Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, November 12, 2013

Moral Intuitions About Fault, Parenting, and Child Custody after Divorce

Ashley Votruba,  Sanford L. Braver (ASU),  Ira Mark Ellman (ASU College of Law), and William V. Fabricius (ASU) have recently posted Moral Intuitions About Fault, Parenting, and Child Custody after Divorce on SSRN.

Here is the abstract:

Allocations of child custody post-divorce are currently determined according to the Best Interest Standard, i.e. on what is best for the child, as compared to standards of the recent past which weighed fairness to the parents or parental fault (or marital misconduct). Since any such evolving standards rest so fully on changing cultural norms, an important question is how these standards correspond to the moral intuitions of lay citizens asked to take the role of judge in hypothetical cases. Do factors such as whether one parent had an extramarital affair influence their custody decision-making? In the current studies, a representative sample of citizens awaiting jury service were first given a neutral scenario portraying an “average” family. Almost 80% favored dividing custodial time equally between the two parents, replicating our earlier finding. Then, in Study 1, they were given a second, Test case, vignette in which either the mother or the father was said to have carried on an extramarital affair that “essentially ruined the marriage”. In Study 2, either the mother or the father was said to have sought the divorce, opposed by the other, simply because he or she “grew tired” of the marriage. For both Test cases, more than half the respondents made little or no adjustment to their parenting time allocation, but a substantial minority did, awarding the offending parent significantly less parenting time. While one might guess some respondents would be motivated to punish the adulterous parent, we believe it less likely they would believe it appropriate to punish a spouse who sought to end marriages they no longer found satisfying. Given that there was relatively little difference in our respondents' reactions to the two test cases, we therefore considered explanations, for the responses of those who did reduce parenting time, that could apply equally to both test cases. We suggest two possibilities: 1) they find the behavior in both test cases evidence that the offending parents' commitment to parenting is deficient, since they were willing to risk imposing divorce on their children by their behavior, or 2) a spouse who imposes the burden of parental separation on the children by causing divorce should be penalized, not for the offensiveness of their conduct, but for the harm they caused their children by bringing about the divorce.


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