In custody decisions, mothers are more likely to receive primary residential custody than fathers. Although in the past decade there has been an increase in equal residential custody, mothers are still much more likely to be awarded primary residential care. Across a wide range of jurisdictions the estimates are that mothers receive primary custody 68-88% of the time, fathers receive primary custody 8-14%, and equal residential custody is awarded in only 2-6% of the cases.
Sanford Braver and his colleagues at Arizona State University recently conducted a study to see how the public would judge custody decisions and their perceptions of the legal system regarding custody (Psychology, Public Policy and Law, 2011). To examine these questions, the researchers developed three hypothetical cases in which the only variation in the cases was the amount of time that the mothers and fathers had participated in caregiving prior to the divorce. In one case, the mother provided 75% of the caregiving prior to the divorce, in the second case, the father provided 75% of the caregiving and in the third case the caregiving was 50% by both parents. These cases were presented to citizens who had been summoned to serve on a jury panel in an Arizona community. About 100 people participated in this study. The participants were given the three hypothetical cases, and then asked to imagine themselves as the judge deciding these cases based on the merits of the cases and what was best for the child. In each case they were asked how much time the child should spend with each parent.
In the case in which the parents spent equal time (50-50) with the child prior to divorce, an overwhelming majority (69%) of the participants thought living time should be divided equally between the two parents. The remaining participants selected "live with mother, but spend a lot of time with dad."
So what did the participants choose when the parenting time was described as more by either by the father or the mother (75% -25%)? In these cases about 50% of the participants still selected "equal time" with both parents as the preferred custody arrangement. In the case in which the mother was described as spending more time, another 41% selected "live with mother, but spend a lot of time with dad." Likewise, when dads were described as spending more time, 37% of the participants selected "live with dad, but spend a lot of time with mother." In all these cases in which both parents were described as competent parents from average families, the participants in this study favored "equal parenting time" even in cases in which the pre-divorce parenting routines were described as either equal or in which one parent was more actively involved in caregiving.
The next question that the participants were asked was what they thought would happen in "today's legal system?" Here participants thought the legal system would come to dramatically different conclusions. In the case in which both parents had 50-50 caregiving time, the study participants estimated that the legal system would award equal time in only 28% of the cases, although another 47% estimated that the child would live with mom and get lots of time with dad. In the case in which the mother was described as spending more time with the child, the most common expectation (about 33%) was that the court would rule that the child should live with mom and dad would get "some" time. In the reverse case in which the dad was described as spending more time in caregiving prior to the divorce, again only 27% expected the courts to award equal time to both parents. The study participants did not expect fathers who were caregivers to get the same results as the mothers. Twenty-seven percent expected the judge to rule that the child should live with the mom, but the father would get a lot of time. Likewise, only 24% expected that the judge would rule that the child would live with the father and the mother would get to spend a lot of time with the child.
Overall, these results suggest that there is strong view among the general public that equal custody is the preferred option. Importantly, these results did not differ between men and women participants. Both genders favored equal custody.
Perhaps most surprising was that even in the cases of different patterns of pre-divorce involvement, the study participants leaned toward a pattern of equal time post-divorce. The other notable finding was that although these members of the public were not gender-biased in their views of custody, Sanford and colleagues write, "it seems they believed that the legal system was."
In writing about the implications of these findings, the researchers note that the perception of the legal system is important because both lawyers and parents may base their choices on what they believe the court will decide. They write, "the mere perception that there is a bias may influence the settlements on which most the judgments are based, [resulting in ] a self-fulfilling prophecy."