bit of bravado, says Holstein. "You take them to a bar, and they'll start crying because they know they've essentially lost their kids, that their relationship has dwindled. There are legions of men for whom this is a really painful thing."

Why don't the men who are unhappy with the arrangements they have fight for more time? (Currently about 7 percent of sole custodial parents are men.) Holstein says the legal system deters them. "The lawyers are telling them, 'You can't fight this, you won't get it, and it will cost you a lot of money and heartache.'" While the numbers show that men who do fight for primary custody win as much as women do, Holstein says those cases are self-selecting: "They've been told in advance they have a chance at winning because they were Mr. Mom before the divorce—or there's an obvious problem with the mother."

Nickelson of the AAML disagrees. He says that mother bias has largely gone by the wayside. "Thirty-five years ago, when I started practicing, there was gender bias. Mom got the kids unless there was something really wrong with mom, but now most states have provisions that say gender can't be the determining factor in deciding who is going to be the primary custodial parent."

To be sure, the minority of cases that do end up in family court can quickly get ugly—and expensive. The battle over who's the better parent often ends up as a mud fight where the goal is to prove that the other parent is unfit. Couples who do get this far have likely already exhausted various methods of alternative conflict resolution—some states even mandate pre-court mediation—and are at each other's throats.

Often, both sides hire expensive psychologists. Charges of abuse, both child and spousal, can fly. And now, exes have a whole new array of weapons thanks to computers. Surveys from the AAML this year and last found that more than two thirds of their members have seen an increase in digital evidence (often gathered by spyware) brought into court—from browser histories to cell phone records.

Deedra Hunter, coauthor of "Winning Custody" (St. Martin's Griffin, 2001), coaches women who are embroiled in these kinds of battles. She warns clients that everything they do could be brought into court, from their e-mails to their antidepressant prescriptions to the case of wine they bought online for a party. "I say you're no longer living a life, you're living a case."  She says women should keep meticulous records to prove that they're using their child-support money for the kids, and use a camera with a date stamp to prove that the children's father is getting access to the kids as ordered. The experience is traumatic and can go on for years if one partner is unable to let go, she warns. In one extreme case, she recalls, a child died and the parents went to court to fight over the ashes.

Now there's a new charge: parental alienation, more often aimed at mothers than fathers, whereby one parent accuses the other of turning the children against them.  Experts say there's a certain amount of bad-mouthing of the other spouse in any divorce and Dr. Jonathan W. Gould an author and partner in Child Custody Consultants, a North Carolina-based group that provides expert testimony in custody cases, explains that this behavior can be very damaging to kids. It happens when a parent loses perspective and can't separate his or her own feelings about the ex from the child's needs. "They truly believe they're protecting the child by filtering access to the other parent."  But absent cases of abuse, kids do best, he explains, when they have unfettered access to the other parent—when they feel they can call when they need to talk, or e-mail, without repercussions from the other parent.
 
"Children build internal working models of mommy and daddy, and it's important that these structures are as strong as possible. If you don't have access to dad, then the structure is going to be robust for mom, but not dad," says Gould. From a child's point of view, what matters is that the child knows that both parents can care for him equally, no matter what the exact time split. Gould, who does custody evaluations for the court system, adds: "If they don't have a room or don't know the neighbors where their father lives, it can feel like they're visiting an uncle."

Holstein of Fathers and Families argues that making kids feel at home at dad's house is difficult when support payments can eat up as much as 40 percent of his after-tax income. They may have to leave the neighborhood for smaller quarters, leaving the children's friends behind. To change that, and to give dads more time and an adjustment in child support according to the new laws, Holstein feels the courts should start with a presumption that there will be joint physical custody. Much of the research on the subject shows that a majority of kids who have grown up in joint physical custody arrangements report that they are satisfied with the way it worked, while kids who grew up in an "every other weekend arrangement" were more likely to be dissatisfied and want more contact with their fathers.

Still, joint custody may not be for every family. Paul Amato, a leading researcher on the subject and a professor of sociology at Penn State, argues that because joint custody is generally granted to parents who request it and are cooperative with each other, it's unclear whether it would work for every couple. Forcing uncooperative couples into a joint arrangement could end up creating more parental conflict, which most experts agree is the most damaging part of a divorce for kids. "I do not think it's a good idea to impose joint physical custody on unwilling parents," he says. "This strategy is likely to do more harm than good."

The willingness of both parents to cooperate is the key factor in how kids adjust to a divorce. Nickelson reminds parents that they should start creating a collaborative relationship with an ex-spouse early on. "You're not going to sign the child-custody agreement, whatever it is, and be done with your wife or husband. I tell my clients, if you're lucky, you'll be sitting next to them for graduations and marriages and all kinds of achievements, so learn to get along."

It's not easy to tame the natural resentments that flare up. My family has had to learn a new way to be together. But after three years of separation and divorce, we've celebrated one middle-school graduation, a first day of kindergarten, several Halloweens and six birthday parties. It's starting to feel close to normal. Sure, those first few birthday parties had some brutal moments, but now, with one girl only a few years away from leaving for college, nobody in our odd group is in any rush for that day to arrive when we're not together for big events.

Editor's Note: This story was updated on Dec. 15.