Speak to an experienced Draper Utah divorce lawyer if you need sound legal advice on divorce. We can help you with temporary orders, child support, child custody, alimony, property division, mediation, negotiations, real estate, and much much more. Divorce law has come a long way since the time the first settlors setup their colonies in the United States.
On May 3, 1930, a large advertisement for Robert Z. Leonard’s film The Divorcee asked the readers of the Washington Post, “Has Love a Chance in Today’s Hot Pursuit of Pleasure?” Loosely based on Ursula Parrott’s 1929 novel Ex-Wife, the film starred Norma Shearer, who won an Oscar for her portrayal of the title character. From the opening scene in which Jerry, played by Shearer, boldly insists that she and Ted (Chester Morris) get married and “make a go of it” as equals, the filmmakers signaled that Shearer’s character was a quintessential “new woman,” committed to a form of female equality and independence defined by male standards. Jerry’s determination on this point is so strong, in fact, that upon discovering Ted’s affair with another woman three years into their marriage, she promptly retaliates by having an extramarital sexual encounter of her own. Ted, after learning of her infidelity, demands a divorce. Jerry plainly has overestimated the extent of her equality—a sentiment echoed in the advertisement when it teased: “Her sin was no greater than his—but she was a woman!”
Once again single, Jerry vows to enjoy her freedom and to keep her bed open to all men except for her ex-husband. She quickly, however, becomes dissatisfied and physically drained by her new life of sexual adventure. Escape presents itself in the form of a married friend named Paul (Conrad Nagel), who proposes to divorce his wife Dorothy (Judith Wood) so that he and Jerry can begin a new life together. Indeed, Dorothy is Jerry’s counterpoint throughout the film. Whereas Jerry is beautiful, Dorothy has been tragically disfigured in a car accident on the night of Jerry and Ted’s engagement. Jerry and Ted married for love, but Paul, who was heavily intoxicated when the accident occurred, married Dorothy only out of guilt. While Jerry accedes to Ted’s insistence of a divorce, Dorothy refuses to concede marital defeat and will not give Paul the divorce he so desperately desires. Comparing herself to Dorothy, Jerry realizes the many ways that she has wronged her own union with Ted. Jerry thus arrives, as one reviewer explained, at “the realization that her own marriage has been a failure because she has not had the same determination [as Dorothy] to see it through.” She resolves to find Ted, and the two have an emotional reunion in which they promise to make their new marriage a success.
By the conclusion of The Divorcée, Jerry—and by extension, the audience—have learned several lessons. First, Jerry’s desire for marital equality is foolish and unrealistic. The film does not criticize a sex-based double standard; rather, its message is that in trying to emulate men, women can lose sight of what is truly important: love and marriage. The pitiful Dorothy is the true female center of the film—she is not beautiful, but she appreciates the value of being married and is willing to fight for Paul. Moreover, the film says, sexual freedom does not ensure happiness, especially for women. Prior to their mutual transgressions, Jerry and Ted plainly enjoy a fulfilling sexual relationship. Jerry’s life as a wanton divorcée, however, is unsatisfying, and only a chance encounter with Paul prevents her from becoming a hardened seductress. Finally, while divorce is sometimes a necessity, it is also frequently the result of easily avoided misunderstandings. Only in reunification—a theme that understandably became a popular Hollywood ending—can Jerry and Ted rediscover their former happiness and lead constructive lives.
The Divorcée quickly became one of the “stand-out hits of the early summer season” of 1930, and popular demand extended its run throughout the nation. The media’s descriptions of the film—press coverage alternately described it as “a chapter out of modern life,” “a Metro-Goldwyn-Mayer production dealing with a great social problem,” and “the most sophisticated treatment of the question of divorce”—highlighted its varied appeal to audiences. By 1930 divorce had indeed become a reality of everyday American life. At the same time, however, many Americans were deeply anxious about what the escalating divorce rate meant for the family, women, and the very future of the nation. Such fears were fanned by an emergent group of experts who spent the first several decades of the twentieth century identifying a “crisis” in American marriage. These self-appointed experts, some from within the academy and some with little or no formal training in sociology or related fields, came from different parts of the political and ideological spectrum. They agreed, however, that marriage (particularly for the white middle class) was in a period of crucial transition and that married couples could not handle this transition effectively on their own.
The general belief that marriage was in trouble was hardly new. Social critics and clergyman, in fact, had been decrying a “marriage problem” for most of the nation’s history. But these early critics had focused their efforts on convincing the American public of the indissolubility of the marital union and, if this former effort failed, of the need for uniform divorce laws in order to prevent most divorces. By the 1920s, however, this debate had grown increasingly stale and the arguments ineffective. The ostracism that had once accompanied the decision to divorce had subsided, and the voices of experts began to supplement, and in many cases replace, those of religious authorities in the national conversation about marriage in the United States.
As the nineteenth-century understanding of marriage as a duty faded, experts worked to convince Americans to take an active interest in the health of their marriages. They focused much of their attention on women, the traditional guardians of the home and the individuals deemed primarily responsible for the continuing changes in family life. Experts believed that if marriage was going to be a “companionate” venture—a relationship based on love and satisfying sexual relations—divorce was an important safety valve for husbands and wives who were trapped in loveless unions. They hoped, however, that by studying marriage in an objective manner, they could develop strategies that would slow the rising divorce rate and, more important, improve the general quality of American marriages. To this end, experts launched research studies intended to quantify marital success and taught marriage courses at universities. Some even began to experiment with a European technique known as “marriage counseling,” anticipating that they could prevent both ill-advised unions and unnecessary marital breakups. These efforts, in turn, laid the groundwork for a new understanding of what it meant to be married in the United States.
The nineteenth-century idealization of married, romantic love was a key ideological origin of this transition. Stereotypes of Victorian prudery aside, many American men and women—especially those from more privileged economic backgrounds—clearly expected to have intimate, loving relationships with their chosen mates. During courtship, they exchanged impassioned letters and expressed hopes that their fervent feelings would not subside after marriage. Once married, they expected to place their obligations to one another and to their growing families above those to their extended families and their civic responsibilities. Nineteenth-century Americans, therefore, gradually began to view marriage as a central life experience from which they could derive happiness and forge satisfying personal bonds. This ideal, of course, was often difficult to achieve. The Victorian belief in the innate differences between men and women, in particular, impeded the full realization of marital intimacy and romance. Many husbands and wives, in turn, struggled to share common experiences and interests with their spouses.
Nineteenth-century marriage advisers (primarily ministers and physicians) nevertheless regarded this new emphasis on love with a sense of trepidation. One root of their concern was the fact that many nineteenth-century Americans believed love to be an uncontrollable emotion. While they considered it to be a prerequisite for marriage, they did not necessarily believe that all love was eternal. If marital love was lost, no prescribed action could recapture the feeling. Critics, therefore, tried to inject a more practical view of marriage into discussions of the institution. They argued that love was a choice and that young married couples could take concrete steps to ensure that their unions remained happy. In print, advisers reminded their readers that if these efforts failed, their marriage vows remained binding. It was desirable, in other words, to be content—rather than miserable— while fulfilling ones’ duties.
When nineteenth-century marriage advisers pointedly rejected the possibility of divorce, however, they betrayed a fear that not all Americans understood the sanctity of their marriage vows. This concern was not necessarily misplaced. Divorce, in a very limited form, had been available in the United States as early as the colonial era and spread in the years following the American Revolution. No sooner, it seemed, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. While the two acts—dissolution of empire and dissolution of marriage— existed on vastly different scales, the language used by the patriots and lawmakers to justify both was strikingly similar. Furthermore, the legitimization of divorce beyond the very strict rules of English common law helped the American legal system to sever its dependence on the English model. The theoretical legitimization of divorce as a means of ending a “tyrannical” (or sexually promiscuous) union, in other words, was ingrained in a distinctly American legal system from its onset.
The mere legality of divorce, however, did not ensure that divorce was widely available or publicly condoned after the nation’s founding. Until well into the twentieth century, couples could not divorce legally by mutual consent. While divorce laws varied widely from state to state, “fault” divorce always required that one spouse prove that the other was guilty of adultery, desertion, or some other serious failing. Until the mid-nineteenth century, an aggrieved spouse in many states had to petition his or her state legislature in the hopes of obtaining a divorce decree. Only as the number of petitions proliferated did legislators begin to move divorce cases into the courts.
The nation’s slowly rising divorce rate went largely unnoticed until the 1850s, when it became a rallying point for social critics who saw the rate as irrefutable evidence of a creeping moral decay in American life. In the 1870s and 1880s, many state legislatures made their divorce laws more stringent in (unsuccessful) attempts to decrease the number of couples eligible for divorce. Their efforts became even more urgent once a Department of Labor study in the late 1880s confirmed that the United States led the world in divorce. Interestingly, the conservative opposition to divorce rarely called for its prohibition. The potential for chaos if couples resorted to extralegal means to end their marital unions, paired with the laws’ origins in the Revolution, ensured that calls for an outright ban were muted. Plus, conservatives did not have a ready alternative to divorce for unions in which spouses flouted moral convention by committing adultery or violently assaulting their partners. The common trope of the victimized wife seeking a divorce as a last resort was too powerful an image for divorce conservatives to assail. Instead, they fought unsuccessfully for the passage of a federal divorce law that would supersede the lax laws of so-called divorce havens such as Indiana, South Dakota, and, later, Nevada.
Some men and women in the nineteenth century did support relaxed divorce laws, but their views could hardly be classified as prodivorce. Several women’s rights advocates, notably Elizabeth Cady Stanton, were in favor of divorce because it gave women a modicum of control in the face of an otherwise patriarchal institution. This stance proved divisive, however, as many other activists believed that divorce hurt women by leaving them without financial support. Other divorce supporters asserted that the availability of divorce allowed for better marriages. They pleaded in its favor, therefore, not because the availability of divorce subverted existing marriage norms, but rather because its accessibility augmented the value of marriage to American society. Their primary argument was that since the marital union was perfectible, any unions that failed to reach this high standard should be dissolved, leaving the divorced couple to pursue perfection with better-suited mates. This camp held that, at the present time, divorce was necessary but envisioned a future in which it could be eradicated. The exact details of this plan were vague, although they generally involved making it more difficult to get married. One commentator, for instance, felt that “the greatest social evil in our country is the marrying habit.”
What was truly problematic about the “marrying habit” in the minds of many Americans was not only its relationship to the rising incidence of divorce but also the perception that the wrong types of people were getting married and having children. Specifically, a significant number of the nation’s most educated women were remaining single because (among other reasons) they did not want to give up their careers—as would be expected of them—after marriage. The fight for women’s rights, as well, threatened to separate women from their traditional duties as wives and mothers. Furthermore, the birth rate among native-born, white citizens had been in a steady decline since the early nineteenth century, whereas the immigrant birth rate (considered far less desirable at the time) was quite high. President Theodore Roosevelt undoubtedly did not assuage such concerns when he popularized the idea that given present trends, native-born, white U.S. citizens were in danger of committing “race suicide.” Such rhetoric, when paired with anxieties about the divorce rate, contributed to a full-fledged sense of crisis in regard to the state of family life in the United States.
Ironically, only a small percentage of Americans were getting divorced in the late nineteenth and early twentieth centuries. According to some historians there were fewer than two divorces for every thousand marriages in 1870. Certainly, many other couples created their own extralegal marital “exits,” prompted either by relationship woes or other necessity. The evidence nevertheless suggests that most Americans’ motivations for divorcing were hardly frivolous. Court records, for example, indicate that husbands and wives only sought to end their unions in extreme circumstances, such as when an offending spouse had long since disappeared, failed to provide basic necessities, or had committed adultery.
While many divorcing men and women also knew what the courts needed to hear in order to decide in their favor and may well have tailored their cases to fit such expectations, the low divorce rate nevertheless points to the serious personal and social consequences that accompanied the decision to divorce in Victorian America. At the time, after all, “evil” was the word most frequently paired with “divorce” in the popular press and in religious and legal circles. Most popular fiction, in turn, portrayed divorce as shameful and emphasized its harmful effects on individuals and society at large. The deleterious consequences of divorce were particularly evident for women. For wives without independent financial means, the infrequency of alimony allocations meant that divorce could lead to reduced circumstances or even destitution. Plus, divorce clearly represented a grave failure for any woman who embraced a Victorian identity as the moral guardian of the home, especially if her husband had succumbed to temptation and committed adultery. Many Americans believed divorced men and women to be morally suspect, and the divorced faced an uncertain social future based on their decision to end a marriage, no matter what had motivated them to do so.
The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).
There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.
The American marital entity has an interesting lineage as a legal category. It is directly tied to one religious set of concepts and beliefs. Looking back into its legal history, we see that marriage was not created de novo as an American institution. As a legal relationship, its content and terms were drawn from British institutions that had evolved rules exemplifying rigid relationships.
In England there was a direct historic connection between the state religion and the legal treatment of intimate relationships. Marriage was a sacrament administered by the church and subject to its rules. Under the common-law system in effect in England until fairly recently (as legal institutions go), issues concerning the creation and dissolution of marriage and other aspects of family formation were left to the ecclesiastical courts. It was not until the passage of the Matrimonial Causes Act of 1857 that jurisdiction over marriage and divorce was transferred to civil courts. Consistent with the precepts of their religious approach, these courts viewed marriage as a lifelong commitment. An annulment or, failing that, desertion, was virtually the only route out of an unhappy union. The Church of England’s ecclesiastical courts could grant a divorce “from bed and board,” which allowed couples to live apart but not remarry. Divorce was theoretically available, but only through a special act of Parliament, and between 1800 and 1836, an average of three such bills of divorce were granted each year. Generally, access to divorce was limited until the late twentieth century. This view of the presumed permanence of marriage was also evident in colonial America, where divorce could be granted by a secular judiciary, but this rarely happened. In fact, prior to the mid-twentieth century in the United States, judicial divorce although increasingly more common over time than in the colonial period, was available only for “cause.” “Cause” could include adultery (in New York this was the only cause that justified divorce in 1787), as well as “impotence, adultery, intolerable severity, three years’ willful desertion, and long absence with presumption of death” (Vermont in 1798) and “gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage covenant”. Today in Utah you can seek a divorce on various grounds including adultery, impotence and desertion. Speak to an experienced Draper Utah divorce lawyer to know the various under which you can seek a divorce from your spouse.
An “innocent” spouse could ask the state to sever the marital tie when she or he was successful in demonstrating the “fault” of her or his mate. Fault grounds indicated there had been some egregious offense to the very marital union. States such as New York at that time permitted divorce only for very serious offenses that were considered to undermine the nature of the marital connection, such as adultery. Other states considered the amorphous category of “cruelty” to be a sufficient basis for dissolution. Colonial divorce laws varied considerably by region, with the northeastern states tending to be slightly more liberal than their southern neighbors.
In the United States there was no established state religion, but the relationship between religious perceptions and beliefs about marriage and the construction of state principles regarding that connection were still evident, if attenuated. The individual states incorporated common-law concepts and definitions from the religiously shaped English rules into their laws governing family. American judges tracked the religious rhetoric of their English counterparts when considering issues involving the family.
Divine laws governed family relationships, setting out the natural order for the individuals who entered them. The content of the marital relationship was also divinely structured. In what has become one of the most famous concurrences in the American legal tradition, in the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley made what is still considered the classic statement regarding the common-law perception of the divinely determined distinct roles of husbands and wives.
The organization of the traditional family in the British and American legal tradition was also patriarchal, with the husband—“head” of the family—owed obedience and domestic and sexual services from his wife. In return, he was obligated to support her and their children. The husband’s role conferred rights as well as responsibilities, including the right to punish family members. Because he bore responsibility for their actions, a husband had the right to reasonably chastise both wife and children. His support obligations also gave him a corresponding right to the earnings of his wife and children, and to control over their property.
Further, the view of marriage expressed by Justice Bradley and the divinely ordained respective positions of the spouses also limited the expectations and opportunities for married women in the larger society. The marital family’s hierarchically organized and well-defined gender roles placed the spouses in different spheres. Women, excluded from many of the public aspects of life, were perceived as appropriately dependent. As the Bradley concurrence in Bradwell expressed, their true calling was considered to be the home and family.
This ordering of domestic life was intuitive—a response to the natural dependency of women. Common law imposed disabilities on women that supported this ordering of the world. Married women were not able to own property or make contracts. In some instances they could not even be held responsible for their own torts or crimes. Their husbands, perceived as controlling them absolutely, were charged instead.
The common law expressed a structure in which the distinct specializations of the spouses complemented each other: the wage earner and the housewife; the protector and the protected; the independent and the dependent. Each spouse needed his or her complement in order to attain and maintain a whole, complete family entity, one that provided for all its members’ needs. This specialization, bringing together the head and the heart of the family in the form of husband and wife, allowed the marital family to function in a self-sufficient manner, providing both economic and domestic resources to the unit.
This unequal, if complementary, positioning of men and women within the common-law family became problematic for women when divorce became more prevalent under no-fault statutes. These statutes changed a fundamental aspect of marriage. Marriage in its common-law manifestation was considered a lifelong commitment, but no-fault divorces ushered in a revolution in our way of thinking about the permanence of the relationship of marriage. No-fault meant much easier access to divorce. In many states divorce became available on unilateral demand of one spouse even over the objection of the other that the relationship could be salvaged. Men who wanted to be free of their “faultless” wives (as determined under the previous fault divorce statutes) no longer had to bargain with those wives and buy their complicity in the divorce process through concession of property or other economic incentives.
Initiated by both wives and husbands, no-fault opened the divorce floodgate and exposed the economic vulnerability of the common-law assignment of ownership of all wages and property to the wage earner. Wives were not considered entitled to a share of property accumulated during the marriage, since they did not earn the money to buy it and typically title was in the husband’s name. As a result, women found themselves and their children destitute at divorce.
The discouragement of married women from participation in the workplace and investment in a career also had more general negative economic implications. After a divorce, women found that they had to work in the marketplace as well as in the home, yet the old vision of marriage had discouraged them from honing the skills they needed to do so.
All this has changed, of course. The no-fault revolution coincided with another revolution in the way we understand the world—the gender equality movement, which ushered in massive changes in all phases of life, including marriage.
No Fault Divorce In Draper Utah
The move to no-fault divorce might have altered our view of marriage, but the gender equality revolution altered the way women perceive their societal, nonfamilial roles. It seems hard to believe that it was less than a century ago that women won important political and civil rights, such as the vote, which was achieved in 1920 with the passage of the Nineteenth Amendment. Even after women achieved the right to vote, they were still excluded from service on juries. Although the first women were summoned to jury service in 1870, as a rule, women were systematically denied or exempted from jury service for the next century, usually for reasons that were considered “benign” and “practical”. It was not until 1994, in J.E.B. v. T.B., that the Supreme Court declared that peremptory challenges based on sex violate the equal protection clause of the Fourteenth Amendment.
Until recently, the common-law rule was that a woman’s domicile (essentially her legal place of residence) was always the same as her husband’s. This caused difficulty for many married women, as a person’s domicile is used in determining numerous legal entitlements, categories, and qualifications. Because a woman’s legal identity had traditionally been merged with that of her husband, her domicile was assigned based on her husband’s place of residence, and a woman had no control over this determination. As divorce laws changed and women’s destinies were less tied to the institution of marriage, the inappropriateness of this situation became more obvious. The common-law rule began to change in the 1970s, and the American Law Institute finally ratified this change in 1988.
Prenuptial agreements have come to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties. Even while they do so, recognition is typically given to the changes in gender expectations. If you are planning a divorce and have a prenuptial agreement in place, consult with an experienced Draper Utah divorce law. The lawyer will review your prenuptial agreement and advise you on whether the agreement will be held valid by the court.
Child Custody And Child Support
The past few decades have witnessed a dramatic increase in the divorce rate in the United States and elsewhere, a phenomenon that reflects and influences changing social attitudes toward marriage and the family. When offspring are involved, the divorce process becomes further complicated by considerations over custody and visitation rights. And when the parents themselves cannot resolve these issues, the courts are faced with the difficult task of making a custody decision.
First, despite important differences in the amount of time they spend with their infants and young children, both fathers and mothers are significant figures in the infant’s world from a very early age. By the end of the first year, infants recognize both parents and prefer them to unfamiliar adults. By this time and increasingly during the second year, infants respond differently to each parent, reflecting the development of a rudimentary appreciation of each parent’s unique role in their world. The research indicates that there are more similarities than differences in infant responsiveness to fathers and mothers: They protest separation from either parent, delight in being reunited with them, and play comfortably in the presence of either father or mother. By all accounts, it is apparent that infants develop emotionally salient attachment relationships with each parent by the end of the first year. In short, both mother and father are “psychological parents” to their young infants, even when the father does not assume major caregiving responsibilities. There is every reason to assume that the psychological salience of each parent persists as the child grows older.
Second, even though both parents are important figures in the infant’s world, mothers and fathers differ significantly in their caretaking roles and responsibilities in most homes. Mothers typically assume basic caretaking tasks such as feeding, cleaning, dressing, soothing of distress, and preventative protection from harm. When they play with their babies, they use low-key verbally-oriented and toy-mediated games. In contrast, fathers are typically much less involved in routine caretaking tasks. Rather, they spend a greater proportion of their time engaged in play–specifically, a vigorous rough-and-tumble, physically stimulating kind of play.
The adjudication of child custody disputes raises important and interesting questions, among them the role of fathers as caregivers. For many years, courts have assumed a preference for the mother, contending that a mother’s nurturance and love constitute irreplaceable components of early socio-personality development, particularly during the “tender years.” More recently, however, judges have been using a more egalitarian “best interests of the child” guideline, in which mother and father can compete on a more equal footing for the custody of offspring. Yet this new guideline is a mixed blessing. Although it opens the door to fathers, its conceptual ambiguity permits a wider latitude of subjective judgment on the part of judges, which often results in an implicit maternal preference. The question of what are the child’s “best interests,” and how these may be served by a custody decision, is crucial if this decision-rule is to play a useful role in the custody adjudication process.
In hearing a custody dispute, a judge is faced with an unusual and difficult decision. Most legal disputes focus on the documentation of facts relevant to a case; child custody decisions entail more subjective judgments of parental caregiving competence. Furthermore, custody disputes cannot be resolved on the basis of judicial precedent. Rather, they must be addressed on a case-by-case basis, taking into consideration the unique history and circumstances of the family in question. The judge’s decision-making is further complicated by the predictive nature of the custody award. That is, he or she must consider the long-term ramifications of the decision, including the future economic and living conditions of each parent, the developmental needs of the child, and the potential availability of extrafamilial support systems. Finally, custody decisions rely heavily upon a judge’s discretionary powers in applying legislative guidelines to the particular family in question.
To be sure, most parents who divorce can agree on custody of the children without seeking judicial help. Despite the dramatic increase in the rate of divorce over the past two decades and the broadening of legislative guidelines to put parents on a more equal footing in seeking custody, fewer than 15% of the couples who divorce will proceed with a fully contested custody battle. And, of course, the overwhelming majority of custody awards are to the mother: Fewer than 10% of divorce decrees award children to the father. In many cases, fathers who receive custody do so with the consent of the noncustodial mother.
But although the proportion of disputed custody cases seems to be stable, the absolute number of disputes is increasing sharply due to the rising divorce rate. Coupled with the gradual changes in parental roles evoked, in part, by the increasing number of working mothers, it is reasonable to expect that the number of divorce petitions in which both parents want custody will continue to increase in the years to come. Therefore, it is important to clarify the guidelines by which judges resolve these disputes.
The legislative guideline that currently prevails in most states–that is, awarding custody according to the “best interests of the child”–is historically the least explicit. Interestingly, English legal tradition long asserted a paternal preference, reflecting a time in which offspring were regarded as heirs to privilege and wealth and as parental property. Thus the father was viewed as the primary guardian of his legitimate children and, in the event of a dissolution of the marital bond, he assumed exclusive custodial rights. With the changes in social structure wrought by the Industrial Revolution and changes in social philosophy provoked by writers like Locke and Rousseau, this common law assumption gradually broke down. Instead, by the 19th century, both English and American law put the wife on an equal footing with her husband: Both were to receive equal consideration in a custody decision. In practice, however, this usually resulted in an implicit maternal preference, because custody decisions were based on evaluations of parental fitness and wives, as the customary initiators of divorce action, were in a better position to argue against their husbands. Concurrently, an explicit maternal preference when the children were in their “tender years” (generally speaking, under the age of seven) helped to consolidate this implicit bias for the mother in the courts. In short, changing judicial guidelines were reflecting changing social values. Childhood was increasingly viewed as a period of nurturance and education, and mothers typically assumed a major role for both.
Early in the 20th century the maternal presumption became consolidated in judicial decision-making, sometimes by explicit statute but more often in the form of case law.
Jurists assumed that, except in instances when the mother was clearly unfit, it was consistently best for the child to benefit from the love and nurturance provided by the mother. They were supported in this assumption by contemporary psychoanalytic theory, which stressed the unique role of a mother’s love to early psychological development.
More recently, however, the maternal presumption has been increasingly questioned in favor of a more egalitarian guideline. Much of the impetus for this reconsideration has come from social critics who regard the maternal preference as inherently sexist and a perpetuation of traditional gender roles. The dramatic rise in the number of working mothers in recent years and the concurrent increase in demand for infant and preschool childcare services are particularly salient manifestations of the changing American family. Thus the traditional family system in which mother is a fulltime caregiver is no longer the norm, and this has undermined the rationale for an explicit preference for mother in custody disputes. In addition, of course, there are a number of instances in which an explicit maternal presumption is clearly inappropriate, such as when the father or another person has assumed sole caregiving responsibilities, or when the mother is abusive or neglectful. Finally, many critics contend that the maternal presumption focused attention on judicial evaluations of parental fitness rather than on child-centered concerns. Thus the purpose of the best interests guideline is to encourage an appraisal of the custody dispute in light of the contributions (actual and potential) of each parent to the child’s present and future needs.
Problems with the Best Interests Of The Child Guideline
This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted.
A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child’s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?
There is no easy answer to this question, and opinions vary widely. Some legal scholars advocate a more limited interpretation of the child’s interests in order to curtail the court’s discretionary powers in deciding child placement cases (e.g., custody, foster care, etc.). On the other hand, some experts argue that “psychological parenting” should be the primary consideration in determining child placement; that is, to whom has the child developed a lasting emotional bond? There is, in short, no clear consensus concerning what constitute the child’s primary interests in determining a custody award.
Assuming that the best interests guideline is meant to include factors other than physical well being alone, a second question concerns the limits of this construction. That is, how do we evaluate the parental caregiving practices that promote the child’s best interests? Is one parent’s warm but permissive approach preferable to another’s less affectionate limit-setting? Should judges prefer a custody arrangement that is likely to foster a strong traditional gender identity in the child? These and a range of similar questions surround most custody decisions and concern the implicit goals and values that underly a court’s preference for one parent over the other.
It is doubtful that there is much broad consensus within most Western societies concerning these child-rearing goals and practices. As with differences in lifestyle, parents vary greatly concerning the traits and characteristics they seek to develop in their children, and they employ a range of practices for achieving these goals. This diversity contributes to the heterogeneity of a society, in fact, and courts have traditionally hesitated to infringe upon parental freedom to raise their children as they prefer. Indeed, apart from those instances in which state intervention is mandated by manifest child abuse or neglect, greater concern has been voiced over the state’s overregulation of parental decision-making in areas such as education, religious training, and medical care. In short, society encourages a great deal of freedom and diversity in child-rearing goals and practices and, by and large, the courts have insured this freedom.
In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child. In short, these judgments of caretaking often involve intuitive, usually unarticulated value judgments that are relative to the values and beliefs of the judge determining a custody settlement. These values are likely to reflect sociocultural and social class biases as well as religious beliefs and moral attitudes. Importantly, they usually entail judgments of parental fitness, with secondary regard for their actual or potential effects upon the child. Thus a second difficulty with the best interests guideline concerns judging the parental practices that contribute to a child’s best interests. In the absence of a prevailing social consensus, judges tend to use their own intuitive value judgments that may or may not reflect child-centered concerns.
It is important to note, however, that intuitive judgments of parental practices are not limited to jurists. Indeed, “expert testimony” from various sources, including psychiatric witnesses and social workers, has been criticized as being largely subjective and value based, and thus unreliable. In other words, any subjective assessment of a family is likely to result in speculative and unreliable judgments. Furthermore, this unreliability is especially likely when the family is under stress (as in a custody battle), when normal patterns of interaction are affected by emotional turmoil. Thus it is doubtful whether assessments of family interaction at the time of a custody dispute–by a judge or an “expert witness”–yield meaningful information about parent-child relationships.
A third ambiguity in the best interests guideline concerns the time frame within which a child’s interests are appraised. Divorce presents parents and children with immediate and difficult adjustments. Should judges seek a custody arrangement that helps the child to negotiate these short-term transitions? Or should longer-term concerns take precedence if they conflict with more immediate needs? These, too, are questions of judgment about which legislative guidelines or judicial precedent offer little guidance.
Taken together, the major difficulty with the best interests guideline is the broad interpretational latitude permitted judges in deciding custody disputes. Disagreement exists concerning which of the child’s many interests should be included in a judge’s deliberations, how these interests are translated into judgments of parental child-rearing practices (and how these practices should be assessed), and whether short-term or long-term concerns should take precedence. These conceptual ambiguities thus delegate a good deal of discretionary power to judges, with the result that custody decisions may be based on implicit value judgments that are relative and thus inappropriate to legal decision-making. Of course, these interpretational problems are most acute when the child’s best interests are broadly construed, but to some extent they are inherent within any such inclusive formulation.
In view of this, some legal scholars have called the process of child custody adjudication “indeterminate”–that is, there are often no reliable, objective and legally satisfying ways of awarding custody to a parent according to the child’s best interests. Whereas some custody cases are always relatively easy to resolve (such as when one parent is abusive, or has abandoned the family, and the other parent has not), for the majority of cases there exist no generally accepted, easily applied decision-rules by which the child’s best interests may be determined fairly and objectively. The same case presented to two judges may be decided in very different ways. The indeterminacy of child custody adjudication also has important implications outside the courtroom. Legal guidelines usually serve as negotiating parameters by which the parties to a dispute can assess their relative chances of success in adjudication and modify their demands and expectations accordingly. Under the best interests rule, fathers and mothers are provided little information of this kind. Thus articulate and consistent custody guidelines are necessary both for the adjudication process and for the interpersonal bargaining that precedes it.
What is the solution to judicial indeterminacy in custody cases? Some have suggested a return to more specific, all-encompassing legislative decision-rules (e.g., custody awarded to the mother if the child is age 5 or younger; custody awarded to the same-sex parent with older children). This would limit judicial discretion, but a proportion of disputes would certainly be resolved unfairly. Another proposal is for a greater emphasis on predivorce mediation to encourage parents to seek their own solution to the custody dispute short of a court battle. A third–and more radical–alternative is to decide custody disputes by some random process: in essence, a judicial coin-flip.
Such an approach would acknowledge the inherent inability of the court to make an objective, reliable custody award, and would prevent the noncustodial parent from feeling that he or she was judged to be a less adequate parent than the spouse with custody.
Short of these alternatives, it is clear that judicial decision-making in custody disputes entails highly idiosyncratic considerations that must be addressed on a case-by-case basis. The history of the family in question, the wishes of the child, the nature of the temporary custody arrangements, the quality and quantity of predivorce parental caregiving involvement, and prospective living conditions for the child with either parent are all considerations (to name a few) that should figure prominently in a custody award and that are likely to vary from one family to another. The important question, however, is whether there exists a valid overall framework within which these factors can be considered and by which further information may be requested and evaluated. In other words, judges and lawyers require some general understanding of the nature of family functioning in intact and divorced homes in order to properly interpret and weigh these considerations relevant to the child’s best interests. Operating within such a framework, jurists may be less likely to base custody decisions upon idiosyncratic and value-laden considerations. It is in providing such an overall knowledge base that psychological research may have a limited but important role in the adjudication of child custody disputes. This is particularly true concerning the role of fathers as caregivers, which is the topic of this review.
One very important factor differentiating mother-child from father-child relationships is the quantity of caretaking. In traditional homes, of course, the mother is usually relegated childcare as well as other domestic chores while fathers spend most of their day away from the home. With the reappraisal of gender roles during the last decade, one might anticipate a softening of these traditional childcare assignments within the home. Several recent studies of time use suggest, however, that fathers are still largely uninvolved in routine caretaking tasks.
Taken together, these differences in the quality and contexts of mother-infant and father-infant interaction reflect a basic difference in each parent’s role vis-à- vis the baby. In most instances, the mother is the infant’s primary caretaker, even when she is employed outside of the home. That is, she more typically provides for the baby’s basic needs–feeding, bathing, diaper-changing, soothing of distress, preventative protection from harm, and similar ministrations–as well as being a salient social partner in low-key play. In contrast, the father’s typical role as a secondary caretaker is less focused around specific caregiving activities and more focused on vigorous, physically stimulating play with the baby. Play is thus a more basic interactive context for infants with their fathers than with their mothers; in addition, different kinds of play activities also distinguish each parent. In short, infants begin to know and develop expectations for each parent in somewhat different social contexts.
Does this division of roles mean that fathers are less competent than mothers in basic caretaking tasks? Evidently not. If you are a father, speak to an experienced Draper Utah divorce lawyer for advice on how you can get custody of your children.
Fathers are competent and responsive caretakers, whether their competence is appraised in terms of the occurrence of certain caretaking behaviors or their responsiveness to infant cues. Similarities in mother-infant and father-infant nurturant and caretaking activities have been noted for parents in other cultures as well. Such findings are ironic in view of the strong tendency of fathers to eschew caretaking roles at home. In other words, fathers can be highly competent caretakers when called upon to do so, even though they seldom assume such responsibilities spontaneously. Instead, they spend a greater proportion of their time engaged in vigorous, physically active play with their infants.
Taken together, the research on mother-infant and father-infant relationships indicates that fathers are preferred as play partners from a relatively early age, and mothers are preferentially sought when infants are fatigued, alarmed, or stressed. As earlier indicated, the paternal preference is unsurprising in view of the contexts in which infants typically encounter their fathers and the kinds of exciting, physically active games fathers play. Infants seem to learn that fathers are fun to play with during the second year. Similarly, infants’ preferences for their mothers under stress are also unsurprising in view of the maternal caretaking role in most families. Mothers typically feed, bathe, clothe and, importantly, comfort their babies when the infants are distressed; infants seem to learn early on that their mothers are a source of soothing. Thus mothers and fathers differ importantly both in their caretaking roles and, it seems, in how they are perceived by the baby from an early age. Mothers as primary caregivers in most families spend a greater amount of time with their infant sons and daughters and assume greater responsibility for routine caretaking tasks, even when they also work outside of the home. Fathers as secondary caregivers spend less time with infants overall but devote a greater proportion of their time to physically vigorous, arousing play. These differences in parental involvement are manifested early in differences in infant responsiveness. Infants prefer their fathers as play partners and respond more positively to them in these situations. Under conditions of stress, however, they turn to mothers, reflecting different expectations for each parent that develop during the first year. In short, infants learn about their mothers and fathers in different contexts, and develop different expectations for them as a result.
Often a child can become a mere cipher in conflicts over custody. Finding the right balance between the claims of two separating partners is not easy. Judges have more commonly been willing to award custody of young children to mothers on the ‘tender-years’ principle: the idea that, because of the strong natural bond between mother and child, if young children cannot be with both parents, they are better off with their mother.
So, while the case for women in the custody battle may be strong, it is increasingly recognized that men, too, have grievances to be addressed and that current law can disadvantage them in a number of ways. In the vast majority of cases, custody of children on divorce is awarded to women, and contact orders, largely made to men, are often broken. There are particular cases where court decisions are likely to strike anyone as totally unfair—a non-working wife who ends a marriage because of another liaison may well be awarded children, house, and most of the couple’s financial assets, notwithstanding her responsibility for the collapse of their joint family-building project and her lack of any financial input. She is free to introduce unofficially into the family structure another man to replace the natural father in the lives of her children. With the growth of these disadvantages has come the loss of many of the previous advantages of marriage for a man, as traditionally the best way of securing not only a steady sex life, but also status in the community, and a substantial and satisfactory personal project in which he could reasonably regard himself as a vital element.
Given these tensions, it is not difficult to see why the closing years of the twentieth century should have seen demands for a new approach to child custody based on the principle that, even if divorce can end relationships between adults, it is important to maintain the child–parent relationship. The presumption is that a continuing relationship with both parents will enable both of them to offer physical, emotional, and financial support to their children. The practical goal, then, becomes a matter of seeking to ensure reasonable contact for both parties. But ‘reasonable contact’ is an imprecise concept, varying from contact on alternate weekends to a more extensive and rigid division of time mapped out in terms of days or even hours per year. So joint or shared custody, in the sense of children’s time being relatively equally divided between parents, has become the arrangement of choice for some on the basis that it finally establishes the principle of equality and the equal legal standing of women and men. It may also be promoted from the child’s point of view, as it is, for example, in parts of the USA, where co-parenting may be advocated as a matter of a child’s rights—in this case, a right to live with either parent for some of the time. But the burden such arrangements impose on children should not be underestimated. It is often argued that disruption for children can be justified if it represents an escape from extremely difficult domestic situations. But, in general, the effects of divorce on children are poor and can be measured in terms of low educational achievement, difficult relationships with parents, especially fathers, and other emotional problems.
So all this leaves us with the fundamental question of who should care for the child when a couple splits up. For this we need to understand the judgement King Solomon passed. There is, though, more to the story of Solomon’s judgement than this. Faced with the equal balance of the two rival claims, Solomon intends, or at least pretends to intend, to take a sword and split the child in two. The false claimant is ready to accept this. But the true mother calls for an end to the legal battle and its dire outcome, saying that she is ready for the sake of her child to allow it to go to the other claimant. Solomon gives the child to her for, by her willingness to sacrifice her own interest, she has unintentionally demonstrated the truth of her claim.
In many ways, equal joint custody resembles the solution proposed by King Solomon—the child must live a split life between two homes, with little time or opportunity to create a place for itself in either, and much of its potential time with peers taken up by outings with a displaced parent. In these circumstances, it may be that some parents will express their love for the child by relinquishing maximum rights, asking only reasonable and modest access, in order to give the child a life of its own.
Cases involving extreme violence represent, of course, the outer limits of the way in which custody can serve the needs or preferences of parents and ignore the vulnerability of children. But, even where violence is not a factor, contact and residence rulings can be a way, deliberate or not, for one parent to exercise control over the other, making it impossible for the other parent to gather up the threads and start again, free from harassment and disruption. There are no easy answers to post-separation arrangements looked at from the point of view of the children themselves. It would be better if parents could recognize this and acknowledge that their own decision to split up means that, as far as their children are concerned, their security, home life and frame of reference for living their lives has been unpicked. If it is difficult to secure fairness for both parents, it is even more difficult.
In practice, separations often bring into already complex situations new people, both adults and children, who have their own needs and perspectives. For, while the initial situation may be focused on the problem of how two individuals are to share their children’s lives between them, in practice one or both partners may bring someone else into the picture, posing a challenge of adjustment both for the adults and for their children. As far as the adults are concerned, it may be difficult to accept that their children are living with the person who has replaced them in their partner’s life. It will be difficult if the new mother or father is not caring properly for the children, but in some ways just as difficult if they are doing so successfully. A mother, particularly if she is not responsible for the breach, may find it very hard to accept that the woman who is responsible for it has taken over her role and formed a bond with her children. The same applies to fathers. A man, too, may find it hard to accept the reality of his children living with the man who has taken over his own role.
Custody and access are, of course, intended to protect parents’ relationships with their children and also to secure the best interests of those children. But these are difficult goals to reconcile. Even in the best of cases, children do not like to be asked to choose between their parents. Listening to the child’s voice is a worthwhile step, but no one should be deceived into thinking that that is a universal panacea. Like the apocryphal traveller whose request for advice evokes the response ‘I would not start from here’, in most cases the child does not want the split in the first place. What children most need and most want is what normal family life provides: a chance to build their own lives and relationships with their peers, with their parents in the background for support and comfort, and preferably not as judicially ordered companions for parent and child outings.
What children want, sadly they will not always get, and sometimes society itself will pay the price. But it is worth adults at least being clear about what they are doing and not deluding themselves with anodyne suggestions that their children will be happier, or at least benefit, when their aspirations for simple childhood constants are shattered and exchanged for a new life that includes mobility, fluctuating relationships, new ‘siblings’ to negotiate with, and new parental whims to accommodate. The old mantra ‘I am only staying with you for the sake of the children’ may often have been the simple truth in the past and in many cases could have been the better choice. From the child’s point of view, it may still be so. For, on the whole, children like families—the family is a child-friendly institution and only secondarily there to keep adults happy.
If your spouse is abusing your child, you should seek custody of your child. Proving child abuse is difficult as the child may be scared to speak out against the abusive parent. You will require the services of an expert witness.
Although no uniform theory is available to provide consistent answers to disputed issues between conflicting parties, there should be a common goal for all professionals acting as expert witnesses. That is, all theories and expert witnesses should work toward the best interest of the child. However, different professionals may disagree as to what is in a child’s best interest. Under this premise, lawyers need to know the fundamental similarities and differences of all theories and models of child abuse and neglect such that expert witnesses can be called upon who will select the most accurate and impartial view of the child’s best interest. In short, the knowledge provided by the expert witness should serve the functions of verification, confirmation, conversion, and education in order to increase maximal judicial validity of evidence presented in court.
Responsibilities Of The Lawyer In Using Expert Witnesses
In legal proceedings dealing with victimization, the court may require concrete and comprehensive information from experts in order to establish the evidence of responsibility, causality, liability, and damages. Therefore, the lawyer involved will need to have accurate knowledge of the (1) perpetrator (e.g., intention), (2) victim (e.g. impact), (3) victimization processes (e.g., form of maltreatment), and (4) social and legal dispositions (e.g., removal of the victimized child from the abusive environment).
Resolution for these issues relies heavily on subjective explanations and interpretations of circumstantial evidence and facts. Because of the subjective nature in explanations or inferences, the experts used by the legal profession will thus generate possibly controversial and incompatible opinions about various objective phenomena of child abuse and neglect.
Therefore, in dealing with the diverse theoretical backgrounds of the experts, lawyers need to have a clear understanding of evaluation criteria for assessment of expert testimony. That is, each expert should and can be characterized in terms of his/her theorization of child abuse and neglect.
Since clinical and psychological testimonies are frequently based on some theories that may have no empirically verified foundations, lawyers handling of child abuse and neglect cases, with or without the assistance of other professions, should always evaluate the admissibility of expert testimony in reference to multidisciplinary theories and knowledge. Therefore, the judicial validity of future expert testimony will rely heavily on the competency and willingness of lawyers in testing its admissibility in the areas of necessity, reliability, validity, understandability, and importance.
Above all, it relies on the ability of lawyers to identify different origins of various theoretical foundations used and to differentiate their feasibilities for application to the legal issues involved.
In regard to the state maintaining a primary interest in the dependency component of the parent-child relationship, the cases and legislation are very clear. The economics of the tie are for state determination. Husband and wife cannot negotiate child custody and support free from judicial scrutiny and approval. The state retains an interest in these arrangements and the right to assess and alter any settlement the spouses may reach upon divorce even to modify existing arrangements in the best interests of the child.
Economic or dependency issues concerning the ongoing needs of children that are addressed in the divorce context can be compared with the nonmarital situation. Historically, marriage defined the status of children in relation to their parents and the claims they could make upon or through them. The presence or absence of marriage determined which children were labeled “legitimate” or “illegitimate” and, thus, either granted or denied benefits accrued by their parents under state insurance and compensation schemes.
The U.S. Supreme Court has reduced the significance of marriage in regard to the parent-child connection. It did so first in regard to mothers when, in Levy v. Louisiana, it held that denying damages to “illegitimate” children as a result of the wrongful death of their mother is a violation of the equal protection clause of the Fourteenth Amendment. But fathers’ connection to children has also evolved so as to not require its mediation through the institution of marriage. Unmarried fathers now have rights and responsibilities for their children that were not part of the common law scheme of things. Nonmarital children are entitled to benefits historically reserved for their marital counterparts, such as parental support, workers compensation benefits, and the right to recovery in the event of a parent’s wrongful death. Such improvements recognize the reality of dependency is more important than the status of the parents’ relationship.
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