Child Custody Revisited

Abstract

I INTRODUCTION When Professors Katharine Bartlett and Elizabeth Scott proposed a symposium and accompanying issue of Law and Contemporary Problems organized around my article Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, (1) I was flattered, thrilled, and most of all surprised: flattered because of the extraordinarily generous ways they characterized the importance of the article to the development of family-law scholarship, thrilled because they suggested a number of leading family-law scholars had agreed to reflect on the article's impact and contemporary relevance, and surprised because my article was nearly forty years old. It was also with a tinge of trepidation that I approached the prospect of the symposium. For the first fifteen years of my academic career, my central scholarly concerns were children and the law broadly, and issues relating to divorce custody and the foster-care system in particular. (2) But in the last twenty years I have focused nearly exclusively on conflict resolution, negotiation, and alternative dispute resolution, not family law. I was only generally abreast of developments in custody law. I had given no thought to the continuing relevance, if any, of my article. Truth be told, I had not looked at, much less read, the article in more than twenty years. When my article appeared, Gerald Ford was President. International concerns focused on the Soviet Union and the Cold War. The median household income in the United States was $11,800, and the average cost of a new house was $39,000. (3) I wrote the article on a typewriter. There were no personal computers, or cell phones. There was no world-wide web. I wondered, Would the social, economic, political, technological, and legal changes since 1975 make my analysis seem strangely out-of-date? I have now reread my article in light of the fascinating contributions to this issue of Law and Contemporary Problems. I have asked myself, Are the article's two core themes--relating to the indeterminacy of the best-interests standard and differentiating child protection from private dispute resolution--still relevant? To extent have changes in social norms, technology, and legal doctrine made my analysis unresponsive to contemporary challenges custody law and policy? With profound gratitude to Professors Bartlett and Scott, I offer here my observations regarding these questions. II THE INDETERMINACY CLAIM The first, most fundamental claim in my article was that the best-interests standard was indeterminate. I exposed the indeterminacy of this custody standard by framing the judge's decision under the standard as a problem of rational choice between custodial alternatives in which the judge was being asked to choose the alternative that would maximize what is best a particular child. (4) Drawing on decision theory, a rational decisionmaker would need to (1) specify alternative outcomes and predict the probability that each outcome might occur, and (2) assign to each outcome a utility measure that integrated his values and allowed comparisons among alternative outcomes. (5) To do this the judge would need considerable information, predictive ability, and some source for the values to measure utility the child. (6) After framing the best-interests standard in this way, I exposed its indeterminacy with two basic arguments: First, [f]or most custody cases, existing psychological theories simply do not yield confident predictions of the [long-term] effects of alternative custody dispositions. (7) Second, even if accurate predictions were possible in more cases, our society today lacks any clear-cut consensus about the values to be used in determining is 'best' or 'least detrimental.' (8) None of the authors in this issue express any disagreement with either of these two basic assertions. With respect to the first of these indeterminacy arguments, I claimed, [P]resent-day knowledge about human behavior provides no basis the kind of individualized predictions required by the best-interests standard. …

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