Date: April 26, 2013 Schedule
Time: 8:00 a.m. – 4:00 p.m.
Location: Duke Law School, Room 4055
Co-editors: Professor Katharine T. Bartlett, Duke Law School and Professor Elizabeth Scott, Columbia Law School
The most famous article ever written on child custody regulation, and one of the most important in family law scholarship altogether, is Robert Mnookin’s Child Custody Adjudication: Judicial Function in the Face of Indeterminacy, published in the Journal of Law and Contemporary Problems in 1975. The contribution of this article is hard to overstate: Professor Mnookin analyzed the best interest of the child standard, just emerging at the time as the dominant custody decision rule, and explained its vast indeterminacy and its distinctive character as a legal rule. He also clarified the important differences among types of custody disputes, and particularly between private custody disputes and those in which the state seeks to take custody of a child from a parent. Mnookin clarified the interests at stake in custody adjudication and imposed a kind of conceptual order on an area of law that was unsettled and confusing; many of his insights have become conventional wisdom. Legal scholars have continued to study child custody regulation and several have critiqued the best interest standard building on Mnookin’s work; social scientists have also studied custody dispute resolution and arrangements. But no one has undertaken a thoughtful analysis of developments in the law and in practice since Mnookin wrote his pathbreaking article. That is the goal of this symposium, which brings together leading legal scholars and social scientists who study child custody and who have the knowledge and perspective to analyze the changes and continuities, both predictable and surprising, over two generations.
The papers in the symposium will focus on a several dimensions of contemporary custody law and practice. Some interesting questions center on the puzzling entrenchment of the best interest standard; despite uniform sharp criticism by scholars beginning with Mnookin, very few states have adopted a more determinate custody standard. Elizabeth Scott’s paper analyzes this puzzle; she argues that it can be explained as resulting from a political economy deadlock between mothers’ and fathers’ advocates, together with misplaced faith by courts in mental health professionals. Katharine Bartlett was the Reporter for the custody provisions of the American Law Institute’s Principles of the Law of Family Dissolution, which built substantially on an earlier proposal by Elizabeth Scott to resolve custody disputes by focusing on the parents’ past caretaking roles. Bartlett’s paper examines both the failure of legislatures to adopt the past-caretaking standard and the larger positive impact that standard has had in leading child custody appellate court decisions.
Two papers will offer different perspectives on non-judicial resolution of child custody decisions. One paper by Robert Emery, the leading American social scientist studying mediation and the impact of divorce on children, will analyze the growing prominence of divorce mediation. In reviewing the research (including his own important work), Emery argues that mediation reduces the costs of divorce and dissolution for most families. Jana Singer, a scholar who in previous work has expressed deep reservations about mediation and other forms of private ordering, will contribute a paper addressing the trend toward co-parenting and its link to mediation and to substantive legal changes. Bruce Smyth, an Australian social scientist who is recognized internationally as a leading researcher on family dissolution and custody will contribute an article analyzing the implication of his and other scientists’ research on custody for legal regulation; his work has focused on joint custody arrangements under laws that favor that arrangement.
Two or three papers will focus on custody disputes between parents and third parties, and particularly on government efforts to take custody of children. Clare Huntington has written extensively on minimizing the costs of state intervention in families, and is writing about the resistance of the child welfare system to reform. Emily Buss, who has written insightfully about parental rights and state intervention in families, will also contribute a paper probing the account of “best interest” reflected in the development of constitutionally protected parental rights. Finally, an issue that has emerged largely in the past decade involves custody decisions in families with gay and lesbian parents. Nancy Polikoff will contribute a paper on this issue.
Robert Mnookin will comment on the symposium papers. Mnookin’s work on child custody includes not only his Law and Contemporary Problems article, but also an important empirical study of custody arrangements in a California county, conducted with psychologist Eleanor Maccoby in the 1980s.
Authors and commentators
- Prioritizing Past Caretaking In Child Custody Decisionmaking
- The Uneasy Alliance Between Parents’ Rights and Children’s Interests
- Who Knows What’s Best for Children? (working title)
- Tinkering with the Machinery of the Child Welfare System
- From Third Parties to Parents: The Case of Same-Sex Couples
- Gender Politics and Child Custody: The Puzzling Persistence of the Best Interest Standard
- Bargaining in the Shadow of the Best Interest Standard: The Close Connection Between Substance and Process in the Resolution of Divorce-related Parenting Disputes
- Legislating for Shared-Time Parenting after Parental Separation: Insights from Australia?
- Professor Robert Mnookin, Harvard Law School