Dominant Discourse Professional Language and Legal Change

Abstract

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.

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