Accounting to Ourselves for Ourselves: An Analysis of Adjudication in the Resolution of Child Custody Disputes

Abstract

The adjudicatory process for resolving child custody disputes is out of synch with the way most functioning families operate. It is inherent in the adjudicatory process that judgment is passed upon the parties by a superordinate stranger-adjudicator. Each party to child custody adjudication approaches the ostensibly problem-solving court as a supplicant and an inferior, having to tacitly admit that (s)he cannot handle her/his own affairs. In the small percentage of child custody cases reaching impasse and adjudication, the legal process entails the creation and operation of a body of legal norms that has grown through legal opinions resolving individual disputes. Because only a small percentage of family law cases reach the appellate reporters, the law is slow in reacting to developing social norms. American family law responds to social developments sporadically, inconsistently, and often only when its failure to respond creates discrepancies between social norms and legal norms that are plainly unconscionable.

Adjudicatory systems are inherently unable to accommodate conflicts and collisions among legal norms. The law has become silent with respect to social or moral values of any kind other than those protecting and encouraging the independence and autonomy of individuals, the law fails to reflect the realities of most families, particularly of mothers with young children. In reaching and rationalizing outcomes, child custody courts focus - upon finding any given proposition of fact as either true or false; - choosing among competing or conflicting norms in a binary fashion (as if only the dominant norm were applicable; as if each disputant is generally either “right’ or “wrong’); - upon an act-oriented approach to determining what has happened, rather than a person- or relationship-oriented approach to what will happen in the reordered family; and - upon strict neutrality and objectivity.

In short, the child custody determination - a central process in the reordering of family relationships - is not typically characterized by norms that recognize the dissolving and reforming relationships in a family going through the upheaval of a child custody dispute. Nor does the process facilitate continued interdependence and accommodation in these relationships. To usurp from the reordering family the power to accommodate varying norms is to devalue the family because it is reordering.

This article proposes tempering or replacing the adjudicatory process in child custody disputes with a more graduated and accommodative negotiatory process - a process more adept at addressing the complexity of family relationships and at preserving, as much as possible, the prerogatives and autonomies of family life in the reordering family. Specifically, the Article proposes a process utilizing the primary caretaker presumption and an impasse procedure known as Final Offer Selection.

Keywords: Child Custody, Family Law, Domestic Relations, Divorce

JEL Classification: K19, K40