JUDGES’ KNOWLEDGE OF KEY CHILD DEVELOPMENT CONCEPTS RELATED TO CUSTODY AND PLACEMENT DECISIONS

• Date: 01 December 1979
• DOI: http://doi.org/10.1111/j.174-1617.1979.tb00807.x
• Author: Patrick C. McKenry,Philip B. Gordon,Don W. Rapp
• Published date: 01 December 1979

JUDGES' KNOWLEDGE

OF

KEY CHILD DEVELOPMENT CONCEPTS

RELATED TO CUSTODY AND PLACEMENT DECISIONS

Philip

6.

Gordon*, Don

W.

Rapp"' and Patrick

C.

McKenry"""

I

NTRO

D

UCTI

o

N

Recent family legal literature has been filled

with controversy concerning decisions regarding

the placement and custody of children. The di-

mensions

of

the debate are not inconsequential

when one considers the number of children in-

volved. Although the birth rate is declining, an

increasing number of children are being

in-

volved in divorce; sixty percent of all divorces

involve children under

18

years of age (Norton

&

Glick,

1976).

The concern for these increasing number

of children of divorce and for their adjustment

to

new familial structures is reflected by con-

comitant increases of articles

in

professional

journals of family, mental health, and develop-

mental disciplines. Most of these articles report

the effects of divorce-related stress on the devel-

opmental and psychosocial maturation of the

children involved (Derdeyn,

1977,

Kelly

&

Wallerstein,

1974, 1975;

McDermott,

1968,

1970;

McDermott el al.,

1978;

Wallerstein

&

Kelly,

1976).

TWO

VIEWS

OF

PLACEMENT AND

CUSTODY LAW

Where natural parents are the parties to a

custody action,

it

is widely agreed ,that the

so

called "best interest"

will

rule. But, when

a

"strangers" party is involved, many states relin-

quish their consideration of "best interest" and

adhere to the "natural right" of parenthood (Le-

vine,

1967).

The "natural rights

of

parents,"

often referred to as

parens patriae,

compels the

courts to award custody of the child

to

the bio-

'Doctoral Candidate, Family Relations and Human Devel-

opment, The Ohio State University, Columbus,

Ohio

4321

0;

Formerly, Domestic Relations Officer, Family Re-

lations Div., Superior Court

of

Connecticut.

"Professor, Home and Family Life, Florida State Universi-

ty,

Tallahassee, Florida 3621

2.

**Assistant Professor, Family Relations and Human Devel-

opment, The Ohio State University, Columbus,

Ohio

43210.

logical parent(s) unless the parent(s) is proven

unfit (Levine,

1967).

The courts

in

these cases

are often adhering rigidly to the words of the

legislature. The advocates

of

the "natural

rights" doctrine base their claims on tradition

and reason founded on the concepts of econom-

ics, inheritance, and probate as well as their

consequences and costs for society.

In

states where the

parens patriae

policy

is eschewed, whether or not a nonparent is

involved, the decision is based on the "best

interests" doctrine. Ideally, the "best interest

doctrine" is concerned

with

the promotion of

satisfactory development of tha child (Levine,

1967).

The "best interest" section of the Uni-

form Marriage and Divorce Act (UMDA) states

the principle

in

terms

of

determining the child's

need and the nature of the child's relationship

with the parents. Far too often, and perhaps be-

cause of a lack of understanding of child devel-

opment principles, this tenet has been misinter-

preted (Freud, Goldstein,

&

Solnit,

1973;

Katz,

1966).

In

a survey of one state's judges (John-

son,

1976),

42

percent of the judges contended

that there was

no

need for investigative units

to assist in determining the "best interest"

placement of a child in custody cases. Forty-four

percent answered

in

the affirmative, stating

a

need for such a unit. The consensus

of

what

constitutes the best interests of the child, includ-

ing

the child as a separately represented party

in proceedings

of

custody decisions, too often

is interpreted only as meaning physical and fi-

nancial needs (Benedek, Del Campo,

&

Bene-

dek,

1977;

Wilkerson,

1973).

DEVELOPMENTAL STAGES

AND

THE

LAW

State laws,

in

making the distinction be-

tween child and adult, assume the right to inter-

fere

in

a child's life, and to assure that each

child

will

have an adult who

will

assume the

responsibility for the child's development

in

psy-

chological, as well as physical and social areas,

in

essence a "parent" (Freud, Goldstein,

81

Sol-

41

CONCILIATION COURTS REVIEW

/

VOLUME 17, NUMBER

3

/

DECEMBER 1979