Learning from the Process of Decision: The Parenting Plan
33 Pages Posted: 8 Sep 2010
Date Written: February 1, 2001
In the past twenty-five years, we have learned much about the legal system of decision concerning parental relationships with children. At the same time, behavioral scientists have learned much about the process of decision and about the problem of cooperation in particular.
Chapter 2 of the ALI Principles – the principles concerning the “Allocation of Custodial and Decisionmaking Responsibilities for Children” – is the result of careful examination of the custody laws of the states, past and present, as well as scholarly studies and proposals from the United States and abroad. The Reporter has taken great care in setting objectives for the chapter, which are designed to avoid polarizing debate and yet promise to right some of the most ineffective or counterproductive aspects of child custody law. The objectives break down into three essential categories: (1) improving determinacy and predictability in the law of custodial and decisionmaking responsibility; (2) respecting and enhancing family autonomy by maximizing the effects of choices made by family members, not by the court or the state; and (3) codifying and institutionalizing fairness concerning race, ethnicity, sex, religion, sexual orientation, sexual conduct, economic circumstances, and functional relationships.
Chapter 2 of the ALI Principles of the Law of Family Dissolution, with its emphasis on the parenting plan, has moved boldly away from much of what is problematic or counterproductive to the process of decision in parenting. It embraces much of what we have learned (and are learning) works for families and children. And it has laid the groundwork for a move away from child custody adjudication – a process that has proven largely ineffective and unresponsive to the needs of “dissolving” families.
This article, written for and presented at the Symposium on the ALI Family Dissolution Principles, held at Brigham Young University’s J. Reuben Clark Law School on February 1, 2001, explores the concept of the parenting plan, as set forth in the ALI Principles, from the perspective of the study of decisionmaking strategies in the discipline of behavioral science. Taking the parenting plan as the negotiatory centerpiece in the evolution of child custody dispute resolution in the United States, the article considers it in the light of Game Theory – specifically the work of Professor Robert Axelrod about how, in situations where each individual has an incentive to be selfish, cooperation develops.
Keywords: parenting plan, child custody
JEL Classification: K19, J12
Suggested Citation: Suggested Citation