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Shared Parenthood in Divorce: The Parental Covenant and Custody Law*

Published online by Cambridge University Press:  03 February 2016

William Johnson Everett
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Extract

Ethical discussions of divorce have usually taken up the question of whether or when two spouses may divorce and remarry. They have focussed on the dissolution of the marital bond. Almost no attention has been given to the ethical issues involved in negotiating a divorce or maintaining the parental bond in divorce.

Emerging efforts to maintain parental bonds in divorce rest on many diverse considerations. Let us begin with the social changes demanding this concern and then move to some religious, ethical, and legal responses to this challenge.

Type
Articles
Information
Journal of Law and Religion , Volume 2 , Issue 1 , 1984 , pp. 85 - 99
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1984

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Footnotes

*

This article is a revision of a paper presented at the annual meeting of the Society of Christian Ethics in Philadelphia on January 21, 1984.

References

1. Curran, Charles E. presents a progressive Catholic view in The Gospel and Culture: Christian Marriage and Divorce Today, Ministering to the Divorced Catholic 15–36 (Young, J. ed. 1979)Google Scholar. See also Divorce and Remarriage in the Catholic Church (Wrenn, L. ed. 1973)Google Scholar.

Protestants have tended to look on divorce as a tragic failure rather than a sin. Karl Barth presents a Protestant version of annulment theory in Church Dogmatics, III/4 at 211 (Bromiley, G. and Torrance, T. eds. 1961)Google Scholar. Elizabeth Achtemeier puts the matter in a more contemporary Protestant form in The Committed Marriage 109–31 (1976)Google Scholar.

Ethically sensitive treatments of the divorce process can be found in Young, J., Growing Through Divorce (1979)Google Scholar and Whitehead, J. & Whitehead, E., Marrying Well: Possibilities in Christian Marriage Today 347–70 (1981)Google Scholar.

Recent ethical attention has been mostly philosophical. See especially Blustein, J., Parents and Children: The Ethics of the Family (1982)Google Scholar for an historical and constructive argument. Relevant articles are assembled in Whose Child? Children's Rights, Parental Authority, and State Power (Aiken, W. & LaFollette, H. eds. 1980)Google Scholar, and Having Children: Philosophical and Legal Reflections on Parenthood (O'Neill, O. & Ruddick, W. eds. 1979)Google Scholar. Stanley Hauerwas has stimulated theological discussion of the procreative fidelity of the family in A Community of Character: Toward a Constructive Christian Ethic 155–95 (1981)Google Scholar.

2. For recent statistics see Spanier, and Glick, , Marital Instability in the United States: Some Correlates and Recent Changes, 30 Family Relations 329 (1981)CrossRefGoogle Scholar. Divorce and Separation: Context, Causes, and Consequences (Levinger, G. & Moles, O. eds. 1979)Google Scholar offers the best coverage of the social-psychological aspects.

3. Cherlin, , Remarriage as an Incomplete Institution, 84 Am. J. Soc 634 (1978) claims that lack of adequate role language undermines second marriagesCrossRefGoogle Scholar.

4. For overviews see Eisler, R., Dissolution: No-Fault Divorce, Marriage, and the Future of Women (1977)Google Scholar and Freed, and Foster, , Divorce in the Fifty States: An Overview as of 1978, 13 Fam. L. 105 (1979)Google Scholar.

5. Degler, Carl N. sets forth the two-spheres history in At Odds: Women and the Family in America from the Revolution to the Present 249–78 (1980)Google Scholar. Mel Morgenbesser and Nadine Nehls provide some history of custody determinations in Joint Custody: An Alternative for Divorcing Families 5–26 (1981)Google Scholar.

6. Cal. Civil Code §§ 4600, 4600.5; Fla. Stat. Ann. § 61.13(2)(b); La. Civil Code Ann., art. 146, 147. One of the earliest appeals for a joint custody law appeared in 1964 from a psychologist. Kubie, L., Provisions for the Care of Children of Divorced Parents: A New Legal Instrument in The Rights of Children: Emergent Concepts in Law and Society 212–17 (Wilkerson, A. ed. 1973)Google Scholar. For comprehensive updates see Folberg, and Graham, , Joint Custody of Children Following Divorce, 12 U.C.D. L. Rev. 523 (1979)Google Scholar; Gouge, , Joint Custody: A Revolution in Child Custody Law?, 20 Washburn L.J. 326 (1981)Google Scholar; and Miller, Joint Custody, 13 Fam. L.Q. 345 (1979)Google Scholar.

By 1983 The National Conference of State Legislatures could report that twenty-nine states had provisions for joint custody, thirteen with preference, six if one parent requests it, and eight if both agree. “50 State Overview of Joint Custody Statutes as of Legislative Year 1982,” Dec. 15, 1983. For the most recent statutory overview see Joint Custody and Shared Parenting (Folberg, J. ed. 1984)Google Scholar.

7. The central psychological study is by Wallerstein, J. & Kelly, J., Surviving the Breakup: How Children and Parents Cope with Divorce (1980)Google Scholar. See also Hess, and Camara, , Post-Divorce Family Relationships as Mediating Factors in the Consequences of Divorce for Children, 35 J. Soc. Issues 79 (1979)CrossRefGoogle Scholar. See also Ahrons, , Joint Custody Arrangements in the Post-divorce Family, 3 J. Divorce 189 (1980)CrossRefGoogle Scholar.

For specific focus on fathers and children see Hamilton, M., Father's Influence on Children (1977)Google Scholar; Winkler, I. & Winkler, W., Fathers and Custody (1977)Google Scholar; and Jacobs, , Effect of Divorcè on Fathers: A Review of the Literature, 39 Am. J. Soc. 1235 (1982)Google Scholar. Miller, John W. provides a theological focus in The Contemporary Fathering Crisis: The Bible and Research Psychology, Conrad Grebel Rev. 21 (1983)Google Scholar.

8. See Morgenbesser and Nehls, supra note 5, at 68.

9. Second Thoughts on Joint Custody: Analysis of Legislation and Its Impact for Women and Children, 12 Golden Gate 539 (1982)Google Scholar.

For a more measured research-oriented review of problems in joint custody see Steinman, , Joint Custody: What We Know, What We Have Yet to Learn, and the Judicial and Legislative Implications, 16 U.C.D. L. Rev. 739 (1983)Google Scholar. For a rejoinder see Kelly, , Further Observations on Joint Custody, 16 U.C.D. L. Rev. 762 (1983)Google Scholar.

10. The full version of this argument can be found in my forthcoming volume, Blessed be the Bond: A Theological Engagement with Marriage and Family (1985).

11. The responsibility of public institutions for parenting, with a Puritan model in the background, is argued extensively in Grubb, W. & Lazerson, M., Broken Promises: How Americans Fail Their Children (1982)Google Scholar. For a detailed British proposal see Rapoport, R. & Rapoport, R., Fathers, Mothers, and Society: Towards New Alliances (1977)Google Scholar.

12. Aside from Broken Promises, supra note 11, see Coyne, Who Will Speak for the Child? in Wilkerson, ed., supra note 6, at 193. For the tension between natural rights and best interest, see Levine, Child Custody: Iowa Corn and the Avant Garde, in Wilkerson, ed., supra note 6, at 232. Children's right to the parental bond combines both the “protective” and the “autonomy” rights described by Wald, , Children's Rights: Framework for Analysis, 12 U.C.D. L. Rev. 255 (1979)Google Scholar, because it seeks protection for the bonds which can nurture eventual autonomy.

“Best interest” is the controlling criterion for custody determinations in the Uniform Marriage and Divorce Act § 402 (1970)Google Scholar and in the United Nations Declaration on the Rights of the Child, Sec. 2 and 7, as discussed in O'Neill and Ruddick, supra note 1, at 111.

13. See Blustein, supra note 1, at 80.

14. Goldstein, J., Freud, A., & Solnit, A., Beyond the Best Interests of the Child 12, 38 (1973)Google Scholar. See Wallerstein and Kelly, supra note 7, at 311, for a scientific rebuttal of this position. For a review of the diverse legal and limited judicial responses to Goldstein see Crouch, , An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child, 13 Fam. L.Q. 49 (1979)Google Scholar.

15. For the collapse of the “tender years” doctrine see Roth, , The Tender Years Presumption in Child Custody Disputes, 15 J. Fam. L. 423 (1976–1977)Google Scholar; Jones, , The Tender Years Doctrine: Survey and Analysis, 16 J. Fam. L. 695 (1977–1978)Google Scholar; Schall v. Schall, 251 Pa. Super. Ct. 262, 380 A.2d 478 (1977); and Johnson v. Johnson, 564 P.2d 71 (Alaska 1977).

16. See Wallerstein and Kelly as well as M. Hamilton, supra note 7, and various articles in Children of Divorce, 35 J. Soc. Issues (1979)Google Scholar.

17. For an argument in the liberal tradition see Canacakos, , Joint Custody as a Fundamental Right, 23 Ariz. L. Rev. 785 (1981)Google Scholar. For some rulings in this direction see Santosky v. Kramer, 102 S. Ct. 1388 (1982) and Beck v. Beck, 432 A.2d 63 (N.J. 1981). The argument for termination only on the basis of abuse is argued in Termination of Parental Rights—Suggested Reforms and Responses, 16 J. Fam. L. 239 (1977–1978)Google Scholar. For a general argument for constitutional protection of joint custody see Bratt, , Joint Custody, 67 KY. L.J. 271 (1978–1979)Google Scholar.

18. For an in-depth study of the problem see Cassetty, J., Child Support and Public Policy (1978)Google Scholar. In a forthcoming sociological study, A Comparative Study of Shared Parenting v. Sole Custody, Howard Irving, University of Toronto, reports 100% support compliance by joint custodial parents.

19. Practical advice is available from Ware, C., Sharing Parenthood After Divorce: An Enlightened Custody Guide for Mothers, Fathers and Kids (1982)Google Scholar.

20. Blustein, supra note 1, at 158, tries to find an appropriate balance for these considerations. John Rawls' work shapes a good deal of his argument, in which he seeks to give priority to parent duties over parental rights. The duties, in turn, revolve around pursuit of the child's interest in autonomy.

21. Shelton v. Tucker, 364 U.S. 479, 488 (1960)Google Scholar: “[The government's] purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be … the least drastic means for achieving the same basic purpose.”