Family Structure and the Law
July 23, 2002
by Ronald K. Henry

Throughout most of our nation's history and in much of the world today, the law contained a strong or conclusive presumption that sole custody would be awarded to the father in the event of family dissolution. The early feminist meeting in Seneca Falls, New York in 1848, for example, included the fact that fathers automatically received custody as a principal complaint in its Declaration of Sentiments.

Prior to the industrial revolution, most parents worked side-by-side with the children on the family farm or in the family trade. Children were nurtured and educated through almost continuous contact with both parents and child-rearing books through the 18th and mid-19th century emphasized the father's centrality in raising the children and preparing them for the adult world. As the industrial revolution accelerated through the 19th century by pushing more fathers out of the family enterprise and into the factories, social theorists began to exalt rigid sex role separations with father as external wage earner and mother as home-bound nurturer. Still, the pendulum swung slowly and the pro-feminist philosopher John Stewart Mill observed that, while the idea was interesting, the public was insufficiently prepared to discuss mother custody.

Continued industrialization, coupled with the then perceived virtue of getting women out of the paid workforce in order to create jobs for returning servicemen at the end of World War I, culminated in a full-blown "cult of motherhood" and the establishment of the "tender-years doctrine" in most states. The pendulum of public prejudice, having swung from one extreme to the other, then enforced automatic mother custody with the same rigidity as the earlier enforcement of automatic father custody.

In approximately the last 20 years, the pendulum has begun swinging toward a more centered position² and most states have abrogated the tender-years doctrine through statute or court decision as a violation of equal protection. Virtually all states now give at least lip service to the principle that custody decisions should be made in accordance with the "best interests" of the children rather than by reference to the parents' gender. Although the legal regimes vary, it is now recognized in all states that either the mother or the father can "win" the battle for custody of the child.

A. What We Know About Children's Needs

While the law was advancing to the point of recognizing that either mother or father could be the better parent, social science research confirmed that the best parent is both parents. Ten years ago, it was considered impolite to suggest that two-parent families were functionally superior to single-parent families. Today, the notions that two-parent families are unimportant and that government can provide an effective substitute have been repudiated. In their place is a broad political and scientific consensus that children need two parents.

In 1965, Patrick Moynihan was condemned for his observation of the consequences of family breakdown:

From the wild Irish slums of the 19th century eastern seaboard, to the riot-torn suburbs of Los Angeles, there is one unmistakable lesson in American history: A community that allows a large number of young men to grow up in broken families, dominated by women, never acquiring any stable relationship to male authority, never acquiring any rational expectations about the future -- that community asks for and gets chaos.

Today, Moynihan's heresy reflects the consensus. The view from the left by groups like the Progressive Policy Institute³ is that:

Traditional liberals' unwillingness to acknowledge that two-parents families are the most effective units for raising children has led them into a series of policy cul-de-sacs. . . Our point is that at the level of statistical aggregates and society-wide phenomena, significant differences do emerge between one-parent and two-parent families, differences that can and should shape our understanding of social policy.

The view from the right by groups like the American Legislative Exchange Council⁴ is that:

With a unanimity of view that is virtually unparalleled, social science researchers have documented the fact that children of divorce or unwed birth fair poorly in comparison to children from intact families. Regardless of the social problem which is under consideration, whether it be drug abuse, juvenile delinquency, teenage pregnancy, low self-esteem, poor academic achievement, or even suicide, research points to family breakdown as a primary cause.

In accordance with the resurrected understanding that two-parent families are important for children, liberals and conservatives have reached common ground on the importance of encouraging family formation and family preservation. But what about children of divorce?

B. Winner/Loser Legal Structures Guarantee Only The Child's Loss

Courts are most accustomed to adversarial presentations that are resolved by the selection of a winner and a loser. The system works well in commercial disputes. The court picks a winner and a loser, the loser is ordered to pay the winner, then we move on to the next case. The difference in domestic relations cases is that it is immoral and destructive to treat children as prizes to be awarded to a winner and denied to a loser.

Children are born with two parents. Children want, love, and need two parents. The fact that mother and father no longer live under the same roof does nothing to diminish the child's need for both parents. The only thing that is assured by a winner-take-all domestic relations system is that the child will necessarily lose because the child walked into court with two parents and walks out with only one.

If we are honestly concerned with preserving the "best interests" of the child, we must examine unflinchingly the procedures by which we purport to identify those "best interests." The key is in understanding the nature of a custody decree.

C. The Custody Decree Is An Injunction

From birth and throughout the marriage, the law recognizes that the child has two parents. Both of these parents have unrestricted access and custodial rights with respect to the child. A custody decree is an order which restricts parents' access and custodial rights with respect to the child and, like any other injunction, enjoins the parents from the exercise of their former, unrestricted rights.

While a custody decree is an injunctive order, the courts too often fail to apply the principles that are applicable to all other injunctions. In all other situations, the guiding principle is that injunctive relief should be carefully crafted to impose only such minimum restrictions upon the parties' prior freedom as is required to resolve the present dispute. In contrast and largely because of the past swings of the pendulum (automatic father sole custody, automatic mother sole custody), the most common custody decrees issued by the courts today impose maximum rather than minimum change upon the parent-child relationship.

Domestic relations courts receive litigants at the time of greatest emotional stress. By encouraging winner/loser resolutions, they exacerbate the tension and magnify the trauma for the children who are the prize of the contest. Divorce court becomes an opportunity to win or get even for real or imagined past abuses. It also creates the terror of losing. All of these magnify and intensify the adversarial nature of the process.

D. Is There A Better Way?

Legal procedures and presumptions have consequences beyond the cases that are actually litigated. The rules of the game that determine how individual cases will be litigated also shape the negotiations for the settlements that are reached in the vast majority of all cases. Indeed, one of the principle claims made on behalf of the so-called "primary caretaker" doctrine is that it will enhance settlements by making the winner easily identifiable in advance.

There is no doubt that any set of procedures and presumptions will shape the negotiation and litigation postures of the parties to a custody dispute. The question is whether a particular set of procedures and presumptions will enhance the "best interests" of the child. Predictability and simplicity cannot be goals in themselves. A preference for the tallest parent is certainly simple and no more nor less rational than our earlier assumptions that all fathers or all mothers were automatically the better parents. The real task is to ascertain the best interests of the child in a manner that encourages rational decisions by the court and encourages child-oriented negotiations.

E. The Best Parent Is Both Parents

The broad political and scientific consensus that children do better when they have two actively involved parents should shape our approach to custody determinations. We devote massive attention to the need for family formation and family preservation precisely because we know that children need two parents. It is damaging to children when we allow that knowledge to be submerged or forgotten upon the filing of a divorce petition.

Domestic relations law should not be focused upon developing easier ways to pick the winner and loser. Asking who will be the winner and who will be the loser is the wrong question because we know that the child will be the loser in either event. In the vast bulk of all cases, both mother and father are good parents who genuinely love their children and who wish to function as parents, not visitors, to those children. Our inquiry should not be addressed to the question of which parent is marginally better than the other. Instead, the courts should seek to preserve for the child as much as possible of the benefits that we unambiguously know come from full, active, emotional, and physical relationships between the child and both parents.

It is at this point that the nature of a custody decree as an injunction becomes important. The courts should be striving to impose as little change from the intact two-parent family as necessary to accommodate the changed circumstances of the litigants.

In cases of mature, cooperative parents, the court will need to do little more than bless the parties saying, "Go, ye, and co-parent in peace." Other cases, however, involve conflict between the parents which arises on a continuum from the mundane (who takes junior home for Christmas dinner) to the horrorific (child sex abuse allegations, whether true or false). The key to preserving the "best interests" of the child lies in recognizing that it is not necessary to conduct a "parentectomy"⁵ the cutting out of one parent, in order to resolve the conflict. As with any injunction, the judge should impose only such restrictions on the child's relationship with both parents as are necessary to resolve the existing and foreseeable disputes.

F. How To Encourage The Two-Parent Family, Especially After Divorce⁶

Lawyers, like most mortals, take comfort from their ability to place matters into pigeonholes. Historically, the choices were seen as father custody or mother custody. More recently, a legal pigeonhole for joint custody⁷ has been acknowledged.

An examination of custody decrees, however, reveals a continuum rather than three discrete categories. In all but a tiny minority of the most pathological cases, the custody order contains explicit provisions for continuing contact between the child and both parents, including overnight residence. Except for a tiny minority, then, all custody decrees preserve at least a portion of the shared parenting which existed prior to the divorce. Father custody, mother custody, and joint custody are merely points on the continuum of shared parenting.

By understanding that all custody decrees represent discrete points on the continuum of shared parenting,⁸ it is possible to acknowledge some of the realities that we have always known but have not always remembered while fashioning those decrees:

1. Most Parents Are Normal

In most marriages, both spouses are good parents who love and wish to be an active part of their children's lives. Policies should be based upon the norm of human response rather than upon the pathological extremes. The winner-take-all approach to custody encourages a bifurcation into good parent and bad parent categories. The bad parent is then more easily relegated to a marginal role in the child's life. All losers, all bad parents, are then more easily painted with the same brush of a "standard visitation schedule" encompassing alternate weekends and scattered holidays. All losers, ranging from those who were almost winners to those who barely avoided termination of parental rights, are thus lumped together by the presumption of pathology. Abolition of the presumption of pathology is the first step towards protection of the child's best interests.

2. Effective Parenting Takes Time

Disneyland Daddies' Marginal Mommies, and their non-custodial children have a common complaint; "visitation" just doesn't feel like a real parent-child relationship. Parent to child teaching occurs in the quiet moments, the shared tasks, the talks at the end of the day. School night sleep-overs are every bit as important as Saturday extravaganzas, especially for older children who see weekends as a time of conflict between the attractions of parents and peers.

3. Stereotypes Damage Children

Stereotypes about fathers seeking custody to avoid child support and mothers grasping children as meal tickets do not help to resolve custody disputes. Both stereotypes ignore the simple human fact that parents love their children and want to be with them. Stereotypes have become so ingrained that the United States Department of Health & Human Services was actually surprised to learn that young fathers care about their children⁹:

Research to date has produced a new and significant insight about the fathers of children born to teens: They typically are motivated to support their families, even when they are not married to their partners, and even though they earn disproportionately little and suffer from high unemployment.

This finding contradicts the widely held notion that young fathers are able but unwilling to support their children.

The Changing Face of Child Support Enforcement: Incentives to Work with Young Parents, United States Department of Health & Human Services, Office of Child Support Enforcement, December 1990, page xix.¹⁰

Stereotypes about men create the Catch-22 that fathers don't care enough to seek custody and, if they really cared, they would not put the children through the trauma of a court battle. Stereotypes about women and perceptions of gender bias favoring mother custody in the courts create pressure for mothers to seek sole custody even when they recognize that it is not in the child's best interests. Organizations like Mothers Without Custody report that one of the greatest problems encountered by the more than one million non-custodial mothers in the United States is the ostracism they suffer after being pressed to explain why they do not have sole custody. Stereotypes of men and women damage children by indiscriminately ascribing fixed characteristics to large groups of individual human beings. Surely there are some fathers who are uncaring deadbeats and some mothers who are uncaring gold diggers.¹¹ Each child, however, has one specific father and one specific mother, not a caricature from a class.

4. No Substitutes, Please

Since we know that children of divorce fare poorly in comparison to children from intact marriages, the defenders of the winner-take-all system have developed something of a cottage industry in seeking out factors other than parent loss to explain the deficit. The most commonly asserted rationale is poverty. Single-parent custody would be just fine, we are told, if only we would increase the government subsidies and the income transfers from non-custodians. If increased income is the salvation, we should expect children in stepfamilies to be doing quite nicely since such families have two adults plus an income transfer from the non-custodian, resulting in an economic level at or above that of intact two-parent families. Instead, children in step-families show every bit as many problems as children in single-parent homes. See National Commission on Children, "Speaking of Kids: A National Survey," 1991; Zill, Child Trends.

Many children have grown up economically impoverished and thrived as adults. The emotional and psychological impoverishment that comes from parent loss is far harder to overcome. As stated by Professor Lawrence Meade of New York University:

The inequalities that stem from the work place are now trivial in comparison to those stemming from family structure. What matters for success is not whether your father was rich or poor but whether you had a father at all.

Parent loss through family breakup is a disaster for children. The legal system through which divorcing families must travel can be structured to have positive or negative effects on parent-child bonds. The task is to identify and encourage structures which preserve and enhance the child's bond with both parents.

G. How To Put The Pieces Together

Giving legal recognition to the child's need for the continued, active physical and emotional involvement of both parents after divorce is neither new nor radical. The pieces necessary for a child-centered custody determination process are already well established throughout the states. Political realities being what they are, however, no state currently has in place a comprehensive and consistent program for achieving the goals set forth here. The following paragraphs propose such a program with references to examples from states which have already enacted various components.

1. Continued Shared Parenting Should be Presumed and Encouraged

More than two thirds of the states already encourage the continuation of shared parenting through specific reference to the availability of joint custody.¹² While these statutes give helpful recognition to the virtue of continued shared parenting, they often jump to the simple creation of custody pigeonholes without discussion of their purpose in preserving the parent-child bond. In keeping with the understanding that a custody order is an injunction, the courts should begin with the unrestricted shared parenting that existed during the marriage and back away from the child's entitlement to its continuation only reluctantly and as necessary to accommodate the needs of the specific parties.

To clarify the state's interest in and commitment to the involvement of both parents in the child's life after the divorce, all states should follow the lead of such widely divergent states as California and Texas, which have established the following statutory policies:

(a) The Legislature finds and declares that it is the public policy of the state to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy....

California Civil Code, Section 4600.

(a) It is the policy of this state to ensure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interests of the child and to encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.

Texas Family Code, Section 14.201.

2. Encouragement Of Cooperative Behavior

The structure of the law shapes behavior. If you want combat, enact laws that reward parents for attacking one another. If you want cooperation and conciliation, enact laws that reward it. California has taken a brilliant step. In cases where the distance separating the parents or other factors make equal residential time impractical, California states that its courts are to give a preference to that parent who shows the greater willingness and ability to cooperate in keeping the other parent involved in the child's life:

(1) [Custody should be awarded] to both parents jointly pursuant to the Section 4600.5 or to either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the non-custodial parent, subject to Section 4608, and shall not prefer a parent as custodian because of that parent's sex.

California Civil Code, Section 4600(b)(1). As with any other aspect of human endeavor, you get more of the behavior that you choose to reward and less of the behavior that is penalized.

3. Require Planning

A growing number of states and localities recognize that divorce procedures are often commenced with little or no thought given to the consequences for the children or for the practical relationships that will emerge after the divorce is granted. As a result, these states and localities encourage or require parents to attend training sessions which describe the needs of the children and the realities of the parental interactions that will be required after divorce regardless of the exact terms of the custody decree.

Many of the states report that these training sessions result in an increased number of reconciliations and voluntary agreements of shared parenting. In one small survey, the National Council for Children's Rights found that a majority of respondents would not have gotten divorced if they had realized the extent to which they would remain tied together by their common responsibilities to the children even in winner/loser sole custody cases. Although the survey was too small to be statistically significant, it identifies an area of tremendous positive potential for family preservation and the demilitarization of divorce.

For those couples who elect to proceed with the divorce, all states should require the submission of a "parenting plan" prior to the entry of the divorce decree. The program currently enforced in the state of Washington is among the most highly developed. At the outset of the divorce proceeding, each couple is required to work out a detailed parenting plan covering the full range of the child's physical, emotional, and financial needs. If the parties are able to agree upon a single parenting plan, no custody trial is required. If the parents are unable to agree upon a single plan, each parent submits a plan and both plans are available for the court's review in determining the custody arrangement that will serve the best interests of the child.

The exercise of preparing the parenting plan forces both parents to be more realistic about their respective capabilities to provide for the needs of the child and to realize that each will benefit from sharing the burden with the other. The fact that both parenting plans will be available to the judge in contested cases provides vital information regarding the parties' actual capabilities and acts as a deterrent to manipulations in which the child is used as a weapon against the other spouse.

4. Minimum Access Guidelines

In the same way that states have enacted child support guidelines in an effort to restrict idiosyncracies and assure the adequacy of awards, minimum access guidelines have also been enacted. Like child support guidelines, the access guidelines have presumptive effect and stem from a recognition that historical awards were often inadequate to permit the preservation of a parent-child bond. Such guidelines may never eliminate the prejudice of the still-sitting Georgia judge who is reputed to have said, "I always award custody to the mamas 'cause I ain't never seen the calf follow the bull, they always follow the heifer,"¹³ but a guideline can provide a basis for resisting prejudice both in the courtroom and on appeal. The minimum access guidelines currently in force in the state of Texas are the most fully developed and are recommended.

CONCLUSION

Children are born with two parents. Children want, love, and need two parents. In all but the vanishingly small number of pathological cases, the courts should strive to maximize the involvement of both parents. If distance or other factors prevent a substantially equal relationship with both parents, the preference should go to that parent who shows the greater willingness and ability to cooperate and nurture the other parent's relationship with the child. That's what being a caretaker is all about.

Endnotes:

1. Ronald K. Henry is a partner in the law firm Kaye, Scholer, Fierman, Hays & Handler. Mr. Henry serves on the American Law Institute Family Law Project and the American Bar Association Custody Committee.

2. For example, the American Psychological Association adopted the following resolution at its 1977 meeting:

Be it resolved that the Council of Representatives recognizes officially and makes suitable promulgation of the fact that it is scientifically and psychologically baseless, as well as a violation of human rights, to discriminate against men because of their sex in assignment of children's custody, in adoption, in the staffing of child-care services, and personnel practices providing for parental leave in relation to childbirth and emergencies involving children and in similar laws and procedures.

3. Putting Children First: A Progressive Family Policy for the 1990's, Progressive Policy Institute, September 27, 1990.

4. Children, Family, Neighborhood, Community: An Empowerment Agenda, American Legislative Exchange Council, 1991.

5. "Preventing Parentectomy After Divorce," Frank S. Williams, M.D., Director of Family and Child Psychiatry, Director of Programs for Children and Families of Divorce, Cedars-Sinai Medical Center, Los Angeles, California, 1990.

6. From the title of a bi-partisan panel discussion chaired by Senator Christopher Dodd, Chairman of the Senate Subcommittee on Children, Family, Drugs and Alcoholism, held in Washington, D.C., on March 19, 1992. Participants included the Progressive Policy Institute, the Family Research Council, the Heritage Foundation, the Institute for American Values, and the National Council for Children's Rights.

7. Joint custody is often further subdivided into joint legal custody (meaning shared decision making) and joint physical custody (meaning residence in each parent's household beyond whatever amount of time is meant by "visitation").

8. The tiny minority of pathological cases in which one parent is purposely excluded from the child's life represents the "exception that proves the rule" and is not further considered in this analysis.

9. Maintaining the stereotype that fathers do not care about their children also requires a very special compartmentalization of the mind. Fathers' devotion to and sacrifice on behalf of their children is so naturally expected that it is hardly noticed. The coal miner who continues to work while dying of black lung disease may look like "The Patriarchy" to some but is just a devoted father as far as I can see. In the popular movie, "The Little Mermaid," no one is surprised that King Triton sacrifices everything to save his daughter yet, upon divorce, we would expect him to quietly walk away.

10. The bureaucracy is not alone in its surprise:

When I first started researching this book, I was prepared to rediscover the old saw that conventional femininity is nurturing and passive and that masculinity is self-serving, egotistical, and uncaring. But I did not find this. One of my findings here is that manhood ideologies always include a criterion of selfless generosity, even to the point of sacrifice. Again and again we find that "real" men are those who give more than they take; they serve others. Real men are generous, even to a fault. . . . Manhood is therefore a nurturing concept, if we define that term as giving, subventing, or other-directed.

Manhood in the Making: Cultural Concepts of Masculinity, David D. Gilmore, Yale University Press, 1990, page 229. In August 1990, a Los Angeles Times survey reported that 39 percent of fathers would quit their jobs to stay home with their children if that option were available to them.

11. Lest I be accused of my own sexual stereotyping, note that the roles are sometimes reversed. When mothers are ordered to pay child support, their compliance rate is lower than that of fathers. See, e.g., 1991 Statistics of Child Support Compliance, Office of Child Support Recovery, State of Georgia.

12. The Winter 1991 issue of Family Law Quarterly, Volume XXIV; No. 4, listed 34 states with joint custody statutes and 2 states with joint custody case law. The existing joint custody statutes vary from the presumptive to the permissive. One of the strongest presumptions of continued shared parenting is found in the state of Louisiana and that statute is recommended.

13. Jurisprudential wisdom aside, the learned judge may wish to undertake further study in animal husbandry. "Heifer" is the term used for a young cow that has not had a calf.