Not Your Dad's Divorce

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."