Does Parental Autonomy Require Equal Custody at Divorce

Summary

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I. The Constitutional Problem. -II. An Economic Approach. -III. The Effects of Joint Custody. -IV. A Broader Lesson? -V. Tables.

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Does Parental Autonomy Require Equal Custody at Divorce

This article considers the effect of amendments to state divorce laws that strengthen their joint custody preference. It does so in the context of suits by noncustodial parents challenging substantive custody standards not requiring equal custody at divorce. The complaint is that most custody laws, by using a "best interests" standard rather than equally dividing custodial time, violate substantive due process. Further, two states, Iowa and Maine, have recently amended their custody legislation to strongly presume joint physical custody.1

While the Oregon statutes that frame much of the discussion here, like most state laws, do not state an explicit preference for joint custody,2 shared custody is certainly encouraged by § 107.179,3 which refers cases in which the parties cannot agree on joint custody to mediation, and by § 107.105,4 which requires the court to consider awarding custody jointly. In addition, 1997 Oregon legislation noted in its very first section that it was state policy to "[a]ssure minor children . . . frequent and continuing contact with parents who have shown the ability to act in the best interests of the child."5 The legislation has strengthened the power of noncustodial parents. The denial of access to the children would give the right to terminate spousal support, change the parenting plan, or obtain an award for "makeup" visitation.6 The legislative history for the bill shows that it was a compromise between men's rights groups and those concerned about domestic violence.7

After setting out the constitutional problem and describing the legislation in some detail, this article tests the effects of the change in the Oregon statutes. Policy-makers might well want to know how children fare under joint custody as opposed to other possible visitation arrangements. In other words, does the child's best interests, the hallmark of most current statutes, require joint custody? Policy-makers might also question whether the stronger legislative preference really increases joint custody awards. Does its requirement that mediation alternatives be suggested, and in some cases ordered, in fact increase the number of cases that are settled by mediation? Do judges sometimes prescribe mediation in cases that are inappropriate (such as those in which domestic violence orders have been entered)? Do children receive less child support under the new statutory scheme? Is there evidence that the process makes divorce less painful and less expensive? The broader goal here is to suggest that changes in family law, while often made, are seldom systematically assessed. Society needs such accountability, particularly when children are involved. This article shows how it might be done.

I. The Constitutional Problem

The underlying constitutional query is whether the "parents' rights" approach that the Supreme Court has recently found fundamental trumps the "best interests" test states use in custody litigation. If it does, the current statutes are unconstitutional. The challengers posit that only an equal share of physical custody time will satisfy their constitutional right to direct the upbringing and control of their children.8 So far, the answer given by the courts is that, for a variety of reasons, the parental rights must yield to the children's.

For many years, the Supreme Court has opined that parenting is a fundamental right, that is, a right that cannot be significantly diminished or abrogated without a compelling state interest.9 Most of the Court's pronouncements have involved state incursions into the province of the parent,10 or at least non-parent party interference with the family.11 Many of the cases have insisted that decisions about custody be made by state courts because an established "domestic relations" exception to diversity jurisdiction.12 Furthermore, even federal statutes respect the decisions of other states regarding custody.13

The states, however, have taken radically different approaches to family cases dealing with the same subject matter. While Florida has recently decided that a same-sex couple does not have an equal protection claim that will trump a statute prohibiting them from adopting,14 courts in states like New Jersey have found that not allowing such couples to adopt would violate state policies against non-discrimination on the basis of sexual orientation.15

The tradition of deferring to state courts in disputed custody actions began many years ago. For example, in the early nineteen sixties, the Supreme Court decided a case where the parents had been issued conflicting orders by two states, and noted that, left to their own devices, these parents could not make a decision in their child's best interests:

Virgin...

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