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Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship 12-1985 Taking Children Seriously: Promoting Cooperative Custody After Divorce Andrew Schepard Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Andrew Schepard, Taking Children Seriously: Promoting Cooperative Custody After Divorce, 64 Tex. L. Rev. 687 (1985) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/749 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Taking Children Seriously: Promoting Cooperative Custody After Divorce Andrew Schepard* Table of Contents I. Substantive Custody Standards: Where We Are and How We Got There ........................................... 693 A. The Functions of the Substantive Standards ........... 693 B. A Brief HistoricalOverview ........................... 695 C. Joint Custody ........................................ 701 II. Substantive Custody Rules: Empirical Evidence, Moral Fairness, and Decision Making Under Uncertainty ........ 703 A. The Empirical Evidence on the Best Interests of the Child ................................................ 703 1. The Effects of Divorce on Children ................ 703 (a) Emotional crisis and decreasedparental competence .................................. 703 (b) Financialsupport of children ................. 706 (c) School performance .......................... 708 (d) The child's need for speedy stability ........... 709 2. Sole Versus Joint Custody ......................... 709 (a) "Voluntary" and "involuntary"joint custody .. 710 (b) Parentalconflict and joint custody ............ 716 * Associate Professor of Law, Columbia University School of Law. This Article would not have been written without a lot of help from my friends. The former Dean of Columbia Law School, Albert J. Rosenthal, arranged for a semester's research leave from a hectic clinical teaching schedule and for a summer research grant; my colleagues Vivian Berger, Richard Briffault, Michael Young, Jerry Lynch, Paula Powers, Paul Nassar, Bruce Ackerman, and Peter Strauss provided valuable comments. My research assistant, Karen Leslie Avery responded completely and with good humor to my every request for more data. Special thanks are due Linda Silberman with whom I worked as consultants for the New York State Law Revision Commission. With the assistance of many Columbia students, we jointly drafted a report and statute embodying the procedural philosophy of this Article. Recommendations of the Law Revision Commission to the 1985 Legislature: Relating to the Child Custody Decision-Making Process, 19 COLUM. J.L. & Soc. PROBS. 105 (1985) [hereinafter cited as Recommendations]. This Article draws heavily on our collective work and thinking, though I take responsibility for the con- clusions in it. The portion of this Article describing the results of custody mediation programs, see infra text accompanying notes 313-23, is a revision of a draft Linda did for the Law Revision Com- mission Report, which I have modified with Linda's permission for purposes of this Article. Finally, special thanks and affection go to my wife, Debra, an equal partner in the joys and sorrows of writing this Article, and David and Eric, the children who inspire my work. 687 Texas Law Review Vol. 64:687, 1985 (c) The child's responses to joint custody .......... 719 B. Dealing with Empirical Uncertainty: Deregulation and Regulation of Judicial and ParentalCustody Decisions. 720 1. Deregulation ..................................... 721 (a) Judicialderegulation ......................... 721 (b) Parentalderegulation ........................ 722 2. Regulation by Substantive Custody Presumptions... 723 (a) The "innocent spouse" preference ............. 723 (b) The primary caretakerpreference ............. 724 (i) The child's best interests ................. 726 (ii) Emotionaljustice to parents and the primary caretakerpreference ............ 728 (iii) Social and economic justice between spouses ................................. 731 (iv) The need for certainty to reduce litigation ........................................ 732 C. Summing Up ........................................ 734 III. Adversary Procedure and Postdivorce Parental Cooperation ............................................. 735 A. The Custody Trial ................................... 736 B. Negotiations in the Sole Custody, Adversary Procedure System .............................................. 739 IV. Reform Proposals Within the Sole Custody-Adversary Procedure System ........................................ 743 A. "Child Protective" Divorce Laws ...................... 743 B. Lawyers for Children ................................. 746 C. Neutral Mental Health Experts ....................... 750 V. The Cooperative Custody System ......................... 752 A. The Single-Judge Calendar-Management System ....... 754 B. M ediation ........................................... 756 1. Opening Civil Communication .................... 757 2. Providing the Parents with Information About the Child's Needs and Reactions to the Divorce Crisis .. 757 3. Identifying Common Interests and Concerns in the Child's Welfare and EncouragingJoint Problem- Solving .......................................... 758 4. Reducing Fear ................................... 758 5. Identifying and Tempering Emotional and UnreasonablePositions ........................... 758 6. Eliminating the Perception that Compromise Means Weakness ........................................ 758 688 Cooperative Custody 7. NarrowingAreas of Differences ................... 758 8. Referrals to Community Resources ................ 759 C. Neutral Evaluation ................................... 759 D. Custody Trials ....................................... 761 E. The Substantive Law Standardsfor Contested Cases ... 762 F. Postdecree Remedies for Parental Violations ........... 763 G. Financing the System ................................ 764 H. The Effects of the Cooperative Custody System on PretrialParental Negotiations and Settlement ......... 766 1. Mediation EncouragesAgreements ................ 768 2. Mediation Reduces Relitigation ................... 769 3. Mediation Achieves Some Cost and Time Savings .. 769 4. Mediation Improves the Attitude of Parents ........ 769 5. Mediation Facilitates Custody Arrangements that Give Children Meaningful Relationships with Both Parents .......................................... 769 VI. The Cooperative Custody System: Commentary ........... 770 A. The Role of the State ................................ 770 B. State Involvement in Uncontested Parental Custody Settlem ents .......................................... 772 C. Serving the Child's Sense of Time ..................... 773 D. Separation of Custody and Child Supportfrom Other ParentalDisputes .................................... 775 E. Mediation: "Rights" of Parents and Inequality of BargainingPower Between Men and Women .......... 776 F. Custody Evaluation as a Backup System ............... 779 VII. Parental Autonomy and the Cooperative Custody System: The Problem of Parental Relocation ...................... 780 Introduction Each year more than one million children experience the divorce of their parents.' In 1981, the last year for which complete figures are available, about five million children lived with a divorced parent-nine percent of all children under age eighteen in the United States.2 1. After a prolonged period of rising dramatically, the divorce rate has recently stabilized at the rate of about 5.0 per 1,000 population. Approximately 55% of all divorces involve children. National Center for Health Statistics, Advance Report of Final Divorce Statistics 1981, MONTHLY VITAL STATISTICS REP., Jan. 17, 1984, at 1-2. See generally Spanier & Glick, MaritalInstability in the United States: Some Correlatesand Recent Changes, 31 FAM. REL. 329 (1981) (highlighting the demographic consequences of marital instability for children and families). 2. National Center for Health Statistics, supra note 1, at 1; see also BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, CURRENT POPULATION REPORTS, SERIES P-23, No. 84, DIVORCE, 689 Texas Law Review Vol. 64:687, 1985 All of these children contract what may be thought of as a disease of childhood-a disease usually without physical symptoms, but posing a serious threat to a child's emotional, financial, and educational well-be- ing. Most of the time its effects are short-term and containable. Some- times the child who contracts it emerges emotionally stronger as a result. Sometimes, however, the disease has complex, long-term ramifications from which the child never recovers. The attending physician for the child affected by this disease is not a medical doctor but the system of custody law and procedure. The most important goal of divorce-related child custody law is to act in the best interests of the child, the most vulnerable member of the dissolving family. The most important princi- ple of medical treatment is that a doctor should do the patient no harm. Judged by either legal or medical standards the current legal system fails to meet its obligations to the child. A divorce-related
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