Dominant Discourse Professional Language and Legal Change

Martha Albertson Fineman

Emory University School of Law


Harvard Law Review, Vol. 101, No. 4, 1988
Emory Public Law Research Paper, Forthcoming

This article examines the changing relationship between legal and non-legal decision-makers in custody cases. Although custody determinations historically were viewed as legal events accomplished by legal decision-makers through legal procedures, the recent trend toward joint custody and mandatory mediation represents an appropriation by the helping professions of authority in this area. The shared-parenting ideal established by these professional groups facilitated substantive change in long-lasting policy. These changes have been obscured by the helping professions’ focus on the decision-making process.

This paper analyzes the helping professions’ presentation of the contrasting therapeutic and legal models and argues that the success of the helping professions in displacing legal divorce in custody matters resulted from the criticism of existing practices, procedures, and decision-makers and from their success in labeling divorce as an emotional crisis. Professor Fineman suggests a return to a legal model in custody cases and proposes the 'primary parent' rule as a way to implement this goal.

Number of Pages in PDF File: 48

Keywords: discourse, custody, divorce, feminist legal theory, custodial mothers, fathers, shared parenting, physical custody, children as property, gender

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Date posted: August 20, 2012  

Suggested Citation

Fineman, Martha Albertson, Dominant Discourse Professional Language and Legal Change (1988). Harvard Law Review, Vol. 101, No. 4, 1988; Emory Public Law Research Paper, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2132328

Contact Information

Martha Albertson Fineman (Contact Author)
Emory University School of Law ( email )
1301 Clifton Road
Atlanta, GA 30322
United States
404-712-2421 (Phone)
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