Custody!  What an ugly word. It provokes images of a criminal arrest. “Take the perp into custody.” And visitation? How insulting is that to be “awarded visitation” with your own child? Those are awful terms that by themselves create tension, dissention, abstention and an environment of conflict. Divorce is hard enough without adding pain and insult to the process.
Which spouse would take care of the kids had never been an issue before Governor Ronald Reagan signed the California Family Law Act of 1969, ushering in the first no-fault divorce in America. (The first no-fault in the modern world was enacted in 1917 as part of the Russian revolution.) But the Family Law Commission responsible for devising no-fault divorce said, “We’re not going to deal with child custody and child support. We’re going to make this a non-adversary process.”
And yet the California family law summons says, in a prominent box, “you have been sued.”  Continuing, the use of the words guaranteed to stir emotions, “custody” and “visitation,” along with modifiers “sole” as a choice, is hardly likely to promote the idea of non-adversariness; quite the opposite.  This is a vestige of former religious control of families.
All other states eventually adopted their own versions of “no-fault,” the last being New York in 2010. And each still retains litigation as the default process of ending a marriage and determining parenting rights and obligations between the adults.

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