Academic journal article Law and Contemporary Problems

Foreword

Academic journal article Law and Contemporary Problems

Foreword

Article excerpt

The most famous article on child-custody law, and one of the most important in family law scholarship altogether, is Robert H. Mnookin's Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, published in Law and Contemporary Problems in 1975. (1) In that article, Professor Mnookin analyzed the best-interests-of-the-child standard, which by the 1970s had emerged as the dominant custody decision rule. (2) Although the best-interests standard seemed on its face to be an uncomplicated and straightforward way to put the interests of children first in custody decisionmaking, Professor Mnookin explained its distinctive character and deficiencies as a legal rule. (3) His two core themes were the indeterminacy of the best-interests standard and the differences between private custody disputes and those in which the state seeks to take custody of a child from a parent. (4) The goal of this issue of Law and Contemporary Problems is to examine the impact of Professor Mnookin's framework and insights and to analyze developments in legal and social-science research and in practice since his article imposed conceptual order on the field.

Professor Mnookin's custody article is so familiar to scholars in the field that it need not be described in detail, but its most important contributions warrant a brief summary. First, the article explained how child-custody adjudication under the best-interests standard differs from adjudication in other legal contexts. (5) In the standard legal proceeding, judges apply the law by evaluating factual evidence of past acts. In applying the best-interests standard, judges evaluate the parents as persons and make predictions about how each proposed custodial arrangement will affect the child's future welfare. One problem, Mnookin explained, is that current knowledge of human behavior is not adequate to equip courts to make accurate predictions about various outcomes. (6) Just as importantly, no social consensus exists about the values that should determine which outcomes in fact serve the child's best interests. Mnookin famously described the challenge, "Deciding what is best for a child poses a question no less ultimate than the purposes and values of life itself." (7) In the absence of either reliable predictive tools or a social consensus about what is good for children, Mnookin argued, the best-interests standard in fact does not provide meaningful guidance, thereby leaving judges to decide cases in accordance with their own instincts and values. (8)

After exposing the vast indeterminacy of the best-interests standard, Professor Mnookin explored the implications of this analysis in different categories of disputes. He identified two very different judicial functions in the adjudication of child-custody cases--child protection and private dispute resolution--and argued that they must be distinguished and subject to different legal standards. (9) On both pragmatic and philosophical grounds, Mnookin argued that when the state intervenes to remove a child from parental custody, decisions should not be based on the discretionary best-interests standard. Instead he proposed a narrow standard that requires proof by the government of actual harm to the child of continued parental custody. (10)

In the context of private dispute resolution, Professor Mnookin ultimately concluded that no superior alternative to the best-interests standard is available--despite his devastating critique of its indeterminacy. (11) To bring some degree of determinacy to these disputes, he recommended what he called "intermediate rules," (12) which include a preference for awarding custody to an adult who is the child's psychological parent over one who is a stranger to the child, and a preference for biological or "natural" parents over other adults, so long as the biological parent also has a psychological bond to the child. (13) Although Mnookin acknowledged that his intermediate rules resolve few cases, he concluded that no more determinate general custody rule, based on gender or wealth, for example, is satisfactory. …

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