Dividing the Child: Social and Legal Dilemmas of Custody.

• Author: Teitelbaum, Lee E.

By Eleanor E. Maccoby and Robert H. Mnookin. Cambridge: Harvard University Press. 1992. Pp. xi, 369. $39.95.

INTRODUCTION

What we do not know about divorce and its effects would fill a large bookshelf Dividing the Child, the fortunate collaboration of one of this country's finest psychologists, Eleanor Maccoby,(1) and one of its finest academic lawyers, Robert Mnookin,(2) fills an important space on that shelf.

The importance of empirical research on social and economic patterns associated with divorce and child custody cannot easily be overstated. We have, for several decades, been engaged in massive social experimentation. Divorce, once limited to instances of grave marital fault, is now readily available and will affect one half of all those who married in 1970.(3) As one consequence, approximately one half of all the children born to couples married in the 1970s will find themselves in unmarried, usually mother-headed, households for at least some time, after which, because of remarriage, many will live in yet different homes from those they first knew. Their parents' situation will also alter dramatically, with respect to each other and to the children.

While everyone has assumed that marital dissolution entails significant social and economic changes for divorced parents and their children, little real knowledge concerning the meaning of those changes has informed the various waves of experimentation as they have surged through legislative halls. To be sure, social scientists have conducted a few empirical studies. Lenore Weitzman's research on child custody and the economic sequelae of divorce(4) and the work of Judith Wallerstein, Mavis Hetherington, and their colleagues on postdivorce parenting and the adjustment of children are perhaps the most familiar examples.(5) Necessarily, however, they provide only partial perspectives on a large social question: Weitzman's study is primarily concerned with outcomes and little with dynamics; Wallerstein and Hetherington focus primarily on child adjustment in relatively small populations. Maccoby and Mnookin's study, in contrast, deals with a large population and provides new information on the patterns of parenting that develop from separation through the early postdivorce years and on the processes by which those patterns develop.

I will direct much of this review to Maccoby and Mnookin's findings because they are important. However, a discussion of their research method precedes that summary and analysis, and some questions about their interpretation of the data follow.

Even moderately extensive review of a research method will not be everyone's cup of tea. However, that investment seems worthwhile because the design of Dividing the Child differs so dramatically from much other research in family law and because that difference is important. The decline of moral discourse in family law observed by Carl Schneider(6) parallels a rising emphasis on empirical claims.(7) Commentators on family law now justify its rules, not by declaring that they are "right" in themselves according to religious or other moral constructs, but by reliance on their instrumental value. Take, for example, child custody laws. Until perhaps fifteen years ago, commentators widely agreed that wise policy included a preference for maternal custody and disfavor or prohibition of joint and divided custodial arrangements.(8) Recent explanations for that policy have largely been empirical in tone. The importance of continuity of care to appropriate child development called for placement of children with the parent with whom he had formed the strongest bond. Typically, that parent was the mother. This emphasis also justified disfavoring joint and divided custody because those arrangements threatened the stable living arrangements and emotional ties necessary to the young child's development.

These hypotheses are, of course, plausible on their faces. They have, however, fallen out of favor -- particularly, as we will see, in California(9) -- and been replaced by contrary or different but equally instrumental assumptions. Today, laws privileging maternal custody are thought to ignore the contributions fathers can make to child care and, by imprisoning mothers in traditional role assignments, to deny women the social and economic opportunities enjoyed by men. Joint custody is now permitted or formally regarded as preferable in many jurisdictions.(10) Proponents of this change have denied the importance of continuity within a household and urged that shared responsibility will encourage both parents to retain significant relationships with their children.

These later claims, like their predecessors, rest on essentially empirical justifications. Valid and reliable social research is essential to choosing among rules which claim to do -- rather than be -- good. While some good work has been done, much has been less than excellent and some is very poor. Accordingly, a brief examination of what makes Dividing the Child valuable, and the limits associated even with good research, is warranted.

A word about interpretation of the results of this research also seems called for. The authors, for good reasons, take the "gendering" of custody and other awards upon divorce as a major focus. In doing so, they adopt one version of gender equality: a view that emphasizes the even distribution of burdens and particularly of custodial responsibilities and opportunities. In describing the results of Dividing the Child, I will follow that approach as well. It is important to note, however, that this version of gender equality is not the only way to understand that principle. Some feminists argue powerfully that equalization of custodial responsibilities is in fact unequal for women who have carried out "mothering" responsibilities prior to divorce and now find their activities and their commitments ignored or minimized.(11) The tension between the two interpretations of gender equity will become acute as we go along.

1. THE RESEARCH METHOD

   1. The Research Setting and Focus

      Seemingly inevitably, Maccoby and Mnookin's research was conducted in California. There are good practical and theoretical reasons for their having done so. Both authors were at Stanford when they conducted this research, and, as the authors explain, California is fairly believed to be "in the vanguard" of divorce law reform (p. 9). It adopted the first entirely no-fault divorce law in 1969, rejected the traditional preference for maternal custody in 1972, initiated a preference for joint parental custody in 1979, and mandated mediation of custody disputes in 1981 (p. 9).

      As is true of any reform effort, these modifications sought to remedy evils associated with traditional divorce law. Legislators intended to minimize the conflict associated with termination of marital relations and the reordering of social relations within the family through the abandonment of fault-based divorce and the use of mediation for custodial issues. They rejected the traditional presumption in favor of maternal custody in order to "encourage greater equity between mothers and fathers, both with respect to child-rearing and in the workplace" (p. 10). Similarly, the policy favoring joint custody seeks to engage both parents in caring for their children after divorce on the assumption that continued substantial relations with both parents will be valuable for children and parents. The interests of children will be served by arrangements that do not entail the relegation of one parent, usually the father, to the status of a "noncustodian" and risk his estrangement. Arrangements that recognize paternal interest and capacity to participate actively in childrearing also serve the interests of fathers who wish a continuing relationship with their children and the interests of mothers who can escape exclusive child care responsibilities that have the effect of impairing their own professional and personal development.

      Other less remarkable features of California law point in the same direction: most notably, the adoption of specific guidelines, now required in all jurisdictions, for determining child-support levels.(12) These guidelines seek to provide certainty and thereby minimize conflict in the determination of child-support awards and, less clearly, aim to provide greater support for children of divorce.

      Many commentators and legislators espouse the goals associated with California's reform of divorce law, and some states have adopted its strategies, usually in part. If other states follow California's lead -- if it is indeed "in the vanguard" -- research in California will provide a basis for assessing what reform has wrought and for predicting the experiences other states will encounter. Of course, research in this setting, if generalizable, might also provide valuable information to less advanced jurisdictions as they consider following California's lead.(13)

   2. The Research Design

      The difficulties of conducting reliable research in connection with domestic relations are familiar and well documented. Many studies involve small samples(14) and often specialized populations.(15) Well-educated white families provide the usual focus for research,(16) and father-or joint-custody families rarely appear. Researchers have rarely conducted studies of divorced families over time,(17) nor do they often use multiple sources of information about important questions.(18)

      Maccoby and Mnookin do not claim to provide the perfect research setting, but their design is far more sophisticated and reliable than those of most existing studies.(19) Their choice of design follows their belief that divorce is a dynamic process, taking shape over a series of stages.

      Given this assumption, it is plainly important to collect information about divorcing couples at the point of separation, when they divorce, and after divorce. Accordingly, the authors adopted a limited longitudinal...