Vol. 36, No. 1, Spring 2002
Custody Law and Practice Symposium

Paul Kurtz, Introduction to Custody Law and Practice Symposium, 36 FAM. L.Q. 1 (2002).
This piece provides an overview of the articles included in the spring 2002 issue and a brief background of Professor Robert J. Levy of the University of Minnesota Law School.

Katherine T. Bartlett, Preference, Presumption, Predisposition, and Common Sense: From Traditional Custody Doctrines to the American Law Institute’s Family Dissolution Project, 36 FAM. L.Q. 11 (2002).
Throughout most of the nation’s history, custody cases had fairly predictable results. However, predictability does not make a rule sound, and a giant leap forward occurred when the Uniform Marriage and Divorce Act abandoned sex-based presumptions and preferences in favor of the best-interests test. However, is the best-interests test the best approach to settling custody disputes when a family breaks down? The central goal of the American Law Institute’s Family Dissolution Project was to develop standards that provided more certain results when families broke up. This article evaluates the American Law Institute’s principles from different perspectives.

Herma Hill Kay, No-Fault Divorce and Child Custody: Chilling out the Gender Wars, 36 FAM. L.Q. 27 (2002).
In the 1960s the typical middle-class U.S. family consisted of a married woman at home, taking care of children, while her husband worked. By the twenty-first century, the picture had almost completely changed. Since the 1980s, prevailing family doctrines have placed support obligations on husbands and wives, and maternal preference in child custody has given way to a generalized best-interests-of-the-child standard. To advocates of preserving priority for mothers with respect to child custody, this is a negative movement. This article ponders whether no-fault divorce is responsible for the gender wars over child custody.

Ira Mark Ellman, Thinking about Custody and Support in Ambiguous-Father Families, 36 FAM. L.Q. 49 (2002).
Whenever a married woman bore a child, social conventions and legal presumptions traditionally treated her husband as the child’s father. During the final quarter of the twentieth century, however, things became more complex: There were substantial increases in the number of children born out of wedlock and in the drive to collect child support from absent fathers. This article provides an illustrative discussion of common cases in which discrepancies between biological and social paternity can arise.

Gary Skoloff & Robert J. Levy, Custody Doctrines and Custody Practice: A Divorce Practitioner’s View, 36 FAM. L.Q. 79 (2002).
The American Law Institute implemented a project to devise doctrines on divorce-custody law that would simultaneously conform law to practice and give clearer guidance to trial judges. This article observes the influence lawyers exercise over their divorce clients.

Barbara Bennett Woodhouse, Talking about Children’s Rights in Judicial Custody and Visitation Decision-Making, 36 FAM. L.Q. 105 (2002).
Legal and Mental Health Perspectives on Child Custody Law: A Deskbook for Judges provides a major service to judges and, consequently, to the families and children who appear before judges. The Deskbook explains the pitfalls of the decision process and emphasizes the difficulty of drawing reliable conclusions in multidimensional cases. This article argues that family law and the Deskbook would benefit from more open and confident discussions about children’s rights.

Daniel W. Shuman, The Role of Mental Health Experts in Custody Decisions: Science, Psychological Tests, and Clinical Judgment, 36 FAM. L.Q. 135 (2002).
In the second half of the twentieth century, two important legal movements occurred that involved the standard for judicial determination of child custody arrangements and the standard for judicial determination of the admissibility of expert testimony. The transformation of the standard for child custody litigation to a psychological best-interests-of-the-child test has led to mental health professionals’ testimony becoming a common feature of legal decision-making on custodial issues. This article examines the controversial evolution of expert testimony into a common and virtually unlimited feature of child custody litigation.

John DeWitt Gregory, Family Privacy and the Custody and Visitation Rights of Adult Outsiders, 36 FAM. L.Q. 163 (2002).
In the relatively few years since the appearance of the Deskbook for Judges, there have been significant developments with respect to the legal treatment of claims by legal strangers, particularly grandparents and other third parties. This article examines and comments on some of the legal issues relating to third-party visitation, in which claims by legal strangers of the right to associate with other people’s children are invariably based on assertions of children’s best interests.

Brian H. Bix, Parental Rights for All Parents: A Comment on Gregory, 36 FAM. L.Q. 189 (2002).
Professor Gregory’s article focuses on how statutory law and court decisions have begun to allow standing for non-parents to seek visitation, in particular, grandparents and same-sex partners. This comment suggests that if there are good moral or policy reasons for protecting the rights and prerogatives of parents, then those reasons should also extend to all parents, including those raising children within long-term same-sex relationships.

Judith T. Younger, Post-Divorce Visitation for Infants and Young Children – The Myths and the Psychological Unknowns, 36 FAM. L.Q. 195 (2002).
Courts have only two legal principles to guide them in resolving visitation disputes: Their decisions must be in the best interests of children and must give effect to the legal rights of non-custodial parents to form or maintain relationships with their children. The most difficult visitation cases are those that involve infants and young children because ages one through three are considered life-shaping. As children develop, divorce, custody, and visitation have different meanings. Since small children lack communication skills, those meanings have to be inferred. This article examines the ways in which courts attempt to determine what’s best for young children.

Martha Albert Fineman, Domestic Violence, Custody, and Visitation, 36 FAM. L.Q. 211 (2002).
Violence against women within a domestic context is rampant, and divorce is often the occasion for domestic abuse. Women experience a greater risk of violence at the hands of their intimate partners during or after separation, making visitation and custody arrangements particularly hazardous for women who are battered. This article notes that spousal violence is an appropriate factor for judicial consideration in custody and visitation cases and suggests what courts can do to avoid perpetuating violent situations via their custody decisions.

Publication Date: September 2002