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

Abstract:     
In the age of no-fault, readily accessible divorce systems throughout the United States, children have received considerable attention as innocent victims in need of protection. Such a perspective, in tandem with the now widely accepted equality model in family law, has led to changes in the custody decision making process including the appointment of a legal child advocate at many divorces. This Article critically analyzes the development of child advocacy, which has been built on the problematic assumptions that the child should be considered as separate from the parent and that it is possible to independently define children’s interests when such interests are conceptually separated from their parents’. Rather than benefit children, the presence of a child advocate representing the amorphous best interest of the child in the divorce process inappropriately empowers certain professionals in the custody decision and greatly increases the power of fathers. The Article argues that the role of legal advocate for children in custody proceedings must be reformed, and it envisions an attorney who focuses on the reintroduction of legal values into the custody decision and lobbies for the replacement of the best interest of the child test with a more determinative substantive rule.

Number of Pages in PDF File: 37

Keywords: custody, divorce, no-fault divorce, family law, child, children, child advocate, family, feminism, feminist, mandatory joint custody, custody decision making, gender neutrality, shared parenting, best interest of the child, fathers’ rights, guardian ad litem, maternal preference

Accepted Paper Series