What do courts look for when they decide which parent should be the primary caretaker? You can find multiple sources online like lawyer's websites and divorce publications and websites and they will say pretty much the same thing: courts supposedly look for:
Ability to provide for and care for the children
Relationship and involvement with the children
Ability to work with the other parent
The parents' conduct (substance abuse, criminal record, history of abuse, etc.)
Whether the child would have to change houses, cities or schools to live one parent over the other
The age, sex or health of the children
But that's in theory. Who actually gets custody doesn't always fit these criteria, particularly with the prevalence of adjudicated abusers getting majority custody in many cases.
Imagine a dysfunctional family where the parents are married and live together. Parent A might engage in binge drinking, have trouble staying employed or even be physically abusive. Parent B might support the family financially and emotionally try to protect the children from Parent A's abuse and drinking. Which parent is the more capable parent? Parent B is obviously the more capable parent because Parent B is able to provide and care for the children and consider their needs. But if one of the parents chooses to file for divorce, both parents will be likely be deemed equally capable parents by the court because the court wants the couple to coparent, and in many cases statistics show that Parent A might be considered the more capable parent by the court. Nothing actually changed about either parent's behavior. The only thing that changed was that one parent filed divorce. Once the couple ends up in family court, judges will typically regard both parents as equally capable or an abusive parent as more capable. The very act of trying to dissolve a marriage actually tends to inflate courts' confidence in incapable parents.
Most people who work in the family court system espouse the idea that co parenting is what every child needs, so that means that even if a parent has no job, no stable housing, or has a history of violence or has abused the other parent, he or she can still have substantial custody. In my first round of child custody recommending counseling (basically a fancy term for custody mediation), my ex said he wanted full physical and legal custody and the mediator told him that would only happen if one parent was in jail. The episode "Sins of the Father" from This is Life with Lisa Ling highlighted women who had become pregnant by rape and were forced by family courts into co parenting with the men who were convicted of raping them. So while everyone talks about what courts are looking for, what the reality of custody decisions shows is that the courts don't really take any factors into account for custody much of the time because "one parent is as good as another" and the child "needs" coparenting. And while pretty much everybody in family law would say those things are important, in many places (including California) they aren't actually examining whether those elements are in place.
Here is what the California Family Court system requires for divorce filings:
Fill out these forms:
- Petition — Marriage/Domestic Partnership (form FL-100)
This form asks for basic information about your marriage and the type of orders you want the court to be able to make about things like spousal support and property.
- Summons (Family Law) (form FL-110)
The Summons tells your spouse that you've started a court case and that they have 30 days to respond.
If you and your spouse have children together, you will also need to fill out:
- Declaration under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (form FL-105)
- You must fill out this form if your children are under 18. This form tells the court where your children were born and live and if there are any other court cases involving them.
- In this part of a divorce, you'll fill out forms to show what you own, owe, earn, and spend. You give these forms and copies of some financial documents to your spouse. (https://selfhelp.courts.ca.gov/divorce/start-divorce/forms)
Then you'll use this information to divide your property and debts equally and make decisions about child and spousal support. (https://selfhelp.courts.ca.gov/divorce/financial-disclosures)
That's it. You don't need to provide any proof to the court that you have stable housing, income or employment. The financial forms are only shared with the other spouse and all that is required by the court is that the spouse files a proof of service saying the spouse was served with the financial forms. You also don't need to submit a record of any criminal charges. And no matter how many red flags a parent's behavior would raise in the real world, courts will rarely order a psychological evaluation-- despite the fact that there is a higher likelihood that one or both parties in a divorce has a serious mental disorder in a divorce.
Geography
Because "one parent is as good as another", it seems like geography often becomes a primary factor in custody cases. Often, primary custody will be given to the parent who doesn't have to move. There are some good reasons for this. The divorce is already stressful on the children and moving would make it more so. It's a simple objective criteria and it seems to be the only objective criteria that courts will consider, possibly because it doesn't require courts to do the messy work of considering things like mental stability or a willingness to support the children. The problem is that geography can easily be manipulated. It isn't uncommon for a parent to move the child before filing for divorce or before a custody case is started precisely so that the child can start school and then the court will favor that parent. It also becomes an absurd criteria when held up against the parental stability because the perception of family courts seems to be that not moving the child is always a win because "one parent is as good as another". But the reality is that in practice this can become "it will be more damaging for a child to move to a different house and school than to be raised by a mentally and emotional unstable parent who isn't able to provide adequate care". Moving is hard, but being raised by an abusive, negligent or dysfunctional parent will be even harder on the child, but again, courts aren't willing to acknowledge this.
What do children really need though?
Adshead (2018) states:
Psychological capacities needed for ‘good-enough’ parenting
- The capacity to manage one’s own distress and anxiety without becoming angry, hyperaroused or frightened
- The capacity to plan and think ahead
- The capacity to respond empathically and confidently to another person’s distress
- The capacity to work with other adults involved in the child’s welfare (family, professionals, parents of peers)
- The capacity to perceive vulnerability with compassion and concern
- The capacity to ask for and value help
- The capacity to tolerate negative affects (including anger, disappointment, fear, boredom, frustration, minor pain) without taking impulsive action or assuming the worst
- The capacity to tolerate waiting for own needs to be met
- A sense of humour and capacity for pleasure
Again, there are no checks in place to see if parents can even get close to exhibiting these basic standards and many parents in a divorce have a higher risk of mental disorders exhibit characteristics that are the opposite of these qualities. A mental health screening would yield valuable information to see if parents have the capabilities listed above, but they are rarely used.
Custodial Parents and Unemployment
In contradiction to the frequent assertion that courts care about a parent's ability to support children, the number of custodial parents who do not work at all has been relatively high and has increased since the late 1990s. Grall's 2020 census data on the employment of custodial parents spans between 1993 and 2015. The number of custodial single parents who did not work at all was 9.3 percent for fathers and 27.6 percent for mothers in 1993. This is notable because teen pregnancy rates were higher in 1993 than they were in the 2010s, so many single custodial parents were probably still finishing high school and living with family at that time. This dropped to an all time low of 6.5 percent unemployment in 1997 for fathers and to an all time low of 18.8 percent for mothers in 2001. However, during the late 90s and into the 2000s, the number of single parents who were employed dropped even as the teen pregnancy rates dropped. So more single parents were adults, but fewer were working. In 2015, 13.4 percent of custodial fathers and 19.9 percent of custodial mothers (and even higher-- 24.2 percent of mothers in 2011) were unemployed. It is reasonable to assume that many of these custodial parents are adults who are choosing not to work since most are adults and there are jobs available. (2015 was far from the 2008 financial crisis, yet many custodial parents were still not working then.) The jobs available may not be dream jobs, but they do provide some money, and again, these are the statistics for custodial parents who are not working at all. These are parents that are not even employed part-time. In some cases the unemployed parent might be the custodial parent because the other parent refuses to care for the child or by mutual agreement between the couple. And it is fairly common to find mothers who need to receive additional training after a divorce to become self sufficient, though that also doesn't rule out part-time employment as an option in many cases. It is likely that in at least some cases (and probably a fairly high number) a judge has ruled that a parent who is not willing to maintain employment for his or her own and the children's upkeep is the more fit parent. Why is this important? Because courts are giving primary custody of children to adults who will not even support themselves. If these parents are not willing to even support themselves, with some exceptions such as for education and job training, they may not be willing to give a child the necessary attention care that he or she needs to become a functioning member of society. Again, a sort of magical belief that a parent's behavior in other areas of life will have no effect on the child seems to inform many custody decisions.
Basically because the couple is getting divorced and they have children, they are automatically both great parents who should have shared custody. There are no guardrails despite the known risks for abuse and mental instability in contested divorces because that would get in the way of the utopian ideal that almost without exception coparenting will magically work.
Adshead G. Parenting and personality disorder: clinical and child protection implications. BJPsych Advances. 2015;21(1):15-22. doi:10.1192/apt.bp.113.011627 https://www.cambridge.org/core/journals/bjpsych-advances/article/parenting-and-personality-disorder-clinical-and-child-protection-implications/688CAD3F786DDA983982860333AF4A6B
Grall, T. (2020). Custodial mothers and fathers and their child support: 2015. https://www.census.gov/content/dam/Census/library/publications/2020/demo/p60-262.pdf
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