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

22 U.C. Davis L. Rev. 829 1988-1989

Emory Legal Studies Research Paper No. 12-206

37 Pages Posted: 4 Jun 2012 Last revised: 22 Jun 2012

Date Written: 1989


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.

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

Suggested Citation

Fineman, Martha Albertson, The Politics of Custody and the Transformation of American Custody Decision Making (1989). 22 U.C. Davis L. Rev. 829 1988-1989, Emory Legal Studies Research Paper No. 12-206, Available at SSRN:

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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