The Uses of Social Science Data in Legal Policymaking: Custody Determinations at Divorce

Abstract

In this article, Professor Fineman and Ms. Opie discuss the contemporary debate concerning child custody policy, and critique the ways in which social science data are being used in the legislation of new rules in this area. Their analysis of various factors that have coalesced in this process includes a history of child custody rules, a discussion of recent challenges to the mother custody norm and an examination of the new father custody studies. A recent piece of legal scholarship is also reviewed to illustrate the many problems associated with the formation of the contours of this debate.Drawing upon concepts from critical, phenomenological, linguistic and feminist theories, the authors argue that current psychological, sociological, and legal research in this area focuses on fatherhood while devaluing motherhood and the nurturing ideal. They suggest that incorporating such perspectives into legislative policy will further disadvantage mothers within the context of child custody decision-making.

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