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75 Marq. L. Rev. 628
Spring, 1992
Comment
*628 STRUGGLING WITH INDETERMINACY: A CALL FOR
INTERDISCIPLINARY
COLLABORATION IN REDEFINING THE "BEST INTEREST OF THE
CHILD" STANDARD
Lynn M. Akre
Copyright © 1992 by the
I. INTRODUCTION
Society relies on rules of law to provide objectivity and
predictability in the decision-making process. Unfortunately, no rule of law is
ever absolute, and the best interests of the child doctrine is no exception.
Legal doctrines are molded and shaped by many societal forces; as if suspended
in mid-air, they are vulnerable to attack by the social sciences, political
ideologies, our physical and social environments, and legal discourse itself.
Yet, legal doctrines are dependent upon these same forces to provide meaning
and authority to their existence.
Human intelligence and experience bring variability to the
interpretation and understanding of legal rules and doctrines. This variability
creates contradiction or tension within the rules themselves, resulting in
multiple levels of indeterminacy. Although it is likely that there may never be
a resolution for the indeterminacy of the best interests of the child doctrine,
continuous interdisciplinary discourse can help decision-makers to better
understand the complexities involved in child development. Ultimately, a deeper
understanding of the developmental needs of children will allow the application
of the best interests doctrine to truly serve the needs of children.
An obvious first step toward resolving the indeterminacy
[FN1] of the best interests standard is to learn what is in a child's best
interest. The source for this information is those who study the developmental
needs of children [FN2] and the effect of the environment or social context
within which they *629 live. It seems as though social scientists are the
appropriate "experts," if any exist, to provide this necessary
information. [FN3] In our complex, technically advanced, and professionally
specialized society, it is now more appropriate than ever to recognize
professional limitations and to reach out to other disciplines to educate
ourselves completely. A refusal to do so could be motivated only by apathy,
ignorance, or arrogance.
The law is not an exact science, if it is a science at all.
[FN4] It does not merely revolve around its own principles, but rather around
those which it takes in from other sources. Law is the thought and reason that
provides meaning and structure to the information or material received from
other disciplines. [FN5] As a source of reason and structure, the law is a
"powerful instrument of moral pedagogy, conveying important messages about
responsibility and obligation." [FN6] If the law is to retain its status
of respected teacher and judge, legal practitioners must be educated about what
they profess to teach and judge.
Understanding the developmental needs of children will
provide objectivity to custody determinations and will contribute on a wider
scale to the state's interest in the welfare of children. It is generally
accepted that developmentally healthy children grow to be healthy, mature,
responsible, and productive members of society. Conversely, unhealthy children,
whose developmental needs have not been met, grow into immature adults who are
unable to respond to societal demands and thus, are often unproductive and
sometimes dangerous adults. [FN7] Because today's child is tomorrow's future,
[FN8] it is appropriate that the state's interest in the future of society runs
with *630 the children. [FN9] It logically follows that to guard and promote
fulfillment of children's developmental needs as a basic right is to promote
the health of society. [FN10]
Consistent with the quest for a more thorough understanding
of the needs of children and the concomitant application of the best interests
doctrine to fulfill those needs, this Comment asserts that interdisciplinary
corroboration, and particularly social science research, can provide insight and
guidance to the indeterminate best interests standard. Knowledge gained from
social science research should be the basis for judicial and legislative
policies created to promote the best interests of children. Although social
science research is inexact by nature, it contributes generally applicable
principles about child development and provides an arena for informed discourse
produces far more reasoned decisions than mere "raw judicial
intuition." [FN11]
*631 This Comment begins with a brief historical perspective
of the changing role of family law, focusing on its effect on child custody.
Section Two will illustrate through the use of statistics the epidemic of
divorce, its subsequent impact on the traditional family structure, and its
economic consequences. The third section will convey some of the current social
science research findings by examining a few commonly asked questions. Section
Four represents an anecdotal attempt to discover whether divorce-custody
decisions generally comport with the findings of social scientists. Finally,
Section Five focuses on the ongoing debate over the value of social science in
divorce- custody determinations.
Unquestionably, the indeterminacy of the best interest
doctrine poses a most difficult situation for the judge faced with the awesome
responsibility of securing a child's future well-being. These difficulties will
be analyzed to determine what needs of the child must be considered and how the
doctrine should be applied to promote fulfillment of those needs. Some
commentators suggest that current law reforms advocating joint custody, [FN12]
mediation, [FN13] and independent representation for the minor child [FN14] are
in *633 themselves in the best interest of the child. Of course, there are
others who disagree. [FN15] This Comment concludes that despite the
difficulties the indeterminacy *634 of the best interest standard presents, its
fundamental purpose of serving the interests of children is a proper and
justifiable end. The means to achieve that end can best be advanced through
interdisciplinary efforts. It is particularly appropriate, given the complex
nature of the issues involved in custody determinations, to gain a better
understanding of the impact of divorce on society, on parents, and especially
on children. Continuous cooperation among disciplines will only serve to better
define the best interest standard, which, in turn, will allow the legal system
to better serve society and its children.
II. HISTORICAL DEVELOPMENT OF CHILD CUSTODY
A review of the history of American family law provides a
framework for analyzing the role of social science in custody determinations.
Over the years, family law has changed to reflect the social context of the
times. It is continuously affected by the interplay between government, social
and cultural changes, developments in technology, and legal innovation. [FN16]
It has served a variety of social functions from simple pedagogy in colonial
In the seventeenth century,
Increased population growth and the expansion of a market
economy slowly undercut paternalistic social control, and an emphasis on
personal privacy emerged. [FN23] The turn of the century brought the Industrial
Revolution, [FN24] increasing support for women's rights, and child labor laws.
A new system of family law was created which emphasized a more romantic view of
the family, women in a virtuous domesticated role, and a conception of children
as innocent and vulnerable. [FN25] The growth and advancement of the Industrial
Revolution brought improved nutrition, medicine, and new social institutions
and organizations for education and personal development. [FN26] With increased
expectation of longevity, the child's dependency was prolonged and intensified.
Now more than ever parents held the fate of their child in their own hands,
elevating the meaning of parenting to a higher level of complexity and social
obligation. [FN27] Increased awareness of the plight of the child prompted
states to adopt the doctrine of parens patriae, [FN28] which affords the state
the right and duty to watch over those responsible for a child's care. This
doctrine further allows the state to limit parental authority and to intervene
when necessary for the child's well-being. [FN29]
In custody determinations, courts initially relied on the
parental preference rule; [FN30] a rule deeply rooted in society's perception
that the traditional nuclear family provided the optimal environment to raise
children. [FN31] This presumption could be rebutted only in limited
circumstances, [FN32] for example, if a natural parent was deemed unfit, either
because the parent posed a *636 danger to the child or was abusive or
neglectful. The state, in its role of parens patriae substituted
decision-making through the courts, on behalf of the child. [FN33]
Traditionally, when the court acted through its parens patriae power, the judge
was vested with broad discretion to act in the child's best interest. This
theoretically discounted the need for independent counsel to guarantee
protection of the due process rights of the child. [FN34]
By the middle of the nineteenth century, the "tender
years" rule emerged and the focus turned to "the 'happiness and
welfare' of the child and the 'fitness' and 'competence' of the parents."
[FN35] These presumptions reflected the belief that a child's biological
parent, in particular, the mother, had a superior right to the child's custody.
The underlying assumption was that the minor's vulnerability and inability to
make reasoned decisions, coupled with the importance of the parental role in
child rearing rendered the parents the appropriate decision makers. [FN36]
Consistent with this belief, the United States Supreme Court recognized a
"fundamental liberty interest of natural parents in the care, custody, and
management of their child." [FN37] This right was premised on the belief
that parents will be led to act in the best interest of their children by their
natural bond of affection. [FN38]
The late nineteenth century saw a trend toward increased
social control and the function of family law as an instrumental means to
enforce marriage *637 contracts, assign rights, and enforce the moral ideals of
family law. [FN39] However, by the twentieth century, a resurgence of
individual rights, autonomy, and gender equality once again transformed the
focus of family law. [FN40] During this time, a new therapeutic ideology
signalled the advent of family law courts, juvenile courts, and other reforms
championed primarily by the influence of psychology and clinical studies of the
family. [FN41]
The development of specialized courts, the movement toward
less adversarial forums, and the influence of psychology and the social
sciences all contributed to a fundamental shift away from viewing family law in
moral terms, such as fault and moral fitness. [FN42] States conformed to the
new ideology by adopting no-fault divorce and by abandoning the "tender
years" doctrine because of its bias in favor of mothers. [FN43] By the
1970s, the "tender years" doctrine was replaced by the more neutral
but less certain "best interest of the child" doctrine. [FN44]
However, there is evidence that the best interest doctrine
has existed since 1881 when Justice Brewer in Chapsky v. Wood highlighted
concern for the child by writing: "Above all things, the paramount
consideration is, what will promote the welfare of the child?" [FN45]
Ironically, even with the increased emphasis on the importance of the child as
an individual, it was not until 1967 that the United States Supreme Court in In
re Gault finally viewed the child as a person rather than property. [FN46]
Following society's emphasis on the importance of the
individual, custody decisions are now to be made with the utmost consideration
for the *638 child's needs. [FN47] The best interests doctrine has undergone
numerous changes over the years and has been predominated by various
presumptions. While commentators continue to criticize it for its inherent
subjectivity and amorphous quality, the doctrine remains the current governing
standard in virtually all child custody determinations across the fifty states.
[FN48] Although most state statutes delineate certain factors to be considered
in determining the best interest of the child, [FN49] it is doubtful that a set
formula will ever exist. The variable nature of the modern family will continue
to require that such determinations rest on the facts of each case.
III. THE CONSEQUENCES OF DIVORCE
A. Statistical Findings
Divorce is no longer considered a time-limited crisis.
Rather, marital dissolution is often only the beginning of a potentially
long-lasting adverse situation which is continually harmful to the child. The
epidemic of divorce, the high probability of remarriage, and the increasing
number of *639 children born to unmarried mothers [FN50] evinces a fundamental
shift away from the nuclear family. Consequently, a pressing need exists to
assess the emotional and developmental needs of children growing up through a
series of family transitions.
Current data bears out the reality of the divorce epidemic.
The rate of divorce has more than tripled since 1950. [FN51] In 1975, it was
projected that forty-four percent of all marriages would end in divorce. [FN52]
Although the divorce rate fell between 1979 and 1985, the decline was only
slight. [FN53] Every year, more than a million children under the age of
eighteen are affected by family dissolution. [FN54] However, the time spent in
a single-parent household may be relatively short, because eighty percent of
men and seventy-five percent of women eventually remarry. [FN55] Thus, many
children who spend time in a single-parent family will likely be required to
make yet another adjustment into a step-family. [FN56]
Moreover, subsequent marriages experience a higher rate of
divorce than first marriages, [FN57] indicating that today's children may be
faced with a series of family transitions and continual readjustment.
Compounding the stresses of remarriage is the lengthy period required for
children to adjust to remarriage, which appears to extend beyond the adjustment
period for divorce. [FN58] The projected effect of this data is that
twenty-five percent of all children are living with only one parent. [FN59]
Persistent instability resulting *640 from family transitions may ultimately
contribute to the fact that three-quarters of children of divorce are likely to
experience their own divorces. [FN60]
Although the long-range effects of numerous family
transitions and concomitant instability are impossible to predict with accuracy,
it is believed that they hamper a child's academic and emotional development.
[FN61] Compounding this fact is the practical reality that the economic
well-being of the child and his or her family will be negatively affected as
well.
B. Economic Impact
The high divorce rate negatively impacts the economic health
of all involved. Issues of support and maintenance necessitate economic
inefficiency for a separated family. [FN62] However, divorce has a particularly
detrimental economic effect on a majority of women and their children.
Well-documented evidence shows a direct link between the economic consequences
of divorce and what has come to be known as the feminization of poverty. [FN63]
A study conducted by Lenore Weitzman found that divorce resulted in only a
nineteen percent loss of income for men, while divorced women lost an average
of twenty-nine percent of their pre-divorce income. [FN64] As a result of the
reduced income, women experienced a seventy-three percent drop in their
standard of living within a year after divorce, whereas divorced men
experienced a forty-two percent increase. [FN65] In addition, seventy percent
of divorced women reported experiencing greater hardships and stress, [FN66]
which in turn led to negative feelings about their life circumstances. [FN67]
One positive and unexpected result was the increased level of competence and
self-esteem the majority of both women and men reported after divorce despite
their financial strain. [FN68] These statistics suggest, however, that if the
current trend continues, a two-tiered society will result with the lower
economic tier being comprised of never-married single women and their children
and the upper economic tier being dominated by men. [FN69]
Although income inadequacy produces its most serious impact
on those below the poverty level, it is the middle-class children and their
mothers who experience the greatest relative deprivation. At a most basic
level, these children express resentment and anger when forced to adjust to a
lower standard of living. Income inadequacy has been found to be a significant
factor in accounting for anxiety and depression among pre-school children from
divorced families; however, similar emotional effects have not been found among
pre-school children from intact families with similar financial status. [FN70]
A myriad of economically motivated transitions confront these children,
including moving to new and less secure neighborhoods, changing schools, losing
friends, taking on additional family responsibilities, and being deprived of an
anticipated private education. [FN71] As a result of adjusting to these new
economic realities, many children experience increased anxiety and stress. Low
academic achievement and low IQs have also been related in part to economic
factors. [FN72] Hence, economic deprivation, while only part of the formula, is
an obvious and significant consideration in determining custody.
C. The Social Context
The scope of current statistics strongly suggests that
substantial deterioration has occurred within the nuclear family. [FN73] Family
structure today varies from the traditional nuclear family to single-parent
households, blended family environments, same-sex parent families, dual-income
families, and *642 adoptive families. [FN74] Today's family structures are
often characterized by mutual independence and autonomy, [FN75] which sharply
contrasts with the traditional nuclear family's emphasis on mutual dependence,
caring, and subordination of self to family. [FN76]
The nuclear family's historic togetherness served to protect
young family members from the harsh realities of society. [FN77] The postmodern
family, however, lacks these same sentiments resulting in a permeability which
exposes today's youth to societal influences while they are still immature and
vulnerable. [FN78] The common perception is to view these youths who are thrust
into society's forces as competent and sophisticated. [FN79] However, the
reality is that these children are developmentally unprepared to face these
pressures. The result is what has come to be known as the "new
morbidity." [FN80] Postmodern morbidity is the increase of stress-related
dysfunction, which accounts for the majority of deaths among young people.
[FN81] The increase of psychological and social pressures on today's youth is
attributed, in part, to the breakdown of the family. Family breakdown
translates to a lack of protection for the innocent and developmentally immature,
and a lack of guidance toward gradual autonomy. [FN82] Unfortunately, the law
has, to some degree, fostered the increase in psychological and social
pressures by affording children more adult rights, while ignoring their right
to protection and fulfillment of basic developmental needs. [FN83] Lawmakers
must accept partial responsibility for postmodern morbidity. They must also
*643 understand and take into account the limits imposed by human development,
especially when dealing with children. [FN84]
Consequently, it is prudent to question existing legal
presumptions relied upon in custody determinations. Proper inquiry should
consider the current social context [FN85] and the many forces that influence
the physical, psychological, social, emotional, and moral development of the
child when determining custody. The complex interplay of physical health and
environment, economic status, societal pressures, interpersonal relationships,
self-esteem, [FN86] and academic performance on the child's post-divorce
adjustment emphasizes the importance of understanding the totality of a child's
circumstances before decisions are made which will affect his or her lifespan
development. When faced with a divorce-custody decision, the court cannot be
expected to arrive at a decision which is in the best interest of the child
merely by hearing "facts" recited in an adversarial proceeding.
[FN87] *644 Moral overtones, biases, and preconceptions influence the process
and the outcome. In an effort to guard against undue influences and to prevent
the legal field from being heavily swayed by societal stereotypes, an awareness
of the current social and psychological research on child development and the
impact of divorce is necessary.
IV. PSYCHO-SOCIAL IMPACT OF DIVORCE ON CHILDREN
A. Some General Findings
Numerous studies have examined how children, parents, and
society are affected by separation, divorce, remarriage, and blended families.
Emphasis has centered on factors that influence the process of adjustment.
These factors include: the child's age and gender; the nature of previous
relationships with each of the parents and other interpersonal relationships;
the quality and consistency of care received by the child; the quality of life;
the parents' remarriage; economic changes; and the support systems available to
the parent and the child. [FN88] This, of course, is not a finite list, but it
presents some of the principal factors considered. No one can be expected to
have knowledge of all aspects of a child's life, or to understand how these
factors will interact in shaping a child's future well-being. However, there
are some general themes explicit in current research that can guide an
appropriate inquiry into the life of the child and the parents.
Statistics indicate that of women who divorce, two-thirds do
so before age thirty. [FN89] Consequently, most children are pre-adolescent at
the time of divorce and many are under the age of seven. [FN90] Damaging
effects of marital disharmony and the ensuing physical separation of divorce
are found to be most pronounced in children elementary-school age and younger,
because they are not yet able to fully comprehend the relationship between
their parents and their own role in the conflict. [FN91] Accordingly, the focus
of this Comment will be on the younger child. [FN92]
*645 1. What Are Children's Initial Responses to Their
Parents' Divorce?
Although the divorce itself is a traumatic event for
children, it is not merely a single event happening at a particular time that
creates the developmental danger for the child. The destructive force of
divorce begins with the atmosphere of conflict that existed when the parents
were still together and continues as the parental conflict persists after
separation. [FN93]
Nearly all children experience a sense of vulnerability,
fear, and anxiety following separation. They express anxiety about their future
and their future relationships with their parents. They believe that if the
marital tie can be broken, so can the parent-child relationship. The depression
they show over their sense of loss may manifest itself in restlessness,
sleeplessness, compulsive overeating, psycho-somatic complaints, and difficulty
in concentrating. [FN94] Over half these children feel rejected by one or both
parents, while at the same time they feel conflicting loyalties, anger at their
parents, and guilt for causing the family rupture. [FN95]
2. How Are Children Harmed by Divorce?
Impact on children is often most acute in the first year
following the divorce or separation. A study of pre-school children found that
all children responded to the separation with acute regression, separation
anxieties, cognitive confusion, aggressive behavior, denial, guilt, and
behavioral and learning difficulties. [FN96] Young school-age children
responded similarly with heightened anxiety, a longing for their fathers,
[FN97] a wish to restore the family, and increased aggression. [FN98] The major
psychopathological finding was depression, resulting in learning problems at
school and difficulties in social adjustment. [FN99] However, if given a
favorable environment, the majority *646 of these children adjusted to a level
of developmental functioning appropriate for their age within a year following
the initial reaction. [FN100]
Five years after the divorce, it was discovered that a
child's level of adjustment depended primarily on the following factors: how
well the parents had resolved their own interpersonal conflict, [FN101] the
custodial parent's manner in dealing with the child, the continuity of a
relationship with the non-custodial parent and acceptance of that relationship
by the custodial parent, and the child's own coping mechanisms and resources.
[FN102] These coping mechanisms and resources include: intelligence; outside
support systems available to the child; the child's gender; and age of the
child. [FN103] These factors and their impact on the individual child greatly
shape the child's developmental adjustment.
Those individuals who adjusted most successfully were
resilient children who showed a strong "capacity for commitment and the
use of their imagination and intellectual potential." [FN104] Of the less
successfully adjusted children, more than one-third remained acutely unhappy
and dissatisfied with their lives. [FN105] These children felt rejected or
unloved by one of the parents and were disappointed with the visiting
relationship with the non-custodial parent. [FN106] The remaining thirty-seven
percent were still moderately to severely depressed. This depression often manifested
itself in the form of chronic and intense unhappiness, sexual promiscuity,
delinquency, poor learning, apathy, intense anger, and a sense of intense
emotional deprivation. [FN107]
Most studies have shown that although children who
experienced a marital dissolution were significantly worse off than those who
did not, equilibrium tended to be achieved within two years after the divorce.
However, additional studies are needed to discover if divorce and its attendant
circumstances produce any long-term effects. At least one study has suggested
that "adverse effects for young children tend to be fairly stable, at
least in the aggregate, over a substantial period of time." [FN108] There
is also *647 evidence that half of these children grow up to be "worried,
underachieving, self-deprecating, and sometimes angry young men and
women." [FN109] One possible explanation for continued adverse effects is
that "marital dissolution is not an isolated event but only the beginning
of a continuous exposure to a long-lasting adverse situation that produces
cumulative effects on the child." [FN110] Post-divorce children forced to
adjust to life with a single-parent or with a step-family showed significantly
lower academic achievement and were found to be "two to three times more
likely to have emotional and behavioral problems than those in intact
families." [FN111]
3. Are the Effects of Divorce More Severe for Boys Than for
Girls?
Some researchers have found that boys respond more
negatively in mother-custody arrangements, and that girls have difficulty
adjusting to the addition of a stepfather into the family. [FN112] The early
research was done primarily with mother-custody households, since approximately
ninety percent of children reside with their mothers following divorce. [FN113]
Boys from divorced families compared with boys from nondivorced families showed
higher incidents of antisocial, noncompliant behaviors in home and in school.
They also exhibited problems with interpersonal relationships and school achievement.
[FN114] Boys in the custody of their fathers, however, showed more mature,
socially appropriate, and independent behaviors than did girls in the custody
of their fathers. [FN115] Girls in the custody of their mothers showed
virtually no developmental difficulties until their mothers remarried. [FN116]
The introduction of a stepfather, however, seemed to improve the adjustment for
boys. [FN117] The suggestion is, therefore, that a child will adjust better in
the custody of a parent of the same gender.
*648 However, these findings may simply indicate that boys
are more likely than girls to be exposed to or react to parental conflict with
outward expressions. [FN118] One study has found no differences between boys
and girls in the consequences of marital dissolution, although there was still
some support for the theory that boys adjust better when their mothers remarry.
[FN119]
4. What Impact Does Parental Conflict Have on the Child's
Development and Psychological Health?
The presence of conflict in the home has a pervasive and
destructive influence on children's development. [FN120] A child's adjustment
to family reorganization is affected more by the ongoing interaction of the
parents than by the separation or divorce alone. This is evidenced by a finding
that children in conflict-free single parent families exhibit fewer behavior
problems than children in intact but conflict-ridden families. [FN121] In fact,
some researchers attribute post-divorce dysfunction to pre-divorce family
conflict. [FN122] Other researchers find that although children of divorce do
not function as well during the first year following divorce as children in
intact high-conflict families, the difference between children in high-conflict
intact families and low-conflict divorced families appeared to disappear two
years after divorce. [FN123] This indicates that the divorce and its attendant
circumstances *649 is a more significant causative factor of dysfunction than
pre-divorce conflict. [FN124]
In the divorce context, parental conflict often manifests
itself in a bitter battle over the child, placing the child in the center,
forcing the child to choose between conflicting loyalties, [FN125] and leaving
the court to decide issues of access and custody. It is generally accepted that
custody litigation produces more harm than good, and it is the children who
suffer most. [FN126] Parental conflict is intensified by protracted custody
litigation, [FN127] and the greater the degree of interparental conflict, the
greater the psychological maladjustment of the child. [FN128] Critics of the
best interest standard argue that a more determinate standard would remove
custody issues from the courts. Parents would have less incentive to litigate,
thereby reducing the experience of conflict for the child. [FN129]
Continued conflict between the parents will likely
precipitate the gradual loss of contact with the non-custodial parent,
especially if the noncustodial parent remarries. [FN130] In addition,
noncustodial fathers report gradual disengagement with their children because
their sense of loss and bereavement in addition to artificial access conditions
make a disjointed relationship too painful to continue. [FN131] This is an
unfortunate consequence, because most children express the desire to maintain a
relationship with both parents, and such continuity has been shown to
facilitate the child's adjustment to post-divorce life. [FN132] Hence, every
effort should be made to *650 reduce the conflict between the parents instead
of encouraging acrimonious personal and legal battles in an adversarial
fashion. To truly serve the best interest of the child, the legal profession
should seek to minimize litigation by encouraging alternative methods of
custody dispute resolution, which reduce the experience of conflict for the
child.
5. What Effect Does Divorce Have on the Quality of the
Parent-Child Relationship?
The quality of care a child receives does not depend
directly on family structure, [FN133] nor does it directly relate to the
quantity of care. [FN134] Rather, quality care is dependent on the nature of
the interpersonal relationship between parent and child. [FN135] A positive
relationship is defined by the kind of interaction between parent and child,
not the frequency of these interactions. A predictable, stable, controlled, and
responsive environment provides some evidence of quality care and is integral
to child development. [FN136] However, stressful life transitions inherent in
parental divorce challenge and often disrupt this environment and subsequently
disrupt the child's developmental pattern.
In addition, divorce is often followed by a period of
diminished parenting. [FN137] Diminished parenting is the decreased
availability of the parent to the child, and less interaction with the child in
general. [FN138] This is often coupled with uncommunicative, erratic behavior
and escalating inappropriate expressions of anger by the parent. [FN139]
Although the parenting skills typically improve within a few years after the
divorce, this lapse of concern for the child occurs at a critical time in the
child's development. [FN140] During this time, the child is experiencing
significant psychological, emotional, and developmental transitions that
require stability and emotional support from the parent. [FN141] As a result of
their competing individual needs and emotional stresses, the parent and child
may exacerbate each other's *651 problems. [FN142] A further compounding factor
is the general decline over time of the relationship between the child and the
noncustodial parent. [FN143] This decline is often hastened when the
noncustodial parent remarries or becomes emotionally attached to someone else,
creating heightened emotional distance between biological parent and child.
[FN144]
If the quality of the parent-child relationship is strong
both before and subsequent to divorce, the pathology caused by the stress and
confusion of divorce may be avoided. [FN145] Children of divorce desperately
need this protection, and if a child is not afforded a quality parental
relationship, he or she must find support and stability from some other source.
6. What External Support Systems Are Available to the Child?
The primary structure and support for a child is typically
found within the family environment. When this environment breaks down,
children look to fill the gap. Because school represents one of the most
continuous and structured institutions in a child's life, it plays an important
role in adjustment to divorce. [FN146] Schools that offer warm, structured,
predictable, and disciplined environments serve as a buffer for children of all
ages who are undergoing stressful experiences. [FN147] However, the child's
ability to utilize the school environment in this manner varies with age,
intelligence, and psychological development. [FN148] Younger children mainly
seek comfort and security from the teacher. An older child may also receive
comfort, but additionally may benefit from the solace and support of peers as
well as teachers. [FN149] Teachers, peers, and the school environment all help
the child's adjustment process by offering security; a sense of stability; and
validation of the child's self-worth, competence, and personal control. [FN150]
Schools also aid the child's moral development, which is often disrupted by
*652 family breakdown. [FN151] A period of decreased love and support for the
children and little or no good role modelling often follows from the family
breakdown. [FN152] Schools can assist children during family dissolutions by
providing the tools of evaluation and critical thinking, [FN153] which children
can use to help understand their situation and which may ultimately help the
child put the divorce in perspective.
Children may also turn to other family members such as
siblings and grandparents for support and comfort. Positive sibling
relationships may fill emotional voids left by unresponsive parents and offer
protection against the stresses of family dissolution. The most pronounced
effects seem to occur in the advanced stages of the marital transition among
both female siblings and older children. [FN154]
Grandparents can act as buffers, if their contact with the
child was and remains continuous. Extended families or situations where the
grandparent is called in to help with the parent's readjustment may offer the
continuity necessary to function as a support system. [FN155]
In addition, a child's interpersonal relationships with
people, other than his or her relatives, may play an important role in
providing emotional support, encouragement, and continuity. These external
support systems can provide the child with a model of a caring when the child's
parents have been unable to completely satisfy this need. Perhaps, more
importantly, they fulfill the emotional void created by the change in family
structure.
*653 7. What Internal Aspects of the Child Have Been Found
to Affect the Child's Adjustment to Divorce?
Temperament and personality are among the important
determinants of children's long-term adjustment to divorce. Temperamentally
difficult children are less adaptable to change and more vulnerable to
adversity than temperamentally easy children. [FN156] As a result, it is
believed that temperamentally difficult children will not cope as well with
increased family stress. [FN157] To explain this belief, one theory suggests
that temperamentally difficult children are more likely to elicit aversive
responses and become the target of parental aggression. [FN158] However,
another study reports that the child's adaptability hinges more on the level of
stress and availability of support than on the child's temperament per se.
[FN159]
Although it is impossible to select one particular internal
characteristic as paramount in predicting a child's adjustment to divorce, the
child's individuality must be taken into consideration, including such factors
as intelligence [FN160] and sense of self-worth. [FN161] The ultimate goal is
to understand the child's future well-being in relation to how the child's
internal characteristics interrelate with their external environment.
*654 8. How Do the Dynamics of Family Environment
Interrelate?
Marital dissolution necessarily forces a redefining and
restructuring of the family system. Altering the family environment
precipitates significant anxiety and doubt for children about their future.
Fortunately, long-term effects of divorce can be limited, or at least modified.
The operative influences on children's post-divorce adjustment appear to be
directly related to maintaining stability and continuity in the child's life.
[FN162] Promoting stability and continuity generally involves maintaining
contact with both parents, [FN163] a reduction in conflict between the parents,
maximal agreement on issues concerning the child, and economic stability in the
custodial parent's household.
Although stability and continuity alone are not sufficient,
they are integrally related to the quality of the parent-child relationship.
Healthy development requires a quality relationship between each parent and the
child. [FN164] A quality relationship, typically includes: sensitivity; caring;
nurturing; providing appropriate discipline and routine; providing support and
encouragement, while at the same time allowing the child's own individuality to
play a role in his or her development; communicating with the child; limiting
family conflict; and increasing understanding. [FN165] This is by no means an
*655 exhaustive list but an attempt to highlight some of the salient factors
that continually appear through research.
It is becoming more evident that a quality parent-child
relationship and the ensuing healthy psychological development of the child
does not necessarily depend on the traditional stereotypes of the nuclear
family. [FN166] Again, the prevailing theme for healthy child development is
the quality of the relationship and interaction with the child, not the
quantity or the context of the interaction. For example, research done on
families where the husband and wife reverse roles showed that a child's perception
of his or her own masculinity or femininity was in no way affected by the
extent of the father's increased involvement in child raising activities.
[FN167]
Other common myths of family dynamics have been
progressively dispelled by research as well. For example, children generally
form an attachment to their caregivers sometime after the beginning of the
second half of the first year. [FN168] Children who do not do so, however, are
not necessarily precluded from establishing healthy emotional bonds later in
childhood. [FN169] The belief that a "blood bond" between a child and
his or her biological parent creates a natural affinity, which makes the
natural parent more fit to raise the child, has given way to the understanding
that it is the social interaction between the child and caregiver that creates
attachment. [FN170] Hence, the foundation of the "psychological
parent" emphasized in legal custody decisions is reinforced through
psychological and sociological empirical research. [FN171] The psychological
parent may be the mother, the father, some other committed caregiver, or in
many cases, all three. There is no evidence showing that multiple-care
arrangements are harmful to the child, as long as there is quality interaction
with the child. [FN172]
The increasing volume of research conducted on marital
transitions and their impact on the child, coupled with the indeterminate
standard of the best interest of the child, has lead to an essential, albeit
natural, collaboration *656 between the social sciences and the legal
profession in child custody determinations. In light of what is known about
child development and adjustment to divorce, an analysis of the totality of the
child's circumstances is required. However, it remains difficult to determine
the proper weight to be given to the numerous factors considered.
Unfortunately, there are no clearly right or wrong decisions when one is
attempting to predict the future welfare of a child.
V. A REVIEW OF CUSTODY DECISIONS
In an effort to discover if recent divorce-custody decisions
comport with the current psycho-social research, a few custody decisions
involving young children will be reviewed. In the absence of an empirical
review of custody decisions, it is difficult to judge the basis for these
particular case decisions with any degree of certainty. An analysis of the
cases chosen for review is merely an anecdotal attempt to relate the value of
social science research to custody determinations. These cases illustrate that
judges and lawyers who deal with custody struggle with the same questions
psychologists and sociologists study. Without the benefit of social science
research, judges and lawyers are forced to rely on their own intuition, values,
and belief structures even though they may be uninformed and thus,
developmentally flawed. In this case review, the decisions will generally
reflect the child development issues currently studied, indicating that courts
are consciously aware of the importance of understanding child development
needs and of the value of social science in custody determinations.
A. Stability and Continuity
In twenty randomly selected cases, [FN173] eight decisions
appeared to turn on the issue of which parent could provide a more stable and
consistent environment. [FN174] Interestingly, six of these eight cases awarded
custody to the father. The oldest child in this group was eight years old at
the time of *657 divorce. Research suggests that children of a young age are
more prone to anxiety, confusion, and depression as a result of the changes in
the family environment. [FN175] Therefore, attempting to maintain as much
stability and consistency as possible for these young children is crucial to
their post-divorce adjustment.
Seven girls and one boy were awarded to the custody of their
fathers. This directly conflicts with the research that indicated children
adjust better under the custody of a parent of the same gender. However, on
balance, stability and continuity are likely to have a more significant impact
on post-divorce adjustment and future development than the gender of the
custodial parent. Moreover, the fact that eighty percent of fathers remarry
will likely diminish the effects gender may have. [FN176]
The particular facts discussed in these cases illustrate
some of the variables courts rely on as indications of future stability and
continuity. Work schedules and personal activities that took one of the parents
away from the home represents conduct which the court characterized as showing
more concern for the parent's own pleasure. [FN177] Also, frequent moves and
conflict in the home [FN178] were given as reasons for the courts' decisions.
In one case, where the mother had been the primary caretaker of the children
for the majority of their lives, the court stated that " t he test is not
which parent was the better custodian in the past but which is a better
custodian now." [FN179] It is interesting to note that courts do not
consider the primary caretaker status alone as determinative of stability and
consistency. Yet, many advocate that the primary caretaker should at least be
given preference, if not the presumption of custody. [FN180]
B. Quality of the Parent-child Relationship or Primary
Caretaker
Five of the twenty randomly selected cases awarded custody
of the young children to the mother based on the conclusion that she had
provided most of the care and parenting for the child on a day-to-day basis
prior to divorce. The fathers, on the other hand, had played only a secondary
*658 role in raising the children. [FN181] Three out of these five cases
awarded the mother custody of the minor son, again contradicting current
research findings on gender. [FN182] None of the courts, however, focused on
the gender of the child as a factor in the decision. This may indicate a lack
of awareness of the research findings, or it may simply show that the quality
of the parent-child relationship was given more weight. Indeed, the latter
approach is more consonant with the research. The quality of the parent-child
relationship both before and subsequent to the divorce is a positive indicator
of successful adjustment. [FN183]
Some specific examples of factors which appear to have
weighed heavily in the courts' decisions include: the mother's presence in the
home performing traditional homemaking tasks while the father was away from the
home working; [FN184] the fact that the father did not show much interest in
caring for the child until after separation; [FN185] the father's ignorance of
his child's personal habits; and the father's lack of knowledge concerning the
child's daily educational, religious, social, and physical activities, while
the mother "devoted full time to and took an active interest in every
facet of the child's upbringing." [FN186] One case showed a presumption
for the biological parent even though the child had been in the care of her
grandmother from age two to age four, and had not been visited by the
biological parent on a regular basis. [FN187] Under the circumstances, however,
the court believed that *659 a return of custody to the natural parent would
promote the long-term best interest of the child and provide continuity to the
child's life. [FN188]
The oldest child in this selected group of cases was four
years old at the time of divorce. [FN189] Young children, in particular, need
stability and continuity in their environments, especially in times of
stressful life experiences, such as the loss of a parent. The courts'
consideration of which parent provided the child with the most consistent and
responsive care regardless of the gender of the parent or child may be
reflective of an awareness of the child's needs and an effort to best serve
those needs.
C. Continuity of Relationship with Both Parents Following
Divorce
In four of the opinions reviewed, custody was awarded to the
parent who the court believed would provide the child the best opportunity to
continue a positive relationship with the noncustodial parent. [FN190]
Interestingly, all of these cases awarded custody to the father, regardless of
the child's gender or age. One case awarded custody of the parties' two year
old son to the father. While recognizing that the mother had been the child's
primary caretaker, the court found that the father "displayed a greater sensitivity
to the child's needs, and would be more likely to facilitate and encourage
visitation . . . ." [FN191] Conflict over visitation arrangements and one
parent's intentional efforts to deny visitation to the other parent by removing
the child from the state were found to be inconsistent with the child's best
interest. [FN192]
In a transfer of custody case, the Wisconsin Court of
Appeals considered testimony from a psychologist who had not actually met with
the mother or the child, but testified that "anxieties would normally be
expected on the part of the child who has maintained a close association with
the non-custodial parent on being suddenly deprived of that association."
[FN193] These decisions may indicate an awareness of the importance of maintaining
*660 a relationship with the noncustodial parent and acceptance of that
relationship by the custodial parent. However, transferring custody to the
parent who the court finds most willing to support the child's continued
relationship with the other parent may be initially disruptive of continuity.
The struggle faced by judges of these potentially
conflicting concerns demonstrates again the need to rely on empirical research
for guidance. Without guidance, courts only have subjective emotional material
upon which to base their predictions. In this realm, best guesses, best
interpretations, and impressions are ultimately what is relied upon. If the
courts are aware of the psychological and sociological data, they can at least
make an educated guess.
Recognizing that this cursory treatment of a relatively
small number of custody decisions cannot possibly reflect the multitude of
complex factors that courts consider in determining custody, it nonetheless
demonstrates some of the predominant and recurring themes relied upon. These
themes generally coincide with those emerging from current social science and
psychological research, and demonstrate a natural and necessary alliance
between the legal profession and behavioral scientists. Although there is
ongoing debate about the value of social science in the law and the use of the
mental health professional in deciding custody disputes, it seems the benefits
to be gained on behalf of the children, their parents, and society far outweigh
the concerns raised by the inexactness of the social sciences.
VI. THE VALUE OF SOCIAL SCIENCE IN DIVORCE-CUSTODY
DECISION-MAKING
When custodial arrangements are agreed on by the parents,
the court has a duty to scrutinize the agreement for fairness to all involved,
without infringing on the constitutionally protected right of family autonomy.
In contrast, when custody is contested, the court is obligated to intervene on
behalf of the child under its parens patriae power to arrive at a custody
arrangement that is in the child's best interest. [FN194] The difficulty facing
the court is two-fold. First, how can the court fully investigate the child's
circumstances without infringing on the constitutionally protected privacy
interests of the parents? [FN195] Second, what factors should the court rely on
in determining the custody arrangement which will best promote the child's
welfare? The first inquiry will be addressed in the following analysis.
However, the constitutional issues raised by this analysis are beyond the scope
of this paper. Focusing instead on the second strand of the inquiry, the
advantages *661 and disadvantages of the use of social science in
divorce-custody determinations will be discussed in more depth.
It is well settled that the complex interplay of a child's
physiological make-up, psychological well-being, and social environment renders
accurate predictions of the child's future welfare an impossible goal. Yet, an
understanding of this interplay and its impact on the child's life is clearly a
better alternative than resting on the belief that the adversarial process will
bring forth the information essential to determining the child's future.
Adherence to the best interest of the child standard
requires the court to focus on what the child needs for healthy development.
"Ideally, the task of the court is to discover the child's physical,
emotional, and developmental needs and attempt to satisfy them rather than to
referee an adversarial contest for custody between two or more parties."
[FN196] To ascertain the necessary information, both the child's needs and the
parents' parenting ability must be evaluated. [FN197] Various methods have been
proposed to gather this information, but no consensus has been reached. [FN198]
The use of experts employed by the respective parties raises the obvious
concern that testimony will be biased in favor of the party who employed them.
The use of social science experts appointed by the court raises both
evidentiary and due process concerns. [FN199]
*662 Mediation is one possible answer to how the court can
obtain information important to resolving a custody dispute without violating
protected privacy interests. Mediation often employs the use of mental health
professionals to assist in custody determinations in an extra-judicial process.
[FN200] Under these circumstances, there is typically less protection for the
parties' due process and privacy rights. In theory, the parties are
volunteering information freely about themselves. Thus, there is less concern
that rights will be violated. However, mediation in custody determinations has
received mixed reviews, and additional study is necessary to determine its
effectiveness. [FN201] Some commentators still advocate that the traditional
adversarial process remains the best way to ferret out the relevant
information, while affording the greatest protection to constitutionally
protected rights. [FN202] A combination relying on mediation of custody in the
first alternative, and the traditional adversarial process as a reserve forum
for parties not able to reach a custody agreement may provide the best
approach. [FN203]
A continual quest for the most effective and just method of
custody determination should be the agenda rather than the persistent battle
that is now waged among professionals involved in family law. [FN204]
Professionals should strive to understand the complexity of custody
determinations. However, this involves a willingness to look to other
disciplines for information relevant to the issue, [FN205] and recognize their
strengths as well as their weaknesses. What is advocated is fundamental
research on issues surrounding custody before policy changes are implemented.
This research explores the "underlying social forces, the needs to be
served, the probable consequences of change, and so on." [FN206]
Fundamental research recognizes that there is no "quick fix" to the
problems created by divorce and custody, *663 and that resolution ultimately
depends upon social and psychological factors. It is an attempt to understand
the totality of a situation before suggesting reform, and an attempt to predict
the probable outcomes before implementation. Logically, it requires reliance on
multiple disciplines whose studies focus on various aspects of the whole.
A. Disadvantages of Social Science
There are several legitimate concerns regarding the use of
social science research and mental health professionals in divorce-custody
determinations. Effective implementation of these disciplines into the legal
process necessitates an understanding of some of their inherent disadvantages.
The research methodology employed by social scientists involves testing
specific hypotheses by measuring a limited number of variables, while holding
all other variables constant. [FN207] Although this results in a fairly good
understanding of particular variables under specific circumstances, it severely
limits the ability to generalize the results to other contexts. [FN208] Those
who are not trained to interpret these findings may be tempted to generalize
from the small, select, and often unrepresentative samples to the population as
a whole. The high probability for misinterpreting the sample for the whole
leads to an increased danger that the interpretation will be unfairly
prejudicial and emotionally detrimental to those involved in a custody dispute.
[FN209]
Social science conclusions applied beyond their scope may be
wrongly used "to justify questionable custody awards, functioning as the
cover under which unacceptable decisional factors gain expression."
[FN210] Moreover, judges and lawyers who feel ill-equipped to make the "correct"
decision as to the child's best interest in a difficult case may give undue
credence to psychological testimony and findings as a means of escaping this
difficult task. [FN211]
As a pragmatic discipline, the law strives for consistency
through fully informed and reasoned decisions. Theoretically, the law must rely
only on objective measures of reliability and impartiality of scientific
judgments and *664 must screen out those that fail to meet the measure. [FN212]
In an effort to minimize the risk that legal determinations will be made on the
basis of misinformed or misinterpreted judgments, lawyers and judges are
expected to reveal the scientific premises on which they rely. [FN213]
Adherence to the professional boundaries between law and science is encouraged
as a means to achieve objectivity. [FN214] Hence, judges and lawyers are
cautioned to refrain from acting as psychologists or child development experts,
and child development experts likewise should refrain from acting as judges.
Unfortunately, the methodological research approach makes it
impossible to account for the multitude of variables that affect child
development. There will always be uncertainties as to how the variables
interact and whether significant extraneous variables have been unaccounted
for. Some predict that if these findings and theories are adopted, regardless
of their inherent inexactness and weak predictive value, the law will become a
precarious forum for resolving custody disputes, "rendering it subject to
the vagaries of the latest scientific discovery." [FN215]
A more covert problem inherent in social science research is
the pervasive influence of the researcher's own biases and values on designing,
implementing, and interpreting the research. [FN216] This results in a facade
of rationality and objectivity given to scientific assumptions, when
alternative explanations of the interpretation may be possible. [FN217] Critics
argue that those who believe research findings are objective ignore the
qualitative nature of experiences which are not susceptible to quantification.
[FN218] These critics believe a serious danger exists that legal policy-makers
will misuse social science studies to support their own political and
ideological positions by shrouding them in a scientific mantle designated as
objective and neutral. [FN219]
*665 Furthermore, critics fear an increased risk of error
due to the interjection of human judgment whenever psychological assessments of
a parent or child are relied on. Because psychological assessments are subject
to the biases and preconceptions of the examiner, they may result in judgments
which are unfairly prejudicial and inaccurate. [FN220] "Well-intentioned
behavioral science practitioners convinced of the accuracy of their
unsystematic clinical observations can find in the overbroad descriptions of
childhood needs and harms support for virtually any opinion." [FN221] In
light of this possibility, the use of psychological evaluations may be
threatening to the integrity of child custody decision-making.
B. Advantages of Social Science
Awareness of a problem is essential to its resolution. Such
is the case with the criticisms waged against social science research. Social
scientists recognize that they are not able to include all the variables that
may influence behavior in their studies. They also agree that they have yet to
offer theories to predict human behavior with certainty. However, these
limitations should make the value of their findings modest, not irrelevant.
Subsequent studies are repeatedly conducted to test earlier findings.
Longitudinal studies are also conducted to provide greater predictive quality.
Still, the likelihood that the variables being studied will change over time
necessitates replication. The fact remains, however, that "nature permits
us to calculate only probabilities." [FN222]
1. Responses to Criticisms
The nature of the research methodologies employed limits the
researcher's ability to apply findings from the circumstances and populations
studied to other contexts. This presents a serious risk that others will
misinterpret the findings. These risks can be reduced by requiring the social
scientists or mental health professionals involved in the custody determination
to completely and accurately disclose the basis of their opinion. Furthermore,
these professionals should be subject to cross-examination, because the mental
health expert is better able to interpret research findings and reduce the risk
presented by misuse of the information. Although the mental health professional
is not able to predict with accuracy what custody *666 arrangement will best
promote the child's future well-being, he or she is more informed than a lawyer
or judge who is untrained in issues of child development and who has acquired
scientific information informally and independent of the expert. Like the
mental health professional, judges should be cautioned against assuming a
professional role for which they are not qualified. [FN223] Dangers of misuse
similarly arise when a judge attempts to interpret information acquired from
the social scientist. Under these circumstances " t here is a consequent
risk that independently acquired scientific knowledge will be mistaken or
incomplete. There is the further risk that it will be misused or misunderstood
by the legal professional working in an unmastered discipline." [FN224]
However, as with all relevant evidence that is used as the basis of a decision,
the parties are entitled to have knowledge of it and a chance to refute it.
[FN225]
Although it is an ideal goal to achieve objective and
neutral decision-making, the law is not itself an entity devoid of human
interpretation. Thus, it is impossible to completely sift out one's own
personal experiences, values, and biases from the evaluation and
decision-making process. Social science research and mental health
professionals are continually criticized for allowing their personal biases,
values, and ideologies to shape their work product, rendering their conclusions
subjective and of questionable value. However valid this criticism may be, it
need not eradicate the benefits these professionals offer the legal profession.
This criticism simply reinforces the position that social data and mental
health professionals continue to be subject to careful scrutiny. [FN226] The
purpose of psychological evaluations should be to gather factual information or
data from interviews, observations, and other evaluation techniques. [FN227] It
should not be the professional's conclusory judgment which influences the
court, but the concrete and relevant evidence the professional has discovered.
[FN228]
A related criticism of the best interest standard is that
judges' discretion determining custody is too broad. The concern that the judge
will impose personal values in the custody decision is as legitimate as the
concern regarding interjection of the researcher's personal biases. Even judges
do not *667 operate absent influence of their own biases, values, ideologies,
and personal experiences. In fact, the very indeterminacy of legal doctrines such
as the best interest of the child, allow for such personal opinions to come
into play. It is doubtful, though, that a more determinate custody preference
would stave the influence of the human element in decision-making. [FN229] The
legal profession is not immune to some of the same risks that surround the use
of social science in custody determinations, yet critics continue to argue that
mental health professionals have no place in resolving custody disputes. In
fact, one commentator blames the very indeterminacy of the best interest
standard on the influx of "helping professionals" in the legal field.
[FN230]
Social science professionals do not profess to predict what
is in the best interest of any individual child. Rather, it is asserted that:
"[P]sychological testimony can provide the court with information, not
otherwise readily available to the court, which will increase, however
slightly, the accuracy of the prediction the court must make." [FN231] On
that basis alone, this evidence should be admissible. The psychologist can
serve the court by discovering the attitudes and feelings of the parents and
children, [FN232] by articulating that relevant information, [FN233] by
focusing the court's attention on qualitative factors which may have otherwise
been overlooked or given too little weight, [FN234] and by contributing to the
analytical function of the court by offering another point of view. [FN235]
One commentator summarizes the need for social sciences and
the law to work together as follows:
*668 If the law is to succeed in its goals of strengthening
the family as an institution and promoting the general welfare, especially the
welfare of children, it must reform in the face of dramatic social change.
Psychology and the other social sciences have obvious potential utility in the
formulation and implementation of such reforms through description of the needs
of children and families and evaluation of the effects of laws intended to meet
such needs. [FN236]
Although there is a constant need for collaboration, the
psychologist or other mental health professional should be especially cognizant
of the diverse areas of law that impact on child and family policy, of their
professional bounds of expertise, [FN237] and of constitutionally protected
privacy and family autonomy rights. [FN238] Ultimately, the final determination
of the "best" outcome in a divorce-custody proceeding involves both
moral and legal judgments, which are reserved for the courts. [FN239]
Hesitancy in recognizing the value of the social sciences in
legal reform reflects the law's reluctant efforts to accommodate social change.
[FN240] Traditionally, legislatures and judges are more preoccupied with making
moral statements about virtuous family life rather than fashioning legal rules
to match the social and economic realities of family. [FN241] Meanwhile, social
science has persevered in its study of the family, the child, and society. The
time has come to draw from all our strengths and resources and to formulate
policies based on what we know thus far and not merely on idealistic political
agendas.
2. Positive Influences on Legal Policy
One of the greatest contributions social science research
can offer is to dispel myths and stereotypes that damage self-worth through
humiliation, prejudice, and ostracization. The legal profession can choose to
advance this contribution by legitimizing social science or it can continue to
perpetuate myths and stereotypes. An impressive example confirming the value of
social science theories is the Supreme Court's apparent reliance on social
science data in Brown v. Board of Education. [FN242] Because this data
indicated *669 that African-Americans attending segregated schools possessed
lower self-images compared to African-Americans attending integrated schools,
the Court concluded that "separate but equal" was not equal. [FN243]
Subsequent research has continually supported the belief "that
unacceptable consequences follow social isolation of one group." [FN244]
The fact that this theory is now accepted by society gives credence to the
value of empirical research and its use to encourage societal reform through
legal policy.
Another example arises out of Sherla Rush Okpaku's 1976
article in which she states that in some close custody cases, the courts must acknowledge
that "prevailing cultural attitudes concerning the importance of the
natural mother or other blood ties may be the best available basis for
resolving the question of custody." [FN245] Since this time, the focus has
shifted toward identifying the psychological parent or the primary caretaker
[FN246] as possessing the qualities necessary to serve the child's best
interests. It is no longer unquestionably assumed that this person is the
biological parent (mother or father). [FN247]
A final example involves the issue of gay parenting. The
prevailing cultural attitude historically has been, and unfortunately continues
to be, that homosexual parents are not fit because they will endanger the
sexual orientation of the child, or will be more likely to sexually abuse the
child. However, studies have shown that homosexual parents usually produce
heterosexual children and those children are not more prone to abuse. [FN248]
Furthermore, no empirical data exists to indicate how, or even if, the child
suffers. Any suffering or ridicule experienced is more likely the result of
society's adherence to prejudice and stereotypes and the cruel infliction of
these fallacies upon the innocent child. Harm suffered as a result of these
indirect effects of social stigmatization is an obvious concern. However, if
prejudice and stigma are allowed to have an effect in custody determinations,
they will inadvertently be encouraged by the law. [FN249] Over time, the policy
of promoting equal concern and respect for others should eradicate these
biases. Until then, responsibility to protect children from social
stigmatization must rest with their families and with the educational system.
*670 3. Judges Respond to the Issue
A recent survey of judges suggests that they are willing to
work with mental health professionals in custody disputes. In fact, they
consider testimony by an objective court appointed psychologist as one of the
most important sources of information used in decision-making. [FN250] The
movement toward incorporation of mental health professionals in custody
determinations represents an effort to humanize the process and promote the
healing that is desperately needed following divorce. [FN251] Nevertheless, some
commentators suspect that increased judicial reliance on mental health
professionals is merely a mechanism to deal with the high level of
indeterminacy in custody decision-making. [FN252] The judiciary and the
legislature of Massachusetts have another view, and have adopted this alleged
"coping mechanism" by encouraging court ordered diagnostic services
and therapeutic services in many divorce and custody disputes. [FN253] In
response to reliance on helping professionals one judge stated:
Call it therapy or counselling or whatever you want. I need
help to pull people through the terrible disruption of divorce. It touches all
but very few families and unless we can help heal the gaping psychological
wounds it causes innocent children and their siblings, we are going to have a
terrible agony. Today, I am seeing the children of parents I divorced coming
back as adults for divorce themselves or some other unhappiness. [FN254]
It is the judges who are the most deeply enmeshed in the
problem who carry the heaviest responsibility on their shoulders and are forced
to continually struggle to find meaning in the amorphous "best interest of
the child" standard. We cannot expect them alone to understand the
complexity of *671 human nature and to predict the ideal custodial arrangement.
Indeed, such an approach runs counter to the very essence of law. "Law is
a means, not an end. Law provides structure, order, and sanctions to the
substantive thought of other disciplines, in the absence of which, law is
inherently arbitrary." [FN255]
VII. CONCLUSION
The state of the American family has been significantly
altered within the last thirty years. Millions of children experience anxiety,
depression, lowered academic performance, and social maladjustment as a result
of their parents' divorce, life in a single-parent household, and often the
remarriage of their parents. The law is in a position to make a difference in
the lives of those affected by divorce. By gaining a better understanding of
the developmental needs of children and of the psycho-social impact of divorce
on children, parents, and society, the law can render more objectively reasoned
and effective custody determinations.
The indeterminacy of the best interest doctrine requires us
to engage in fundamental research before attempting to implement custody
reform. We must study the forces which act upon the doctrine, namely, the
social historical context, the physical, social, and economic environment, the
political ideologies, the legal reforms, and the social science research. While
recognizing the shortcomings of social science research methodologies and the
variability of the factors studied, we must also realize that the legal process
and legal decision-making have indeterminate qualities as well. Social science
research can play a valid and essential role in defining what is in the best
interest of a child faced with family transition. Although there is still
reason for concern, the answer is not to simply isolate the disciplines. In
fact, law is dependent on social science studies for direction in legal reform.
In reality, the law is merely the product of multidisciplinary study. It is the
thought and reason which shapes the information it absorbs into the guiding
principles and rules of our society. This is demonstrated by the changes the
best interest doctrine has undergone over time, and by the psychological *672
and developmental factors which courts consider in custody decision-making.
One can readily point to positive outcomes in society and
legal reform attributable to the influence of social science research which
evince a natural and beneficial alliance between the two disciplines. Although
there are no certainties and no absolute truths in predicting the future
welfare of the child, the uncertainty inherent in custody decision-making can
be diminished through interdisciplinary collaboration and corroboration of
facts and impressions surrounding the best interest of the child.
[FN1]. See Jon Elster, Solomonic Judgments: Against the Best
Interest of the Child, 54 U. CHI.L.REV. 1, 12 (1987) (for a description of what
denotes a determinate principle). To be determinate, Elster argues four
conditions must be satisfied: "(1) all the options must be known; (2) all
the possible outcomes of each option must be known; (3) the probabilities of
each outcome must be known; [and] (4) the value attached to each outcome must
be known." Id. at 12. The best interests standard fails to consistently
satisfy any of these conditions.
[FN2]. Marianne E. Becker, In Search of Multi-Disciplinary
Enlightenment to the Judicial Standard of Best Interest of The Child: The ABA
Ripon Conference: Family Law & The Best Interest of The Child, 69 DENV. U.
L.REV. 565, 566 (1992).
In April 1991 a multi-disciplinary conference was held to
address the needs of children. The conference attendees agreed that:
"Before positing any more legislative solutions to child oriented issues
in court, . . . the law and lawyers and judges should be educated in the best
interests of the children, by those who understand all the developmental needs
of children, if these needs are ascertained by other professional
disciplines." Id. at 566 (emphasis added). The goal of the conference was
realistic and long ranged. Scholars from various disciplines committed to working
together to identify the basic necessary developmental needs of children that
do not fluctuate with their changing social context and to continue the
discourse to "collaborate in the definition and refinement of the judicial
standard of best interests of the child." Id. at 569. For a summary of the
conclusions achieved by the conference, see Becker, supra.
[FN3]. Id. at 14 (recommends that influence of legal
community should be joined with "efforts of other professionals and
scholars" to defend the interests of children); Gary Crippen, Stumbling
Beyond Best Interests of the Child: Reexamining Child Custody Standard-Setting
in the Wake of Minnesota's Four Year Experiment with the Primary Caretaker
Preference, 75 MINN.L.REV. 427, 500 (1990) (advocating empirical research on
effects of various types of parenting and on patterns of child development);
Laura B. Dupaix, Comment, Best Interests Revisited: In Search of Guidelines,
1987 UTAH L.REV. 651, 655.
[FN4]. To some the practice of law is not a science at all,
but rather an art. Harvey R. Sorkow, Best Interests of the Child: By Whose
Definition?, 18 PEPP. L.REV. 383, 383 (1991).
[FN5]. Becker, supra note 2, at 568.
[FN6]. Steven Mintz, Children, Families, and the State:
American Family Law in Historical Perspective, 69 DENV. U. L.REV. 635, 661
(1992).
[FN7]. Id.; Robert L. Sadoff & Stephen Billick, The
Legal Rights and Difficulties of Children in Separation and Divorce, in
CHILDREN OF SEPARATION AND DIVORCE 4, 4 (Irving R. Stuart & Lawrence E. Abt
eds., 1981); see also Hugh S. Glickstein, 1992: A Year to Rediscover the Best
Interests of The Child, 69 DENV. U. L.REV. 585, 586 (1992).
[FN8]. Glickstein, supra note 7, at 591-92. The author,
Chief Judge of the Fourth District Court of Appeals in West Palm Beach,
Florida, quotes a poem by Gabriela Mistral:
WE ARE GUILTY
OF MANY ERRORS AND
MANY FAULTS
BUT OUR WORST CRIME
IS ABANDONING THE CHILDREN,
NEGLECTING THE
FOUNTAIN OF LIFE.
MANY OF THE THINGS WE NEED
CAN WAIT. THE CHILD CANNOT.
RIGHT NOW IS THE TIME
HIS BONES ARE BEING FORMED, HIS
BLOOD IS BEING MADE, AND
HIS SENSES ARE BEING
DEVELOPED.
TO HIM WE CANNOT ANSWER
"TOMORROW."
HIS NAME IS "TODAY."
Id.
Judge Glickstein refers to children as "our most
precious gift . . . our only priceless commodity--the key to the well-being of
society." Id. at 583 (quoting Costa v. Costa, 429 So. 2d 1249, 1252 (Fla.
Dist. Ct. App. 1983)). Further, Judge Glickstein believes that "without
prioritizing the physical, emotional and educational needs of children, all the
efforts to eliminate crime, poverty and ignorance are only kneejerk, bandaid
solutions which cure none of society's basic ills." Id. at 585-86.
[FN9]. Id. at 591; see also Charlotte Reed, Family Stress
and Self-Esteem, 69 DENV. U.L.REV. 1, 8-10 (1992) (discussing the link between
family characteristics and the problems facing today's youth such as: teen
pregnancy, suicide, abuse, school drop out rates, and low self-esteem).
[FN10]. Becker, supra note 2, at 573.
[FN11]. Dupaix, supra note 3, at 660 (quoting Joan G.
Wexler, Rethinking the Modification of Child Custody Decrees, 94 YALE L.J. 757,
784 (1985)).
[FN12]. Although a complete discussion of the advantages and
disadvantages of joint custody is beyond the scope of this Comment, in general,
joint custody has been thought of as the ideal alternative, particularly if the
parties are willing to cooperate. Joint custody is believed to benefit the
child's psycho-social development, because it is the least disruptive
alternative which provides an arrangement that is as close to the
pre-separation or pre-divorce situation as possible. See RICHARD A. MARAFIOTE,
THE CUSTODY OF CHILDREN: A BEHAVIORAL ASSESSMENT MODEL 23-25. (1985); see also
Henry H. Foster & Doris Jonas Freed, Child Custody and the Adversary
Process: Forum Conveniens?, 17 FAM. L.Q. 133, 144-45 (1983). But see, e.g.,
Thomas J. Reidy et al., Child Custody Decisions: A Survey of Judges, 23 FAM.
L.Q. 75, 80-82 (1989).
Joint custody can be discussed in terms of physical custody or
legal custody. Physical custody refers to the custodian's right to have the
child live with him or her and the right and responsibility to care for the
child's daily needs. Robert F. Cochran, Jr., The Search for Guidance in
Determining the Best Interests of the Child At Divorce: Reconciling the Primary
Caretaker and Joint Custody Preferences, 20 U. RICH. L.REV. 1, 5 (1985). Legal
custody refers to the custodian's right and responsibility to make decisions
regarding the child's health, education, and welfare. Id. Theoretically, joint
custody allows the child to grow up knowing, interacting with, and depending
upon each parent in the child's everyday environment. Advocates of joint
custody believe that parents as well as children benefit from the arrangement.
Particular emphasis is placed on the perceived benefits occasioned by continued
interaction with fathers. Under the traditional sole custody arrangement,
fathers who do not receive custody, gradually visit their children less and as
a consequence grow farther apart. Id. at 44- 45. Joint custody is believed to
provide psychological encouragement to fathers which foster a continued
relationship. Id. at 45. Cochran proposes combining the joint custody and
primary caretaker preferences into a single preference, which would act as a
rebuttable presumption when parents are unable to reach a custody agreement.
Assuming one parent can establish that he or she is the primary caretaker,
Cochran advocates that there should be a preference for joint physical custody.
Joint physical custody would be structured so that the primary caretaker would
be the primary custodian and the other parent would have substantial, regular
time with the child. Id. at 47. Legal custody would reside with the primary
caretaker. Id.
Cochran acknowledges that his proposal appears to be no more
than a primary caretaker preference with increased visitation rights. Id. at
48. However, it is hoped that the mere status of "joint custodian"
will be sufficient to encourage parents to be active in their children's lives
and to respect their children's needs to maintain meaningful relationships with
both parents. Id. at 49. Realizing that the success of joint physical custody
is dependent upon the level of parental conflict as well as visitation, Cochran
notes that it will not likely cause any more parental conflict than visitation,
and the benefits, if achieved, are significant. Id. at 50.
It appears that what Cochran is proposing is actually the
use of legal policy in an educative capacity. For joint physical custody to
generate the results proposed, divorced parents must understand and accept the
value of shared parenting. Moreover, it requires that they are willing to work
together in the best interest of their children. While legal policy can act in
an educative fashion, its force is less effective than other means. See Elster,
supra note 1, at 34 (arguing that there is little support for the alleged
educative and socialization effects of the law). To ultimately achieve what
Cochran and others advocate would require more than a mere court order.
One study comparing children in court ordered joint custody
to children in sole custody arrangements found the joint custody children to be
more dysfunctional when parental conflict persisted after the divorce. Donald
S. Moir, No-Fault Divorce and The Best Interests of Children, 69 DENV. U.L.REV.
663, 681 (1992). Perhaps joint custody or frequent access should be ordered
only when there is agreement between the parents. Id. However, this may be
unfair to the noncustodial parent who must depend on the continuing good will
of the custodial parent to honor the arrangement. Id.
[FN13]. Mediation in divorce and custody determinations has
received increasing attention and debate. Proponents believe that mediation
ultimately is in the best interest of the child as well as the parents.
Mediation has been found to encourage settlement; result in more co-parenting
and less relitigation or modification of custody decisions; consume less time
and money; and perhaps, more importantly, reduce the chance that the parents
will turn the child into a "prize" to be won or lost in court. As a
result, mediation may effectively reduce some of the emotional trauma children
incur as a result of divorce. See Paula J. Gottwik, Note, Determining
"Best Interests" of the Child In Divorce Custody Disputes: A
Procedural Approach, 9 VT. L.REV. 311, 330- 33 (1984); Christopher A. Jeffreys,
Note, The Role of Mental Health Professionals in Child Custody Resolution, 15
HOFSTRA L.REV. 115, 129-36 (1986); see also Elizabeth S. Scott & Robert
Emery, Child Custody Dispute Resolution: The Adversarial System and Divorce
Mediation, in PSYCHOLOGY AND CHILD CUSTODY DETERMINATIONS: KNOWLEDGE, ROLES,
AND EXPERTISE 23, 39-51 (Lois A. Weithorn ed., 1987). See generally Robert E.
Emery, Mediation and the Settlement of Divorce Disputes, in IMPACT OF DIVORCE,
SINGLE PARENTING, AND STEPPARENTING ON CHILDREN 53-69. (E. Mavis Hetherington
& Josephine D. Arasteh eds., 1988). It is important to acknowledge that
increased acceptance and use of mediation has occurred, in part, as a result of
social science research exploring the impact of the traditional adversarial
approach on its participants and on society. Continued research is needed to
test the effectiveness of mediation in protecting the future welfare of the
child in resolving custody disputes. A complete discussion of the theoretical
benefits of and the actual results of mediation as an alternative to the
adversarial system is beyond the scope of this paper.
[FN14]. The issue of the child's right to representation as
a means to better assure that the child's welfare is protected should be
considered. Foster & Freed, supra note 12, at 141-44; see also JOSEPH
GOLDSTEIN ET AL., BEFORE THE BEST INTEREST OF THE CHILD 112 (1979) ("such
counsel are to act as lawyers, not as parents. They are to represent a child's
legal needs by gathering and providing the court with information that it
requires in order to determine the least detrimental placement.");
Robyn-Marie Lyon, Comment, Speaking for a Child: The Role of Independent
Counsel for Minors, 75 CAL.L.REV. 681, 693 (1987). If the client possesses
sufficient maturity to comprehend the circumstances of the case and understand
the issues involved. the attorney should advocate the position desired by the
client. If the child is too young to express a clear uninfluenced and competent
opinion, the attorney should act under the doctrine of substituted judgment.
Id. See generally Martin Guggenheim, The Right to be Represented but Not Heard:
Reflections on Legal Representation for Children, 59 N.Y.U. L.REV. 76 (1984)
(for a comprehensive discussion of whether and under what circumstances
independent counsel should be appointed). Guggenheim defines two distinct
functions an attorney could perform when representing a child client. Id. at
100 09. First, the role of counsel as "champion" requires the
attorney to advocate what he or she believes to be the appropriate decision for
the child. Id. This role asks the attorney in a divorce custody dispute to urge
the court to accept what he or she personally believes is in the best interest
of the child. Id. The second role of counsel as "investigator"
requires the attorney to ferret out all the facts of the case and uncover the
legal issues but not to explicitly advocate an outcome. Id. This role does not
provide actual representation to the child client but merely serves as a new
form of court-ordered discovery. Id. However, the role of
"investigator" poses the threat that in his or her effort to uncover
information, the privacy and autonomy rights of the parents in the proceeding
may be violated.
State intervention is prohibited as interfering with the
"family autonomy" unless there is sufficient state interest, based on
either state police power or the doctrine of parens patriae, to protect the
child from grave harm. The United States Supreme Court has recognized the right
of parents and families to be free from unnecessary state intervention. See
cases cited infra notes 32-36 and accompanying text. The argument is that the
policy of state non- intervention into the family, in essence, promotes the
best interests of children. However, one could argue that inherent parental
rights to raise children free from state coercion have been forfeited to a
degree by filing for a divorce and custody determination--an act specifically
motivated to terminate the family unit. GOLDSTEIN, supra at 115. If this
proposition is accepted, the court is vested with the legal decision-making
power via the custody proceeding. Then, the court, through its investigator,
has a duty to discover all information relevant to determining what will be in
the child's best interest.
In theory this is a plausible argument, but society has
continued to show its willingness to "sacrifice even significant
improvements in child welfare to preserve parental decision-making
autonomy." Guggenheim, supra at 123. Guggenheim further states that there
is no basis for "striking a different balance between parental rights and
child welfare where privacy (rather than autonomy) rights are involved,
particularly since the effects on the child of an 'incorrect' decision would be
so slight." Id. One could easily take issue with this last statement given
the current psychological and sociological research conducted on the impact of
divorce on children. See Emery, supra note 13, at 197-212. However, common
sense dictates that a full-scale investigation into the parents' private lives
will likely have a detrimental impact on the emotional health of the parents as
well as the child and, therefore, should be censored from becoming public
knowledge.
See also Glickstein, supra note 7, at 8-9. Judge Glickstein
advocates employing guardians ad litem (GALs) to protect children of divorce
not only to protect their rights but because "one or both of the parents
is likely to be dysfunctional emotionally." Id. at 8. However, the absence
of legislative funding for GALs has significantly hampered the effectiveness of
statutes that mandate their use. Id. A possible solution to the GAL funding
dilemma is to require divorcing parents to pay GAL legal fees. Emile R. Kruzick
& David H. Zemans, In The Best Interests of The Child: A Case for
Independent Representation, 69 DENV. U. L.REV. 605, 619-20 (1992). This may
have the additional benefit of encouraging parents to evaluate their chance of
success before trial which may encourage out-of-court settlements and ultimately
reduce litigation. Id. In addition, it is believed that independent legal
counsel will foster settlements because they are in a "unique position to
shift the focus of the dispute from the feuding parents to the needs of the
child." Id. at 620.
[FN15]. There is increasing debate about the actual or
potential conflict of interests confronting the mediator and whether the
mediator may be engaging in the unauthorized practice of law if he or she is
not a lawyer. Foster & Freed, supra note 12, at 148. See generally JOSEPH
GOLDSTEIN ET AL., IN THE BEST INTEREST OF THE CHILD (1986). An overly
simplistic summary of the book's focus is that law trained professionals and
mental health professionals should be conscious of not crossing professional
borders and of not practicing in areas which they have not been trained.
In addition, if mediation as a preliminary agreement breaks
down, the parties will likely end up in court which will prolong the custody
battle. When parents are unwilling to cooperate, neither mediation nor joint
custody are necessarily viable alternatives. See Martha Fineman, Dominant
Discourse, Professional Language, and Legal Change in Child Custody
Decisionmaking, 101 HARV.L.REV. 727, 760-68 (1988); Jessica Pearson & Nancy
Thoennes, Custody Affer Divorce: Demographic and Attitudinal Patterns, 60 AM.
J. ORTHOPSYCHIATRY 233, 238 (1990).
[FN16]. Mintz, supra note 6, at 637.
[FN17]. Id. at 656-61.
[FN18]. Id. at 637-43.
[FN19]. Dora Sybella Vivaz, Note, Balancing Children's
Rights Into the Divorce Decision, 13 VT.L.REV. 531, 544 (1989). See generally
MARAFIOTE, supra note 12, at 4-7.
[FN20]. Mintz, supra note 6, at 645.
[FN21]. Id.
[FN22]. Id. at 640.
[FN23]. Id. at 641-42.
[FN24]. Albert J. Solnit, "A Psychoanalytic View of
Infant Care" Child-Rearing and Child Advocacy, 1976 B.Y.U. L.REV. 723,
724.
[FN25]. Mintz, supra note 6, at 643.
[FN26]. Id. at 646; Solnit, supra note 24, at 724.
[FN27]. Solnit, supra note 24, at 724.
[FN28]. MARAFIOTE, supra note 12, at 8-9 (Parens Patriae
literally means "father of his country"); see also Vivaz, supra note
19, at 544-45.
[FN29]. Solnit, supra note 24, at 725.
[FN30]. MARAFIOTE, supra note 12, at 9-10.
[FN31]. See Katharine T. Bartlett, Rethinking Parenthood as
an Exclusive Status: The Need for Legal Alternatives When the Premise of the
Nuclear Family Has Failed, 70 VA.L.REV. 879, 879-80 (1984).
[FN32]. See Lyon, supra note 14, at 684-85 (for a
comprehensive list of areas of decision-making in which either the interests of
the child or the state will overcome the presumption for parental
decision-making); see, e. g., Quilloin v. Walcott, 434 U.S. 246 (1978) (denying
veto authority of an adoption on ground that legitimation was not in the best
interest of the child and did not violate father's due process rights).
[FN33]. Lyon, supra note 14, at 685; see also MARAFIOTE,
supra note 12, at 11-15 (discussion of additional factors that have constituted
parental unfitness).
[FN34]. Lyon, supra note 14, at 685; see also Palmore v.
Sidoti, 466 U.S. 429 (1984) (reversed an award of custody which was premised on
racial prejudice and not in the best interest of the child). But see Vivaz,
supra note 19, at 531 (advocating that children's rights in the divorce
decision be considered so that the children's interests in either maintaining
the family unit and/or their welfare are protected).
[FN35]. Mintz, supra note 6, at 645 (citation omitted).
[FN36]. Bellotti v. Baird, 443 U.S. 622, 634 (1979)
(plurality opinion) (Massachusetts' statute requiring parental consent before
an abortion could be performed on a minor was found unconstitutional, affirming
state deference to parental control over their children yet recognizing that
children who are mature and capable of making decisions in their own best
interest should be allowed); see, e.g., Bowen v. American Hosp. Ass'n, 476 U.S.
610, 627-28 n.13 (1986) (plurality opinion) (rebuttable presumption that
parents are the appropriate decision makers for their handicapped infants
regarding medical treatment).
[FN37]. Santosky v. Kramer, 455 U.S. 745, 753 (1982)
(fundamental liberty interest is protected by the Fourteenth Amendment and does
not evaporate simply because the parents may not have been model parents).
[FN38]. Parham v. J. R., 442 U.S. 584, 602-04 (1979)
(upholding parental decision to commit child to mental institution based on
"a presumption that parents possess what a child lacks in maturity,
experience, and capacity for judgment required for making life's difficult
decisions."--subject to independent medical judgment).
[FN39]. Mintz, supra note 6, at 647-48, 657.
[FN40]. Id. at 650, 659.
[FN41]. Id. at 650-51, 657. Other reforms included programs
in marriage reconciliation, marriage counseling, investigations of divorce
petitions, diagnostic investigations, and psychological assessments of young
people in the juvenile court system. Id.
[FN42]. Id. at 657-58.
[FN43]. The shift from the tender years doctrine or maternal
preference rule to the best interests standard was a necessary by-product of
the egalitarian cry of the feminist movement. Whether the presumption for
custody was considered a privilege or a burden, nonetheless, it was premised on
the stereotypical sex roles which the feminist movement fought to erase. On a
more analytical level, the theoretical foundation of the maternal preference
rule, that granting of custody to mothers was in the children's best interest,
gave rise to the argument that the best interest of the children should be the
paramount consideration in case-by-case custody determinations. Elster, supra
note 1, at 9-10; see also Cochran, supra note 12, at 13.
[FN44]. Cochran, supra note 12, at 13.
[FN45]. Chapsky v. Wood, 26 Kan. 650, 653-54 (1881) (father
of five year-old girl attempted to gain custody from her maternal aunt).
[FN46]. In re Gault, 387 U.S. 1 (1967) (affording a child
due process protection through the right to be represented by counsel in a
proceeding to determine juvenile delinquency in which the juvenile's freedom
may be curtailed by institutionalizing).
[FN47]. See Vivaz, supra note 19, at 544-45.
[FN48]. See cases and statutes cited in Henry H. Freed &
Doris Jonas Foster, Divorce in the Fifty States: An Overview, 14 FAM. L.Q. 229,
263-66 (1981).
In Canada, both Federal and Provincial statutes embody the
"best interests" test. Kruzick & Zemans, supra note 14, at 606.
Similar to American statutes, the Canadian "best interests" statutes
require the courts to determine issues of custody and access according to the
best interests of the child. Id. Canada is experiencing similar definitional
and assessment problems in the application of the standard as is the United
States. One recommended solution, advocated by the authors, is to provide
independent representation to the children of divorce. See id. at 607-11.
[FN49]. Factors the court shall consider in custody and
physical placement determinations include:
(a) The wishes of the child's parent or parents.
(b) The wishes of the child, which may be communicated by
the child or through the child's guardian ad litem or other appropriate
professional.
(c) The interaction and interrelationship of the child with
his or her parent or parents, siblings, and any other person who may
significantly affect the child's best interest.
(d) The child's adjustment to the home, school, religion and
community.
(e) The mental and physical health of the parties, the minor
children and other persons living in a proposed custodial household.
(f) The availability of public or private child care
services.
(g) Whether one party is likely to unreasonably interfere
with the child's continuing relationship with the other party.
(h) Whether there is evidence that a party engaged in abuse
of the child,. . . .
(i) Whether there is evidence of interspousal battery . . .
or domestic abuse . . . .
(j) Whether either party has or had a significant problem
with alcohol or drug abuse.
(k) Such other factors as the court may in each individual
case determine to be relevant.
WIS. STAT. § 767.24(5) (1989-90).
[FN50]. In 1960, the number of children born to unmarried
mothers was just 5%. By 1986, that number had risen to 23.4%. Mintz, supra note
6, at 659.
[FN51]. Id. The divorce rate has doubled since 1966 and
tripled since 1950. Id.
[FN52]. Bartlett, supra note 31, at 881 n.7.
[FN53]. Approximately a 5% decline was noted during this
time. Donald J. Hernandez, Demographic Trends and Living Arrangements of
Children, in IMPACT OF DIVORCE, SINGLE PARENTING, AND STEPPARENTING ON CHILDREN
1, 5 (E. Mavis Hetherington & Josephine D. Arasteh eds., 1988). It is hoped
that the recent decrease in divorce will lead to a subsequent decrease in the
number of children experiencing divorce. However, if the recent decline merely
indicates a leveling off, the proportion of children who experience a parental
divorce will remain relatively high.
[FN54]. Mintz, supra note 6, at 659.
[FN55]. E. Mavis Hetherington, Coping with Family
Transitions: Winners, Losers, and Survivors, 60 CHILD DEV. 1, 1 (1989).
[FN56]. Id. An estimated 25% of children will become members
of a step family before they are young adults. Id.; see also E. Mavis
Hetherington et al., Marital Transitions: A Child's Perspective, 44 AM.
PSYCHOLOGIST 303, 303 (1989).
[FN57]. Hetherington, supra note 55, at 1.
[FN58]. Hetherington et al., supra note 56, at 303.
[FN59]. Hernandez, supra note 53, at 9. Another source
projected that by 1990, 40% of children would not be living with both natural
parents. This factor takes into account children living in step-families as
well as in single-parent households. Bartlett, supra note 31, at 880-81. Other
studies project that "three-fifths of all children born today will spend
at least part of their childhood in a single-parent family." HERBERT
GOLDENBERG & IRENE GOLDENBERG, COUNSELING TODAY'S FAMILIES 12 (1990). In
1989, 22% of American children lived in a single parent family, compared to 10%
in 1965. Mintz, supra note 6, at 659.
[FN60]. Vivaz, supra note 19, at 542.
[FN61]. JUDITH S. WALLERSTEIN & JOAN BERLIN KELLY,
SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS COPE WITH DIVORCE, 211-13
232-33 (1980); see also Cynthia R. Pfeffer, Developmental Issues Among Children
of Separation and Divorce, in CHILDREN OF SEPARATION AND DIVORCE, supra note 7,
at 27-29.
[FN62]. Moir, supra note 12, at 680.
[FN63]. LENORE WEITZMAN, THE DIVORCE REVOLUTION: THE
UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA
350-51 (1985).
[FN64]. Id. at 337. There appears to be a link between
divorce and the increase in child poverty in America. By 1982, 21.3% of
American children were living in poverty and the majority of those lived in
female-headed households. Id. at 352; see Vivaz, supra note 19, at 535 (35% of
children of divorce live in poverty). For both blacks and whites
"approximately four out of every five children living with a never-married
mother have an annual family income of less than $10,000." "Children
living with a father only are more than twice as likely as children living with
an never-married mother only to have family incomes of $20,000 per year or
more." Hernandez, supra note 53, at 20.
[FN65]. WEITZMAN, supra note 63, at 338.
[FN66]. Id. at 344.
[FN67]. Id. at 345.
[FN68]. Id. at 345-46.
[FN69]. Id. at 355-56. Studies show that 85% of children of
divorce are placed in their mother's custody. Id. at 222.
[FN70]. Id. at 354.
[FN71]. Id. at 352-53. A 73% decrease in standard of living
for mother-custody children is likely. Id. at 339.
[FN72]. Moir, supra note 12, at 672 (referring to findings
reported by Guidubaldi and his colleagues in The Impact of Parental Divorce on
Children, 12 SCH. PSYCHO L.REV. 300 (1983)).
[FN73]. This paper defines the term "nuclear
family" to consist of a husband, wife, and dependent children born of the
union between husband and wife. See Bartlett, supra note 31, at 879 n.1; see
also Reed, supra note 9, at 705-06.
[FN74]. The various acceptable family structures that exist
today are representative of the shift from modernism to postmodernism. David
Elkind, The Law and Postmodern Perceptions of Children and Youth, 69 DENV. U.
L.REV. 575, 577 (1992). Modernism is characterized by believing in universals
and harmony; postmodernism by viewing the world as constrained within a social
historical context. Id. at 576.
[FN75]. Id. at 577.
[FN76]. Id.
[FN77]. Id. at 578.
[FN78]. Id.
[FN79]. Id.
[FN80]. Id. at 581.
[FN81]. Id. "[F]ifty years ago the leading cause of
death among children and youth was disease . . . . Today, psychological and
social pressures, not physical disease, account for most of the deaths among
young people." Id. Psychological and social pressures are attributed to:
The three-fold increase since 1975 in the percentage of students who use drugs
by the sixth grade, the thousand-fold increase since 1965 in the number of
young people diagnosed with gonorrhea and syphilis, the highest teenage pregnancy
rate of any western country, the fact that suicide rates have doubled for
teenagers since 1965, and that the leading cause of death among 15 to 24
year-olds is alcohol related accidents. Id. at 581-82.
[FN82]. Id. at 582.
[FN83]. Id. at 580. Dr. Elkind advocates that children have
a basic right against complete freedom. Id. at 582.
[FN84]. Dr. Elkind asserts that lawmakers must understand
and recognize that children's developmental levels limit their ability to
exercise their rights. In other words, children's rights are protected
precisely by not forcing them to exercise more autonomy than they are
developmentally capable of. See id.
[FN85]. The desire to understand the developmental needs of
children within their social historical context, in an effort to better
formulate and apply legal policy which will advance the interests of children,
is reflective of postmodern thinking in the law. See generally id.
[FN86]. Self-esteem is essentially how one perceives oneself
and one's abilities. Reed, supra note 9, at 705. Although a child's self-esteem
is affected by numerous factors, the family and its attendant characteristics
have been identified as exerting the greatest influence. Id. Within the context
of divorce, family characteristics such as reconstructed or blended family
structure, insufficient income, poor or strained family relationships, an
unemployed parent, a teenage parent, and single parenthood are salient factors
which tend to negatively impact children's self-esteem. Id. at 3. However, "[l]ow
self-esteem is identified more with the quality of experience in the home
environment, than it is associated with the structure of the family." Id.
Therefore, Reed advocates for those who work with children "to focus more
on improving the quality of children's experience in their various life
environments, than to denounce those environments." Id. at 707. For a list
of positive family characteristics which help children develop good self-esteem
see Dr. Reed's article cited above.
[FN87]. It is a common misperception, but a necessary
perception nonetheless, that ascertaining the "facts" in an
adversarial setting is equivalent to knowing and understanding the truth.
Information gathered to determine what is in the best interests of the child is
at best one interpretation subject to disagreement. Because of the
indeterminacy of the best interests standard and the uncertainty of predicting
the future welfare of a child, it is literally impossible to arrive at a single
truth. The best that can be expected is a decision made in light of the
totality of the circumstances with an awareness of the personal biases and
societal stereotypes involved.
Providing children entangled in a custody battle with
independent representation is one method to help the court ascertain
information regarding the child's rights and needs, which is necessary to make
an informed decision. Kruzick & Zemans, supra note 14, at 614. Because the
interests of children do not always coincide with those of the parents,
particularly in contested custody proceedings, independent counsel is perhaps
the best protection for the child's interests. Theoretically, free of parental
biases, independent counsel is expected to maintain the focus of the trial on
the best interests of the child. Id. at 614-16.
[FN88]. See H. RUDOLPH SCHAFFER, MAKING DECISIONS ABOUT
CHILDREN 164 (1990).
[FN89]. GOLDENBERG & GOLDENBERG, supra note 59, at 92.
[FN90]. Id.
[FN91]. See id. at 98-99 (listing problems children may
experience following their parents' divorce). In general, older children have
some understanding of the dynamics of divorce and have emotionally matured to
realize that they are not at fault for the family break up. Therefore, these
children are not as likely to suffer developmentally to the same extent as
younger children. Id. at 99.
[FN92]. Generally, adolescents have been found to be better
able to emotionally cope with and understand their parents' divorce. Despite
these findings, adolescents' initial reaction to parental divorce typically
includes: feeling a lack of control over the marital tension, intense anger at
one of or both parents, acute depression, and a decrease in social and school
involvement. Some adolescents showed marked maturity and independence in
response to dealing with the divorce. It is suggested this is due to the need
to take on greater responsibility for themselves and for others. Some children
were burdened by their parent's emotional dependence on them. Their wish to
help the troubled parent led to a shutting out of other relationships and
drained their needed energies away from other tasks. WALLERSTEIN & KELLY,
supra note 61, at 80-95; see also Judith S. Wallerstein, The Overburdened
Child: Some Long-Term Consequences of Divorce, 19 COLUM. J.L. & SOC. PROBS.
165 (1985). These reactions had typically been resolved within five years and
more so by ten years; even though these individuals still held the vivid
memories of those early reactions and expressed some reservations about
marriage in general. SCHAFFER, supra note 88, at 157.
[FN93]. See SCHAFFER, supra note 88, at 163.
[FN94]. See WALLERSTEIN & KELLY, supra note 61, at
45-46.
[FN95]. Id. at 47-50.
[FN96]. Pfeffer, supra note 61, at 28; see also SCHAFFER
supra note 88, at 157-59.
[FN97]. WALLERSTEIN & KELLY, supra note 61, at 68, 134.
[FN98]. See id. at 65-71; see also Pfeffer, supra note 61,
at 28.
[FN99]. WALLERSTEIN & KELLY, supra note 61, at 177.
[FN100]. Id. at 170-72 (factors which stunted recovery
included: infrequent visits from the father, diminished parenting by the
custodial mother, and conflict between the parents).
[FN101]. Id. at 207.
[FN102]. Id.
[FN103]. See id.
[FN104]. Id. at 210. 34% of the children and adolescents
appeared to be doing well at the five-year mark. Id.
[FN105]. Id. at 211.
[FN106]. Id.
[FN107]. Id.
[FN108]. Paul D. Allison & Frank F. Furstenberg, Jr.,
How Marital Dissolution Affects Children: Variations by Age and Sex, 25 DEV.
PSYCHOL. 540, 547 (1989).
[FN109]. Moir, supra note 12, at 666 (quoting JUDITH S.
WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES: MEN, WOMEN AND CHILDREN A
DECADE AFTER DIVORCE (1989) (reporting findings from a 10-15 year follow-up of
children who were ages 11 to 29 at the beginning of the study)).
[FN110]. Allison & Furstenberg, supra note 108, at 545.
[FN111]. Moir, supra note 12, at 665 (citing findings from a
1988 report from the National Centre for Health Statistics).
[FN112]. Allison & Furstenberg, supra note 108, at 540.
[FN113]. Hetherington et al., supra note 56, at 305; see
also GOLDENBERG & GOLDENBERG, supra note 59, at 12 (90% of single-parent
families are headed by women, representing one out of five families with
children).
[FN114]. Hetherington et al., supra note 56, at 305-06.
These behaviors were exhibited even 2-3 years after divorce. Id. Hetherington
reports that these problems appear to be more enduring for boys, and that 40%
of boys develop serious psychiatric problems if the custodial parent remarries
while the child is in early adolescence. Moir, supra note 12, at 12 n.34.
[FN115]. Hetherington et al., supra note 56, at 306.
[FN116]. Id.
[FN117]. Id.
[FN118]. Id.
[FN119]. Allison & Furstenberg, supra note 108, at 547.
One possible explanation for the finding is this study interviewed children
more than two years after the separation occurred, whereas most studies have
looked at the short term impact of divorce. This suggests that sex differences
may be limited to the period immediately following divorce. Id. See generally
Richard A. Warshak & John W. Santrock, The Impact of Divorce in
Father-Custody and Mother-Custody Homes: The Child's Perspective, in CHILDREN
AND DIVORCE 29, 33-40 (Lawrence A. Kurdek ed., 1983). But cf. WALLERSTEIN &
KELLY, supra note 61, at 220 (stating that "the father-son relationship
appeared to have grown in importance to the boy's self-esteem as the boy
matured.").
[FN120]. SCHAFFER, supra note 88, at 165. One study found
that divorce-group children differed from other children even before the
parents' divorce. This indicates that the effects of parental divorce can be
traced back to the atmosphere of conflict that existed when the parents were
still together. Id. at 162-63. In general, children of divorce suffer more
dysfunction than children from intact families. However, when predivorce
interspousal conflict is taken into account, there is no statistical difference
between the groups. Moir, supra note 12, at 668.
[FN121]. SCHAFFER, supra note 88, at 166.
[FN122]. Moir, supra note 12, at 668. If these findings are
true, legal policy should encourage divorce of conflicted spouses. Id. at 669.
However, these findings have been questioned because of their contextual
dependency on the fault-based divorce laws of the time which tended to yield a
low divorce rate. Therefore, the subjects of this study were not only small in
number but because of the fault-based regime, probably came from the most highly
conflicted families. Id. at 19. Others find that children of divorce who are
sheltered from parental dispute experience no negative effects which may be
attributable to pre-divorce conflict. Id. at 668-69 n.44.
[FN123]. Id.
[FN124]. Id. at 669.
[FN125]. Elster, supra note 1, at 24; Cochran, supra note
12, at 20.
[FN126]. See generally Crippen, supra note 3, at 446-50
(discussing the relationship between custody litigation and the following: the
adjudication burden on the courts, the financial costs and emotional pain
endured by the parties, the harm to the child's adjustment and development, the
decreased bargaining power of mothers, and the potential for relitigation and
complex trial).
[FN127]. Cochran, supra note 12, at 19.
[FN128]. Id. at 19-20; see also Wallerstein, supra note 92,
at 177-80 (children who are objects of their parents interpersonal conflict
often try to resolve the conflict but find themselves "overburdened"
by their inability to rescue the parent or bring about improvements).
[FN129]. See generally Cochran, supra note 12, at 17-20
(arguing that the uncertainty of the best interests rule increases parental
conflict because the parents are more likely to litigate for custody which
ultimately harms the child by exposing the child to intense parental conflict);
Elster, supra note 1, at 24-25 (arguing that the harm done to children by the
protracted decision-making process involved in the best interests rule is
unjustifiable when there is insufficient evidence to show that the process
results in actually determining the best custodial arrangement). But see
Crippen, supra note 3, at 452-86 (analyzing the litigation explosion in
Minnesota after the primary caretaker preference was adopted to provide
certainty to custody determinations with the hope of removing the majority of
disputes from the court system).
[FN130]. Hetherington et al., supra note 56, at 307; see
also SCHAFFER, supra note 88, at 166.
[FN131]. Moir, supra note 12, at 682; see also WALLERSTEIN
& KELLY supra note 61, at 127; Cochran, supra note 12, at 44-45.
[FN132]. Hetherington et al., supra note 56, at 307; see
also SCHAFFER, supra note 88, at 166-67.
[FN133]. Children in single-parent families, or in lesbian
households function more adequately than do children in intact but
conflict-ridden homes. SCHAFFER, supra note 88, at 221.
[FN134]. See Crippen, supra note 3, at 460-61; Elster, supra
note 1, at 37- 38; Dupaix, supra note 3, at 663.
[FN135]. Hetherington et al., supra note 56, at 307-08; see
also WALLERSTEIN & KELLY, supra note 61, at 217-19 (relationships with
custodial and noncustodial parents leading to healthy adjustment to divorce);
Wallerstein, supra note 92, at 168 (describes how "diminished
parenting" affects a quality relationship between parent and child).
[FN136]. Hetherington et al., supra note 56, at 308.
[FN137]. Wallerstein, supra note 92, at 168-69; see also
Hetherington et al., supra note 56, at 308.
[FN138]. Wallerstein, supra note 92, at 168.
[FN139]. Id. at 168-69, see also Hetherington et al., supra
note 56, at 308.
[FN140]. Wallerstein, supra note 92, at 169.
[FN141]. Id. at 168-69.
[FN142]. Hetherington et al., supra note 56, at 308.
[FN143]. Id. at 309.
[FN144]. Id. There is evidence that noncustodial mothers are
more likely to maintain contact with their children than are noncustodial
fathers. In addition, noncustodial fathers are more likely to maintain contact
with their sons than with their daughters. There is also evidence that
noncustodial mothers' involvement in families with stepmothers presents
difficulties, especially for girls. See Hetherington, supra note 55, at 5-8.
[FN145]. SCHAFFER, supra note 88, at 222.
[FN146]. WALLERSTEIN & KELLY supra note 61, at 277-84. A
link was found between high academic achievement and good psychological
functioning with the child's ability to maintain good peer relationships. See
also Hetherington, supra note 55, at 10.
[FN147]. Hetherington, supra note 55, at 10.
[FN148]. WALLERSTEIN & KELLY supra note 61, at 220-21,
278.
[FN149]. Id.
[FN150]. See Hetherington et al., supra note 56, at 309.
[FN151]. Michael S. Pritchard, Families, Schools, and the
Moral Education of Children, 69 DENV. U.L.REV. 687, 704 (1992).
Pritchard presents a thoughtful discussion of the role of
schools in moral education. In our pluralistic society, the responsibility for
moral education of children rests not only with families, but also with the
schools and with the children themselves. The educational system owes a duty to
its students to prepare them for citizenship. Id. at 691. Schools fulfill this
through civic education which is primarily concerned with instilling the skills
and understanding necessary for effective, responsible participation in a
constitutional democracy. Id. Civic education focuses on "the capacity to
make independent, rational judgments about civic matters; respect for the
rights of others; and the capacity to discuss and defend political views that
may differ from theirs." Id. at 691-92.
The process of civic education promotes critical thinking
skills which are essential to defining one's own moral values. Pritchard
supports the study of morality as the goal of schools rather than moral
indoctrination, and he asserts that the two are separable. Id. at 687. He
emphasizes that the skill of critical thinking, developed through civic
education, is the tool with which children can develop their capacity for
reasonableness. Id. at 692-93.
[FN152]. Id. at 701.
[FN153]. See generally id. at 692.
[FN154]. Hetherington, supra note 55, at 9. Ambivalent or
hostile sibling and step-sibling relationships were more common in
step-families than positive relationships. Id.
[FN155]. Id. at 9-10; see also WALLERSTEIN & KELLY,
supra note 61, at 222.
[FN156]. Hetherington, supra note 55, at 4.
[FN157]. Id.
[FN158]. Id. at 3 (discussing Rutter's theory that behavior
problems in children may exacerbate parental discord and contribute to
divorce).
[FN159]. Id. Under conditions of low stress and high
support, no differences were found in the adaptive ability of easy and
difficult children. Id. Where there was increased family stress and no support
available, both temperaments were less adaptable. Id. The most interesting of
the findings showed that even where there was high availability of protective
factors, difficult children adapted less easily to increased stress than did
easy children, suggesting that temperamentally easy children developed more
adaptive skills with some degree of stress in their lives. Id. at 3-4.
[FN160]. Children with advanced intelligence have been found
to be more resilient in the face of stress. Id. at 3.
[FN161]. Although a young child's feeling of self-worth is
decreased by their feelings of guilt for causing the marital dissolution, it
does not necessarily appear to have a long-term effect. Although preschool
children showed the most distress at the time of the marital rupture, they
emerged less troubled than older children ten years following the divorce.
Judith S. Wallerstein et al., Children of Divorce: A 10-Year Study, in IMPACT
OF DIVORCE, SINGLE PARENTING, AND STEPPARENTING ON CHILDREN, supra note 13, at
197, 208. Self-esteem and the child's sense of self worth have been found to be
more predictive of adjustment in children who were older at the time of marital
dissolution. Although factors external to the family play a crucial role in
development of a child's sense of self-worth, because of the social comparisons
involved, family cohesion is an important factor as well. See generally Kay
Pasley & Cathy L. Healow, Adolescent Self-Esteem: A Focus on Children in
Stepfamilies, in IMPACT OF DIVORCE, SINGLE PARENTING, AND STEPPARENTING ON
CHILDREN, supra note 13, at 263-75.
[FN162]. JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS
OF THE CHILD 6 (1973); see also Dupaix, supra note 3, at 656-57.
Although continuity of a child's relationship with his or her
parent should be given considerable weight in a custody decision, the custodial
parent should not be allowed to prevent the continued relationship between the
child and the noncustodial parent. Sadoff & Billick, supra note 7, at 13.
But see generally GOLDSTEIN ET AL., supra.
Some commentators believed that a child had to break contact
with the noncustodial parent in order to form a new relationship with a
step-parent. See SCHAFFER, supra note 88, at 169-81. However, research
indicates that this is not so. Id. Instead, children have shown the ability to
sort out the roles of various individuals in their lives and to maintain
relationships with all involved, given the cooperation and understanding of the
adults. Id.
[FN163]. See WALLERSTEIN & KELLY, supra note 61, at
215-16; see also SCHAFFER, supra note 88, at 174. But cf. Sadoff & Billick,
supra note 7, at 13- 14 (visitation by a noncustodial parent should not be
guaranteed if it is clearly proven that the relationship is physically or
emotionally dangerous to the child).
[FN164]. Lawrence A. Kurdek & Berthold Berg, Correlates
of Children's Adjustment to Their Parent's Divorces, in CHILDREN AND DIVORCE,
supra note 119, at 47, 58; see also WALLERSTEIN & KELLY, supra note 61, at
217-19 (unvisited or irregularly visited children felt rejected, unlovable and
as a result exhibited lowered self-esteem. Positive father-child relationships
were linked with high self-esteem and an absence of depression for children of
all ages). See generally Hetherington, supra note 55, at 5-8 (a study on the
effects of family interaction with the long term adjustment of children of
divorced and remarried families).
[FN165]. There is no direct cause and effect relationship
between the particular variables outlined as constituting a quality
relationship. There is, however, evidence that those children raised in unhappy
or disrupted homes are more likely to have illegitimate children, to have brief
and unhappy marriages themselves, and to react negatively, insensitively, or
abusively to their own children. SCHAFFER, supra note 88, at 230.
[FN166]. Reed, supra note 9, at 706-07; see also Sadoff
& Billick, supra note 7, at 12.
[FN167]. In fact, these children, particularly girls, scored
higher on verbal intelligence tests. SCHAFFER, supra note 88, at 185-87. But
cf. Pfeffer, supra note 61, at 30-31 (discussing potential problems experienced
by daughters raised by their fathers in single parent households; for example,
perceived attachment and bonding difficulties as well as the lack of female
models during the oedipal stage allegedly resulting in the daughters' inability
to accept boys their own age).
[FN168]. SCHAFFER, supra note 88, at 33.
[FN169]. Id. at 44-45.
[FN170]. Id. at 60-72.
[FN171]. See GOLDSTEIN ET AL., supra note 162, at 17-21
("psychological parent" is one who provides routine, physical care,
nourishment, comfort, affection, and stimulation).
[FN172]. SCHAFFER, supra note 88, at 73-84.
[FN173]. The method used for selecting the twenty cases
involved randomly choosing from those states who still maintain traditional
fault grounds for divorce in addition to irreconcilable difference or breakdown
(the theory being that these states may offer more detailed information
regarding the background of the parties), from Wisconsin cases, and from cases
listed in American Law Reports dealing with custody awards based on the primary
caretaker role. Andrea G. Nadel, Annotation, Primary Caretaker Role of
Respective Parents as Factor in Awarding Custody of Child, 41 A.L.R. 4th 1129 (1990).
[FN174]. See In re Marriage of Anderson, 590 P.2d 944 (Ariz.
Ct. App. 1979); Yontef v. Yontef, 440 A.2d 899 (Conn. 1981); O'Neill v.
O'Neill, 536 A.2d 978 (Conn. App. Ct. 1988); Aldrich v. Aldrich, 505 So. 2d 116
(La. Ct. App. 1987); Osborne v. McCoy, 485 So. 2d 150 (La. Ct. App. 1986); Hord
v. Hord, 407 So. 2d 1314 (La. Ct. App. 1981); Landsberger v. Landsberger, 364
N.W.2d 918 (N.D. 1985); Gould v. Gould 116 Wis. 2d 493, 342 N.W.2d 426 (1984).
[FN175]. See supra notes 94-99.
[FN176]. See supra note 55 and accompanying text.
[FN177]. See, e.g., Smith v. Smith, 448 So. 2d 381, 383
(Ala. Civ. App. 1984); In re Anderson, 590 P.2d at 946; Yontef, 440 A.2d at
901-04; Landsberger, 364 N.W.2d at 919-20.
[FN178]. Osborne, 485 So. 2d at 152-53.
[FN179]. Yontef, 440 A.2d at 904; see, e.g., O'Neill v.
O'Neill, 536 A.2d 978, 980 (Conn. App. Ct. 1988) (the court erred in failing to
consider present best interest of the child when the court relied on past
medical history of mother rather than her present abilities to provide for
child).
[FN180]. See generally Elster, supra note 1, at 37-38;
Cochran, supra note 12, at 32-58.
[FN181]. See In re Marriage of Leopando, 435 N.E.2d 1312
(Ill. App. Ct. 1982); In re Marriage of Stickle, 408 N.W.2d 778 (Iowa Ct. App.
1987); In re Maxwell, 456 N.E.2d 1218 (Ohio Ct. App. 1982); Van Dyke v. Van
Dyke, 618 P.2d 465 (Or. Ct. App. 1980); Jones v. Jones, 423 N.W.2d 517 (S.D.
1988).
The primary caretaker preference has been criticized for its
emphasis on daily tasks done for the child which do not necessarily require
interaction with the child. Assuming that caring for a child's daily needs and
the quantity of time spent with the child are indicative of a strong
parent-child attachment ignores the theory that quality interaction is
essential to the development of a strong bond. Crippen, supra note 3, at
460-61; Elster, supra note 1, at 37- 38; Dupaix, supra note 3, at 663.
[FN182]. See supra notes 112-19.
[FN183]. See Dupaix, supra note 3, at 664-65.
[FN184]. Van Dyke, 618 P.2d at 467 (where both parties are
fit to have custody, the fact that the mother was the primary parent of the
child was sufficient to warrant award of custody to mother).
[FN185]. Jones, 423 N.W.2d at 519. Even though neither
parent was a "model of maturity," the mother had been primarily
responsible for the daily supervision, organization, and care of the child from
birth. Id. Therefore, an award of custody to the mother would continue to serve
the child's best interest. See, e.g., Maxwell, 456 N.E.2d at 1220.
[FN186]. In re Marriage of Leopando, 435 N.E.2d 1312, 1317
(Ill. App. Ct. 1982) (for a detailed recitation of the facts the court relied
on).
[FN187]. Ferris v. Underwood, 348 S.E.2d 18 (Va. Ct. App.
1986).
[FN188]. Id. at 20 (the natural parent had recently
remarried and would be able to provide financial and physical stability).
[FN189]. Id. at 19.
[FN190]. Larisa v. Michael, 466 N.Y.S.2d 899 (N.Y. Fam. Ct.
1983); Peckham v. Peckham, 543 A.2d 267 (Vt. 1988); Price v. Price, 541 A.2d 79
(Vt. 1987); Pamperin v. Pamperin, 112 Wis. 2d 70, 331 N.W.2d 648 (Wis. App.
1983). Contra In re Marriage of Stickle, 408 N.W.2d 778 (Iowa Ct. App. 1987).
[FN191]. Peckham, 543 A.2d at 268.
[FN192]. Price, 541 A.2d at 80 (citing the trial court's
finding that custody to the father would provide "the best opportunity for
fruitful and positive relation with both parents"); Pamperin, 112 Wis. 2d
at 82, 331 N.W.2d at 654 (citing Entwistle v. Entwistle, 61 A.D.2d 380, (N.Y.
App. Div. 1978) (stating that a "custodial parent's interference with the
other's visitation rights is so inconsistent with the best interest of the child
as to raise a strong probability that the custodial parent is unfit")).
[FN193]. Pamperin, 112 Wis. 2d at 80, 331 N.W.2d at 653.
[FN194]. See e.g., WIS. STAT. § 767.24 (2) & (5)
(1989-90).
[FN195]. See supra notes 32-34 and accompanying text.
[FN196]. Linda Whobrey Rohman et al., The Best Interests of
the Child in Custody Disputes, in PSYCHOLOGY AND CHILD CUSTODY DETERMINATIONS:
KNOWLEDGE, ROLES, AND EXPERTISE, supra note 13, at 59, 63-91 (offers a good
overview of custody criteria involved in the best of the child standard).
[FN197]. The psychologists must gather information from both
sides of the situation and must evaluate the child as thoroughly as possible by
viewing the child in his home environment as well as at school and by
considering the child's relationships with individuals significant to the
child. Douglas Knowlton, Psychology Evaluations of Children: Their Place in the
Courtroom, 66 N.D. L.REV. 673, 676 (1990).
[FN198]. One approach is called the "special
judge" model. A behavioral psychologist judge would be appointed to hear
custody disputes along with a legal judge. A problem with this approach is the
legal judge is still given final authority and may exercise discretion whether
or not to consider the psychologist judge's opinion. In addition, due process
concerns and delegation of duty problems arise when a legal judge attempts to
delegate authority to a nonjudicial source. Another approach involves a panel
of trained behavioral specialists who would make custody determinations which would
be binding on the court and subject to limited review. A similar approach
allows custody decisions to be determined by an informal panel comprised of
community members including a parent, a child development specialist, a family
law attorney, and a child. Jeffreys, supra note 13, at 127-29; see also supra
notes 12-15 and accompanying text.
[FN199]. If the court orders a mental health report but does
not allow either party to cross-examine the author, the probative value of that
report is void unless the parties stipulate to the admission of the report. In
addition, the court is prohibited from delegating its authority to a
nonjudicial source to weigh evidence because doing so violates due process.
Jeffreys, supra note 13, at 124-27.
[FN200]. See id. at 129-35 (arguing in favor of the mental
health professional as mediator). But see Fineman, supra note 15, at 760-68
(arguing that the "therapeutic" approach of helping professionals may
simply mask rather than eliminate the conflict).
[FN201]. Crippen, supra note 3, at 501.
[FN202]. See Fineman, supra note 15, at 740-53 (suggesting a
return to the legal model in custody cases and criticizing the helping
professionals for being biased and self-interested in asserting their power in
custody decision-making).
[FN203]. Some states have required mediation as a first
alternative to custody resolution. For example, Wisconsin's family law statute
reads: "In any action affecting the family, including a revision of
judgment or order . . . in which it appears that legal custody or physical
placement is contested, the court . . . shall refer the parties . . . for
possible mediation of those contested issues." WIS. STAT. § 767.11(5)(a)
(1989-90); see Moir, supra note 12, at 682 (therapists contend that therapy can
reduce the harm caused to children of divorce).
[FN204]. Crippen, supra note 3, at 500 (suggesting that
"reforms might be more helpful than mere argument on the merit of the
caretaker preference").
[FN205]. Moir, supra note 12, at 676-77.
[FN206]. Id.
[FN207]. David L. Faigman, To Have and Have Not: Assessing
the Value of Social Science to the Law as Science and Policy, 38 EMORY L.J.
1005, 1044 (1989).
[FN208]. Id
[FN209]. See Martha L. Fineman & Anne Opie, The Uses of
Social Science Data in Legal Policymaking: Custody Determinations at Divorce,
1987 WIS.L.REV. 107, 127-28.
[FN210]. Sheila Rush Okpaku, Psychology: Impediment or Aid
in Child Custody Cases?, 29 RUTGERS L.REV. 1117, 1144-45 (1976).
[FN211]. Id. at 1445.
[FN212]. Peggy C. Davis, Law, Science, and History:
Reflections Upon In the Best Interests of the Child, 86 MICH.L.REV. 1096, 1098
(1988).
[FN213]. Id. at 1100.
[FN214]. Boundaries between disciplines are not easily
defined. Because professional persons bring to their work in the child placement
process not only knowledge from their own discipline, but also a fund of
ordinary knowledge, they sometimes make determinations that are not for them to
make. While all professionals may be fact-finders, not all facts are for them
to find. While all may be opinion givers, not all opinions are for them to
give.
GOLDSTEIN, supra note 15, at 21. See generally id. at 54-78.
[FN215]. Faigman, supra note 207, at 1040.
[FN216]. Fineman & Opie, supra note 209, at 126-27; see
also Moir, supra note 12, at 671.
[FN217]. Fineman & Opie, supra note 209, at 127-28.
[FN218]. 1d. at 128.
[FN219]. Id. at 110 (a good discussion of how social science
studies may be used in the legislation of child custody policy).
[FN220]. See Thomas R. Litwack et al., The Proper Role of
Psychology In Child Custody Disputes, 18 J. FAM. L. 269, 276 (1979-80); see
also Knowlton, supra note 197, at 676.
[FN221]. Okpaku, supra note 210, at 1140.
[FN222]. Faigman, supra note 207, at 1048-49 (quoting R.
FEYNMAN, QED: THE STRANGER THEORY OF LIGHT AND MATTER 19 (1985)).
[FN223]. See generally GOLDSTEIN, supra note 15, at 21-31
(acknowledging that there is a fine line between a judge who is unpersuaded by
an expert because he/she is really relying on his/her own psychological
assessments and a judge who simply was unconvinced after weighing the relevant
evidence).
[FN224]. See Davis, supra note 212, at 1103.
[FN225]. See id. at 1104.
[FN226]. Litwack et al., supra note 220, at 296-97.
[FN227]. Knowlton, supra note 197, at 675.
[FN228]. Litwack, supra note 220, at 287; see also Knowlton,
supra note 197, at 676.
[FN229]. See generally Crippen, supra note 3, at 452-80
(discussing the problems Minnesota recently experienced in adopting the primary
caretaker preference).
[FN230]. See Fineman, supra note 15, at 740 ("helping
professionals" is used in discussing the changing role social workers have
in the family court system-from counselors or custody investigators to the role
of substitute decision-maker). The goal of the helping professional is defined
as being "therapeutic-to facilitate and assist the family in adapting to a
new post-divorce family structure." Id. at 745. This goal is found to be
at odds with the traditional legal goal of divorce, since there is no actual
termination of the parties' relationship. Id. at 764. Hence, the legal system's
involvement may not end either. Id.
[FN231]. Litwack et al., supra note 212, at 283 (emphasis
added); see also Edward F. Hennessey, The Family, the Courts, and Mental Health
Professionals, 44 AM. PSYCHOLOGIST 1223, 1224 (1989) (outlining three basic
types of intervention by mental health professionals: crisis intervention,
evaluation, and referral for treatment). See generally Daniel C. Schuman,
Psychiatric Aspects of Custody Loss, in CHILDREN OF SEPARATION AND DIVORCE,
supra note 7, at 55-56 (a discussion of the psychiatrist's contribution to
child custody cases).
[FN232]. Litwack et al., supra note 220, at 283-88.
[FN233]. Id. at 288-89.
[FN234]. Id. at 289.
[FN235]. Id. at 290.
[FN236]. Gary B. Melton & Brian L. Wilcox, Changes in
Family Law and Family Life, 44 AM. PSYCHOLOGIST 1213, 1215 (1989).
[FN237]. Id. at 1215; see discussion supra Part V.A.
[FN238]. Melton & Wilcox, supra note 236, at 1215-16;
see supra notes 32-37 and accompanying text.
[FN239]. Melton & Wilcox, supra note 236, at 1216.
[FN240]. Id. at 1214.
[FN241]. Id.
[FN242]. Faigman, supra note 207, at 1040 (citing Brown v.
Board of Education, 347 U.S. 483, 494 n.11 (1954)).
[FN243]. Id. at 1040-41.
[FN244]. Id. at 1041.
[FN245]. Okpaku, supra note 210, at 1153.
[FN246]. Fineman, supra note 15, at 770-71 (advocating
replacing the best interests of the child standard with a "primary
caretaker" rule).
[FN247]. Sadoff & Billick, supra note 7, at 10.
[FN248]. Id. at 12 (reinforcing the belief that custody
determinations should be made on the parent's ability to parent, not the
parent's sexual preference); cf. Reidy, supra note 12, at 86 (71% of judges said
they would award custody to the other parent if one parent was a homosexual).
[FN249]. Elster, supra note 1, at 26-27.
[FN250]. Reidy, supra note 12, at 78-79 (judges ranked
desires of children age 15 and older, custody investigation reports, and testimony
of the parties as more heavily weighted than testimony by a court appointed
psychologist).
[FN251]. Susan Snow & Steve Friedland, The Judge as
Healer: A Humanistic Perspective, 69 DENV. U.L.REV. 713, 718 (1992).
Particularly in areas of child related concerns, judges in our legal system are
expected to act in the role of healer as well as objective decisionmaker. The
healing process requires judges to utilize a forum for dispute resolution and
decisionmaking that focuses on respect and empathy for the participants. Id. at
718-21. Mediation is viewed by some as a more participatory and empowering
forum which can provide humanistic and healing qualities better than the
traditional courtroom adjudication. Id. at 721.
[FN252]. See Rachel F. Moran, Reflections on the Enigma of
Indeterminacy in Child-Advocacy Cases, 74 CAL.L.REV. 603, 629-38 (1986)
(reviewing ROBERT MNOOKIN, IN THE INTEREST OF CHILDREN: ADVOCACY, LAW REFORM,
AND PUBLIC POLICY (1985)). "Cognitive dissonance arises only when a
decision-maker feels responsible and accountable for the consequences of
intervention." Id. at 631. To alleviate dissonance, the decision-maker may
disclaim responsibility or displace it on to another. Id.
[FN253]. See Hennessey, supra note 231, at 1223-24.
[FN254]. Id. at 1224.
[FN255]. Letter authored by the Honorable Marianne E. Becker
on behalf of the American Bar Association, Family Law Section in the State of
Wisconsin announcing an interdisciplinary symposium entitled "Toward 2020:
Family Law and the Best Interest of the Child" reprinted in In Search of
Multi-Disciplinary Enlightenment To The Judicial Standard of The Best Interest
of The Child: The ABA Ripon Conference: Family Law and The Best Interest of The
Child April, 1991, 69 DENV. U. L.REV. 565, 568-69 (1992). I would like to thank
Judge Becker for presenting the idea which served as the foundation for this
paper and more importantly, for her patience and encouragement throughout its
creation.
END OF DOCUMENT
Copr. (C) 2004 West. No Claim to Orig.