Does Parental Autonomy Require Equal Custody at Divorce

• Author: Margaret F. Brinig
• Position: William G. Hammond Professor, Associate Dean for Faculty Development, University of Iowa College of Law
• Pages: 1345-1378

Page 1345

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 ß 107.179,³Page 1346 which refers cases in which the parties cannot agree on joint custody to mediation, and by ß 107.105,⁴ which requires the court to considerPage 1347 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 thatPage 1348 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 thePage 1349 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 isPage 1350 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 MostPage 1351 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.¹²Page 1352 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 nineteenPage 1353 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:

Virginia law, like that of probably every State in the Union, requires the court to put the child's interest first. The Supreme Court of Appeals of Virginia has stated this policy with unmistakable clarity: "In Virginia, we have established the rule that the welfare of the infant is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate." Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948).

Unfortunately, experience has shown that the question of custody, so vital to a child's happiness and well-being, frequently cannot be left to the discretion of parents. This is particularly true where, as here, the estrangement of husband and wife beclouds parental judgment with emotion and prejudice.¹⁶

Consistent with the third party and intrafamily distinction made previously, the Ford Court noted the difference between cases in which outside litigants sought to intrude in matters of family privacy: "All of the Virginia cases discussed by the South Carolina court, however, involved purely private controversies which private litigants can settle, and none involved the custody of children where the public interest is strong."¹⁷

In those cases involving only custody at divorce-in other words, between the two parents themselves-May v. Anderson,¹⁸ Palmore v. Sidoti¹⁹ and Elk Grove Sch. Dist. v. Newdow²⁰ stand out because the Court necessarily became involved. In each of these, the Court intervened only because there was a constitutional prohibition against what the lower court had done. In Palmore, the lower court made a custody determination based on the race of the child's step-parent. In May v. Anderson the court determined there was a constitutionally-based jurisdictional defect where the husband was given custody where the court did not have personal jurisdiction over the wife.²¹ Finally, in Newdow the Court determined that the father,Page 1354 who did not have legal custody over the child in question under a California decision could not challenge the Pledge of Allegiance on her behalf, so the Court ultimately declined to answer the substantive First Amendment question. Otherwise, in all three opinions the Court implied it would not get involved. The Newdow Court, in fact, directly disclaimed the power to second-guess the California court's determination of the underlying custody matter,²² and deferred to the Eleventh Circuit's interpretation of California law.²³ The opinion states:

One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations. Long ago we observed that '[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.'Page 1355 So strong is our deference to state law in this area that we have recognized a 'domestic relations exception' that 'divests the federal courts of power to issue divorce, alimony, and child custody decrees.' We have also acknowledged that it might be appropriate for the federal courts to decline to hear a case involving 'elements of the domestic relationship,' even when divorce, alimony, or child custody is not strictly at issue:

This would be so when a case presents 'difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.' Such might well be the case if a federal suit was filed prior to effectuation of a divorce, alimony, or child custody decree, and the suit depended on a determination of the status of the parties.

Thus, while rare instances arise in which it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.²⁴

The general substantive custody law of each state would seem exactly such a "delicate issue," so long as not explicitly based upon race, as in Palmore, or gender, as in the alimony case of Orr v. Orr.²⁵ The matters of custody remain firmly subjects of state domestic law.

The earlier case of May v. Anderson²⁶ illustrates both the importance of custody and the individual state's interest in children. A husband and wife married in Wisconsin, agreed when they separated in 1946 that the wife should take the children to Ohio to think things over.²⁷ When she decided not to return, her husband filed for divorce and custody in Wisconsin; the wife was served in Ohio.²⁸ She never took part in the Wisconsin proceedings and her husband was granted not only the divorce (concededly valid), but also custody; the wife received visitation.²⁹ After some years under this arrangement, the husband took the children to Ohio to visit thePage 1356 wife where she subsequently refused to return them. The husband's habeas corpus petition was ultimately unsuccessful, with the...