The Politics of Custody and the Transformation of American Custody Decision Making

by Martha A. Fineman

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In recent years, much political attention in the United States has focused on the family as an institution in a state of crisis and transition. Advocates of various reforms assert that the stresses of modern life, par­ticularly the high divorce rate, will certainly change the family. The family is viewed as an institution in a transitional stage and, as such, is the subject of ideological struggle within the context of the political sys­tem. Of particular interest is the form and substance of the various characterizations of the perceived problems associated with the family. The way we define the issues, to a great extent, dictates the solutions. The assumptions underlying a variety of suggested reforms in the rules that govern families reveal the tensions in conflicting attitudes concerning the familial institution. Separated out for particular concern have been the children, anointed as the “victims” of the dislocations in the modern family. For example, moral and political concerns over the implications of the no-fault, freely accessible divorce systems adopted by the states have tended to center on the resulting precarious position of the “children of divorce.”

Characterizing children as innocent victims in need of protection is typical of professional reformers’ rhetoric in this age of no-fault di­vorce. In fact, there seems to be a strong underlying antidivorce aspect to much of this rhetoric and the reforms it supports. In the custody area this aspect is manifested by rules that seek to preserve as much as pos­sible the predivorce power and authority relationships between fathers and their children. Even though divorce is now easier to obtain and women’s economic position has improved, the state’s supervision of the termination process and imposition of substantive standards regulating the postdivorce mother-child unit has greatly increased.  While there is no longer serious consideration of the idea that the law should  prohibit or make it difficult to divorce, the terms of the dissolution and the structuring of postdivorce relationships are and will continue to be dic­tated and monitored by the state.

This increased state regulation of the post-divorce family has occurred against the backdrop of significant social and legal develop­ments. These developments have characterized the  establishment of, and the response to, the women’s movement in the United States. Dur­ing the 1970s there were successful attempts in most states to make laws “gender neutral.” Such changes were  particularly significant in the family law area in which gendered rules had been the norm. Femi­nists concerned with law reform considered the push for degendered rules a symbolic imperative even when they recognized that such re­forms might actually result in removing an arguable advantage for women as in the case of maternal preference rules for deciding custody cases.

In addition, the women’s movement’s push for equality in the family and workplace generated various backlashes. For example, amidst rhet­oric that labeled delinquent fathers as “deadbeats,” state and federal governments passed economic reforms concerning property divisions at divorce and enacted stringent state and federal provisions for the collec­tion of past due child support. These reforms spurred the formation of fathers’ rights groups. These groups appropriated and successfully em­ployed the feminist rhetoric of equality and gender neutrality to force reforms in the family law area, such as mandatory joint custody, which were not particularly beneficial to women and children.

Fueling the successes of the fathers’ rights groups have been various professionals involved in the divorce process who viewed the traditional rules as imbalanced in favor of women. These professionals used the images of excluded (but worthy and caring) dads to fashion a profess­ional standard of “shared parenting” after divorce. This new norm was to be implemented via the mediation skills of these same professionals.

It is interesting to note how much more successfully the equality model has been adopted and implemented in the context of  family law as compared to more general laws. As equality and the concurrent concept of gender neutrality have been incorporated into divorce deci­sion making, the old, tested gendered rules that permitted predictable, inexpensive decisions to be made without  protracted litigation have been set aside. One problem confronting the newly, formally degendered family law system is the need to create new gender neutral factors or processes to handle the cases. The need for an authoritative articulation of alternative standards has set the stage for political and ideological battles.

This Article considers two results of this political struggle over the control of custody decision making at divorce: first, the construction and articulation of a perceived need for independent, legal child advocacy at divorce; second, the designation of certain professionals as the source of wisdom in regard to appropriate advocacy for children. Both of these developments reveal ideological changes in society’s perception of the mother-child bond that occurred as a by-product of the move to gender­ neutral family law.

The institutionalization and professionalization of the concept of child advocacy have operated to justify regulating custody decisions at divorce in favor of increasing control by men over their children’s and thus their ex-wives’ lives. Proposals for reforms in this area also re­flect competing perceptions of large segments of the legal and nonlegal professional communities about the functioning of families and individ­uals within families, about the implications of divorce, and about the appropriate role of the legal system in the creation and imposition of social norms.

This Article will critically analyze the development of child advocacy. I will first consider the factors that set the stage for the develop­ment of the concept of independent child advocacy and how that con­cept has been put into operation. I will then examine two assumptions underlying the concept of independent child advocacy. The first as­sumption is that the child should be considered as separate from the parent. The second is that it is possible to independently define chil­dren’s interests when these interests are conceptually separated and set apart from their parents’. I ultimately conclude that the presentation of independent child advocacy in the divorce process operates to empower certain professions and greatly to increase the power of fathers in the process, rather than to benefit children.”

Read more at:

Fineman, Martha Albertson, The Politics of Custody and the Transformation of American Custody Decision Making (1989). 22 U.C. Davis L. Rev. 829 1988-1989, Emory Legal Studies Research Paper No. 12-206, Available at SSRN:

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