Family Law Advisor®
The Divorce, Alimony, and Custody Reporter
Volume 7, Issue 1
September 2003
Introduction: Popular Divorce Literature
From time to time the Family Law Advisor reviews divorce literature and other divorce-related materials for the general public. The six books reviewed this fall range from works on custody, mediation, marriages of famous nineteenth century authors, and advice on saving your marriage to minimizing the stress of divorce.
Our choices of books are based on availability and readability. When people are going through separation and divorce, they often experience a decline in their ability to focus. Cumbersome or technical works have been omitted on that basis, although a determined reader might read the cases cited in the material, including the Massachusetts case, In Re Custody of Vaughn, for the discussion on the effects of domestic violence on children who witness violence in the home, and the New York case, ex rel. Watts v. Watts, ending of the reign of the so-called “tender years presumption” that favored mothers as custodial parents of children of tender years.
Judith Wallerstein is also quoted in some of the materials. She is the well-known researcher of longitudinal studies of children of divorce. She is the writer of the best-selling book, “Second Chances.” Some experts question her methodology and conclusions, but there is little doubt of the enormous impact she has had on divorce research and custody litigation. Ms. Wallerstein is a proponent of maintaining strong ties between the custodial parent and child, even if it means limiting the noncustodial parent’s access when the custodial parent seeks permission to move out of state or beyond a reasonable driving distance from the noncustodial parent’s home.
Richard Gardner is the controversial originator of the Parental Alienation Syndrome (“PAS”), that describes the conscious attempts of the custodial parent to drive a wedge between the child and the noncustodial parent. Dr. Gardner, now deceased, advocated punishing the alienating parent by changing custody to the noncustodial parent. Dr. Gardner is also cited in these materials not only as a counterweight to Ms. Wallerstein, but because of the impact of PAS on contemporary custody litigation.
The Wallerstein-Gardner debate exemplifies the current dilemma in American custody cases. On the one hand we want to focus on the needs and interests of the children, and on the other we want to punish uncooperative parents or at least pretend that the we are not rewarding a custodial parent’s bad behavior or being inappropriately harsh toward a perfectly decent noncustodial parent – all in the name of the child.
A recent article in the Massachusetts Bar Association’s newsletter was authored by Edward Ginsburg, a retired family court judge from Massachusetts. Judge Ginsburg suggests that courts should automatically favor the parent who performed most the parenting activities prior to litigation when trying to determine the outcome of a custody case. The proposal may sound like the old tender years presumption, but it creates certainty, and that is ultimately beneficial in cases where parents and children are often left in limbo for years. The author also recognizes the inherent unfairness to the less involved parent, and does not attempt to sugar-coat the result. Dropping the pretense of fairness is refreshing.
High conflict custody cases are the bane of legal profession. In an attempt to minimize the conflict, legal experts and mental health professionals are promoting mediation and collaborative law. These are out-of-court means for resolving disputes, but it remains unclear whether they will be any more useful than litigation in minimizing the conflict between warring parents.
Mediation requires an enormous emotional commitment. An article in the Sunday New York Times Magazine of August 24, 2003 describes one couple’s mediation experience. The author seems to favor mediation over lawyer-assisted negotiation because the couple described in the article ended up exploring the rise and fall of their marital relationship to such a degree that they were able to reach a financial settlement that required the wife to pay more than she wanted but less than what the husband expected. The article fails to acknowledge that most divorcing parties end up in the same financial and emotional state, whether they negotiate through counsel or litigate.
Collaborative law not only requires the parties, but the lawyers to swear off litigation during negotiation. If the process breaks down before resolution, the parties are mandated to find other lawyers. Presumably this mandate prevents the first set of lawyers from becoming unduly inflammatory. Yet the parties are the key players, not the lawyers. If the parties are ready to settle, they will, if they are determined to continue the battle, they will, even if they have to find another set of attorneys.
"The Custody Wars"
Children as Assets – Financial and Emotional
“The Custody Wars,” by May Ann Mason was published in 1999 by Basic Books of New York. Ms. Mason teaches law and writes extensively on family law issues. Her book on custody covers a wide range of issues from a historical overview of children as an economic asset in the nineteenth century to contemporary children as “extremely coveted” emotional assets in modern American families. Her notion is appealing, but overlooks one obvious financial fact: money follows the child. The custodial parent usually receives child support from the noncustodial parent.
Expanding Definition of Parenthood
Ms. Mason’s book discusses the expansion of parental rights to unwed fathers, gays as parents, and parents of test tube babies. She also describes the advent of the growing number of American children living with stepparents. Ms. Mason acknowledges that “Custody issues are not likely to become simpler. They will only grow in variety and complexity as technology advances and marriage retreats from its role as the central child-raising institution.” Ms. Mason’s understated prose belies a strong conviction that policymakers need to rethink current custody laws and policies. For example, Ms. Mason is dismissive of unwed fathers as a group, characterizing them as unproductive as a whole, and unlikely to pay enough support for their offspring to make it financially worthwhile to chase them for support.
Ms. Mason also avers that “it is not obvious that the parenting relationship [between unwed fathers and their children] would be in the best interests of the child…Pushing fathers into the lives of their children without the active cooperation of the mother is not likely to promote a happy childhood.”
That is a troubling concept if carried to the logical conclusion that no relationship should be permitted between a child and noncustodial parent without the active cooperation of the custodial parent. It amounts to a declaration of war between custodial and noncustodial parents, and adds to the widespread perception that mothers have a the upper hand in custody battles because most mothers retain custody after divorce and can easily thwart a father’s access by many small and grand gestures antithetical to a cooperative model of parenting.
Ms. Mason justifies her conclusion by stating that she is seeking a child-centered standard that takes precedence over the rights of the adults. She also purports to limit her proposal to unwed fathers on the assumption that many unwed mothers eventually marry someone else. Is Ms. Mason suggesting that stepparents replace biological parents? The reader might draw that startling conclusion, but if that is what she means, her conclusion has many complicated implications for all children, including those born of wedlock since most divorced women remarry within six years of their divorce, as Ms. Mason herself observes. Stepfamilies are increasingly common, and yet there is no body of law that establishes rights and responsibilities for stepparents. And even if we develop laws regulating stepparents, would we confer greater rights and responsibilities upon stepparents of children born out of wedlock than we would upon stepparents of children born of a legal marriage?
Ms. Mason seems to be arguing in favor of turning the clock back when it comes to adjudicating the rights and responsibilities of unwed fathers by terminating their rights and responsibilities. While she may be right on the economics of these cases, it remains unclear whether children are better off having no relationship with their biological fathers, and indeed whether all unwed fathers should be treated as worthless. If their earning capacity is the single most important criterion, then we might also terminate the parental rights of any parent in the lower financial rungs of society.
The author points out that biology is also trumped by technology in cases where infertile couples become the legal parents of a test tube baby. She states that “An emphasis on actual parenting behavior rather than on strict biology and a concern for the wishes and feelings of the child…are the clarifying principles.”
In spite of these and other views that fathers rights groups might dislike, Ms. Mason’s work is impressive for several reasons. She attempts to develop a child-centered standard in shaping policies and laws that give children a voice. She advocates for adoption of the British system that automatically provides children with their own lawyers and custody evaluators. The author also endorses the British model for mandating periodic reviews of custody instead of requiring proof of a material change in circumstances. She argues that the legal system should acknowledge the continuous evolution of the psychological needs of growing children. Our current system imposes the burden of proving a material change on the parent seeking a modification of custody. In contrast, our child support system currently provides for mandatory periodic reviews.
Ms. Mason also delves into the effects of domestic violence on children. She
acknowledges that experts are divided on whether spousal abuse also affects children in the same household. Compare her observation with the assertion made by the Massachusetts Supreme Judicial Court in the case called In Re Custody of Vaughn where the court states emphatically that it is a well known and well accepted principle that children are victims of domestic violence if they have witnessed violence between parents.
Ms. Mason is well-versed in the hot topics in custody litigation, and by providing us with the historical overview and a geopolitical flavor to her discussion with references to the U.N. Convention on Rights of Children, she provides much food for thought, even if she risks offending noncustodial parents when she writes “Child support is not rent-a-child. Support must not be tied to visitation.” It would be less offensive if she also outlined a proposal to encourage visitation, but instead she reiterates her belief that the children’s voices should be heard, even if they seem to parrot the custodial parent’s desire to terminate visitation.
The author somewhat dismissively talks about the Parental Alienation Syndrome (often referred to as PAS), a term coined by the now deceased and controversial psychiatrist Richard Gardner to describe the custodial parent’s efforts at alienating a child from the noncustodial parent. Ms. Mason believes the child’s own feelings should be taken into account and given great weight in custody disputes, even if it means restricting or eliminating parental access. Her opinion depends upon the belief that the custodial parent is not the ghost writer of the child’s statements and that the child has not been brainwashed – a point often debated by the noncustodial parent.
"How To Mediate Your Dispute"
Peter Lovenheim is the author of “How to Mediate Your Dispute,” Nolo Press, July 1996. Mr. Lovenheim provides an easy-to-read guide to mediation, including names and addresses of referral resources for qualified mediators. The material provides information for the resolution of all kinds of disputes, and also devotes a significant portion to divorce. Practicing mediators often state that the divorce segment of their practice is the busiest. Nolo Press is an excellent source of readable “How To” legal books for the general public. This work is no exception.
Buy "How to Mediate Your Dispute" online from Amazon.com
"Parallel Lives: Five Victorian Marriages"
Phyllis Rose’s book “Parallel Lives: Five Victorian Marriages,” published by Knopf Inc. in 1983 presents marital histories of Victorian couples in their own words. Ms. Rose’s material focuses on several famous writers of nineteenth century England,
including John Mill, Virginia Woolf and Aldous Huxley. Not surprisingly these articulate individuals provide a wonderful written account of their marriages. The surprising element is the narrative supplied by the writers’ spouses or in Virginia Woolf’s case, her live-in partner of over twenty years. In each case one partner is inextricably tied to the other, but presents a different view of the relationship, like couples performing a waltz, one partner moves forward and to his right as the other moves back and to her left. Small wonder that each partner describes their joint lives in different terms. This is an intriguing glimpse into the lives of married couples that provides similar insights into the differences between divorcing parties.
Ms. Rose speculates that “Marriages go bad not when love fades – love can modulate into affection without driving two people apart – but when …the balance of power breaks down, when the weaker member feels exploited or the stronger feels unrewarded for his or her strength.”
Buy "Parallel Lives" online from Amazon.com
"The Divorce Remedy: The Proven 7-Step Program for
Saving Your Marriage"
Written by Michele Weiner Davis and published by Simon & Schuster in 2001, this is an excellent book, easy to read, and filled with resources for keeping your marriage intact, including the author’s own Divorce Busting Center in Woodstock, Illinois and her site, www.divorcebusting.com.
Ms. Davis believes marriage provides a haven for individuals who are healthier and happier than their single colleagues.
Buy "The Divorce Remedy" online from Amazon.com
"Conscious Divorce: Ending a Marriage With Integrity"
This short work by Susan Allison was published in 2001 by Three Rivers Press of the Crown Publishing Group. Although the book offers few new insights, it has helpful checklists for identifying the source of your stress and stress management techniques. Ms. Allison also provides morale-boosting sayings like: “I love myself unconditionally,” and “I only want what is best for me.” Whereas some authors try to focus on the children of divorce or the needs and wants of both spouses, this author focuses almost exclusively on the divorcing party’s emotional needs.
Ms. Allison’s book may be helpful when a spouse is reeling from the effects of the sudden departure of the other spouse, but it probably has its limits when preparing for court or mediation when the needs of both spouses and the children should be addressed in a more balanced manner. Nevertheless, its brevity and message will be useful to newly separated or divorced individuals who need a big douse of affirmation to recover from the emotional damage of their marital dissolution.
Buy "Conscious Divorce" online from Amazon.com
"The Nurturing Father"
According to Kyle D. Pruett, author of “The Nurturing Father,” published by Warner Books in 1987, fathers are just as capable as mothers of rearing their offspring, even if their parenting styles are different. The material is easy to read and makes its point without lambasting mothers. It is an excellent resource for any parent contemplating divorce, and is a part of the societal trend and literature of the past twenty-five or thirty years which are moving away from the “tender years presumption” that favored mothers in custody disputes.
In 1973 a New York court ruled in ex rel. Watts v. Watts that “The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the father can provide.” Up until the early seventies, most of the twentieth century custody cases focused on mothers as custodial parents. Prior to the turn of the twentieth century, fathers were awarded custody, not because it was necessarily in the child’s best interest, but because fathers had a monetary interest in their offspring that outweighed the interests of the child or any rights of mothers. As women gained more political clout and legal rights, society also shifted its view of children as profit centers to needy beings who were entitled to protection and nurture. Women were deemed more naturally inclined to care for young children, and hence the “tender years presumption” evolved and became the single most important tool for deciding custody cases. Some historians also believe the Industrial Age was the agent of change, because children were no longer deemed essential workers on family farms, and thus fathers ceded their claim to children.
Whatever the reason for the change from paternal to maternal preference, we now seem to be at a cross roads. Most men actually prefer not to fight for custody, but when and if they do, they win most of the time, according to Judith Wallerstein who found that in one Los Angeles court, fathers seeking custody won 73 percent of the cases. That compares with a similar figure in Massachusetts where a Commission on Gender Bias in the Courts found that men won 68 percent of the cases where they actively sought custody.
A Few of Our Favorite Things
Annual Travel and Vow-Renewal Ceremonies
Renew your marriage vows every year – it is the latest trend in the travel industry according to the August 28, 2003 edition of the Wall Street Journal. Resorts and cruise lines are offering vow-renewal packages from $100 to $485 plus the price of a cruise or resort. Disney World in Orlando charges $3,000 for an all-inclusive four-night stay, including a solo musician, event coordinator, cake-cutting reception and admission to its theme and water parks. The vow-renewal fad is big business. Wal-Mart has developed a line of vow-renewal jewelry. And some couples register with Wal-Mart and Target.
Marriage Support Groups
Check out Worldwide Marriage Encounter, Marriage Savers and Smartmarriages--marriage education and support groups.
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