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26 Concil. Cts. Rev. iii (1988)

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   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.



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