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Introduction In contemporary American culture the traditional nuclear family, forged in the late eighteenth and early nineteenth centuries, has been eroding, but a deep nostalgia for the enduring, solidary bonds that seem once to have connected spouses to each other, and children to their parents, persists. In the service of that nostalgia, society clings with particular force to images of loving, vulnerable children, ideally separated from the harsh reality of adult life by virtue of the innocence of childhood. However, as the familial context within which society is thought once to have actualized those images disappears, and society and the law face the plight of actual children, the traditional images seem less and less compelling. Alternative images are proposed, but are approved with ambivalence(1) because they contrast with familiar assumptions and social expectations about children and childhood. Traditional images are sometimes manipulated, in the hope that, so reconstructed, familiar understandings of children and childhood can be preserved, and children's best interests can be safeguarded. As often as not the result is confusion and contradiction. The law, reflecting the larger society, long presumed the autonomy of the family unit, but not of its interconnected members, and certainly not of women and children within families. By the 1960s, however, the law, responding to astonishing shifts in the scope and meaning of family, began to recognize adult family members as autonomous individuals vis-a-vis one another, and to grant them wide freedom to design their own relationships, from beginning to end.(2) Within a decade, the legal structures that had sustained and directed the vision of family constructed during the preceding century and a half were being dismantled. Regrets were expressed but were widely balanced by appreciation for startling new freedoms. With regard to children, especially children within families, the law, again reflecting the society, has moved more slowly and with more confusion in remodeling established understandings. As a result, a core contradiction defines much of contemporary family law. Children -- and, even more, childhood -- continue to be understood in traditional terms, but the legal and familial structures within which those terms once made sense have largely disappeared. Traditional understandings of childhood, constructed during the Enlightenment, and firmly institutionalized in the early years of the Industrial Revolution, identified childhood as a stage of innocent purity and largely untrammeled enjoyment completely at odds with the dictates of the marketplace.(3) Children, because vulnerable both to the demands of the world outside the domestic order and to their own immaturity, were to be treasured and protected within loving, nurturing family settings.(4) Carl Degler, who described the differentiation of children from adults as the most significant shift in the development of the nineteenth-century family, explained: [C]hildhood itself was perceived as it is today, as a period of life not only worth recognizing and cherishing but extending. Moreover, simply because children were being seen for the first time as special, the family's reason for being, its justification as it were, was increasingly related to the proper rearing of children.(5) That view of children was clearly reflected in the law by the early decades of the nineteenth century in the form of the best-interest standard, which became, and has remained, the dominant rule for adjudicating family law cases involving questions of custody and visitation.(6) Thus, for almost two centuries society and the law depended on a uniform rhetoric about the sacred prerogatives of childhood, and about the centrality of children to understandings of family.(7) Traditionalists and modernists alike have joined, and in large part continue to join, in that rhetoric, which considers safeguarding children and preserving the innocence of childhood to be feasible and morally privileged tasks. …
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