Custody Determinations at Divorce: The Limits of Social Science Research and the Fallacy of the Liberal Ideology of Equality

Abstract

As the incidence of divorce has increased, the old ideal of maternal preference has been successfully challenged. This has left custody decision-making without grounding because policymakers have been unable to develop an equality based gender-neutral substitute for maternal preference which can be easily and cheaply applied to implement the best interests of the child test in a majority of cases.

This article focuses on the process through which long-standing legal rules for making custody determinations have been challenged and partially restructured. Of particular concern are two related steps in the process: the manifestation of the liberal ideology of equality in the custody context and the use of social science data both to bolster the trend toward an equality model and to resolve individual cases in the new degendered arena.

Custody questions are inherently moral, legal, and political questions. This article surveys some of the traditional concerns about proper social science methodology and the modern criticism of social science theories to conclude that value premises are inevitable incorporated into the research product. Because of assumptions about and idealization of the role of the nuclear family, much of the research fails to contribute anything to our understanding of parental roles at divorce.

Keywords: Degendered, parental roles, custody, divorce, feminism, nuclear family, traditional family, social science, maternal preference, equality, theory of difference