About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

26 Concil. Cts. Rev. iii (1988)

handle is hein.journals/fmlcr26 and id is 1 raw text is: EDITORIAL JOINT CUSTODY RETROSPECTIVE Joint custody is in the news again. Two studies by Judith Wallerstein, Janet Johnston and Linda Campbell from The Center for Families in Transition in Marin County have raised the issue, and the media in their rush for controversy, as opposed to careful analysis and un- derstanding, have pushed these studies far beyond what the authors intended. These studies raise and answer important questions, but one of those questions is not, Does joint custody work or not? A brief review of the history of custody legislation followed a brief analysis of current research will begin to put the issue in a more enlightened context. One of the deepest, most primitive needs is a par- ents' connection to their offspring. This connection is almost as fundamental as life, itself. Therefore, it is not surprising child custody disputes are among the most intense and internectine of any dispute. Until the early eighteen hundreds, custody was awarded to fathers. Fathers usually outlive mothers, who often died in child-birth. Fathers were the eco- nomic head of the family. Percy Bysshe Shelley, better known as a poet, helped change this pattern. In his celebrated case, the court recognized Mary Godwin- Mother of Frankenstein-as the better parent. By award- ing custody to her, the court began the tender years doctrine and the doctrine of maternal preference. Freudian psychoanalytic theory completed the cir- cle, establishing up until 1973 a doctrine of maternal preference. Anna Freud, along with psychiatrist Albert Solnit and law professor Joseph Goldstein published Beyond the Best Interest of Children, a very influential text in the 1970's articulating this point of view. Yet society had moved a long way from the families present in late Nineteenth Century Vienna-the family system with which the psychoanalytic movement was most familiar had to a large extent disappeared, or at least were not the families presenting themselves to the divorce courts in the 1970's: sixty-three percent of all married women worked outside the home. Thirty-eight percent of all marriages were ending in divorce, and since 1977, over one million families each year had reorganized through a process of divorce. The old for- mulations simply did not apply. Robert Mnookin in his classic Bargaining in the Shadow of the Law: the Case of Divorce in the Courts, Yale Law Journal, April, 1979, provided a penetrating analysis of the problems presented by the old formula- tions. According to Mnookin, we force parents into an adversary arena to decide the most difficult and impos- sible question, Who is the psychological Parent? Then we award sold custody to that parent, ignoring the one option that might make sense, that both parents con- tinue to be involved. Like most social innovations-including the institu- tion of marriage and family, itself-parents began in- venting options making sense to them, permitting both parents to continue in the lives of their children. These experiments were personal and were created without benefit of sociological research. For millennia and since the beginning of time, social institutions have grown out of the collective experience of human beings in similar circumstances inventing options working for them. Fathers groups organized around this issue and be- gan to sponsor legislation for joint custody. California was the fifth state to adopt this option in 1980, but California's frequent and continuing... language be- came the model for most other statutes. The history of this legislation provided important clues to some of the underlying motivations: California's law stated it was presumed to be in the best interest if the parents agree (to Joint custody)... creating a presumption for agree- ment, not a presumption or a preference for joint cus- tody. The statute allowed wide discretion between joint and sole custody when the parents did not agree, estab- lishing the standard for decision as the best interest of the children. This legislation grew out of a dialectic struggle be- tween those who wanted a preference, or presumption, for joint custody, and those who wanted to declare no preference or presumption. The latter position prevailed establishing an option for joint custody, but with a factor for the judge to consider, who would be most likely to share.... This provision was later dubbed the friendly parent provision by feminist critics of joint custody legislation. Opponents to declaring a preference for joint cus- tody centered their arguments around the issue of pref- erences and presumptions and the negative, unintended consequences for families where such an arrangement is not a preference. The opposition was not around the issue of joint custody. Opponents pointed out macro preferences break down in micro application to individual families and place extraordinary burdens on those families where such ar- rangements are not preferred. Preferences also establish bargaining valences which can be traded off, such as I will not press my claim for joint custody, if you give me a break on support. 'iii CONCILIATION COURTS REVIEW/VOLUME 26, NUMBER 1/JUNE 1988

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most