THE “WINNER‐LOSER SYNDROME’

• Date: 01 July 1995
• Author: Robert L. McWhinney
• Published date: 01 July 1995
• DOI: http://doi.org/10.1111/j.174-1617.1995.tb00372.x

THE

‘WINNER-LOSER SYNDROME”

Changing

Fashions

in

the

Determination

of

Child

“Custody”

Robert

L.

Mcwhinney

The

purpose of this paper

is

to outline some of the historical

antecedents-in psychotherapy

and

family btothepresent state ofchild custody determination, Certain problems with the current

approach to custody disputes. which some have called the “winner-loser syndrome,” are

ident8ed; and a newer approach, referred

to

as the “parenting plan” modeL

is

discussed

There is fashion even in the resolution of child custody disputes, and not

surprisingly we often mistake the latest word for the final word. Yet the

accepted standards of today will just

as

certainly be tomorrow’s relics

as

yesterday’s norms have become today’s outmoded practice. Moreover, the

fashion in custody determination appears to be changing more frequently

now,

so

that what is correct today probably

has

a half-life of only a few years,

instead of centuries or decades,

as

was previously the case.

Over the years, the defining criterion of child custody determination

has

been based on radically different principles. The principle that, as a man, the

father had a rightful claim to the custody of his child,

as

he did to his other

property, prevailed for centuries. It was finally superseded by the “tender

years” doctrine,

in

which the development of the child was viewed

as

necessarily and exclusively dependent upon the emotional relationship be-

tween the mother and the child. More recently, the principle of “the best

interests of the child” has become the defining criterion.

In family law, then, the principle for custody determination shifted from

the child

as

the physical property of the father to the child

as

the psychological

property of the mother, and then currently to the child

as

legal entity

in

his

or her own right. It

is

probably not unreasonable to assume that each of the

principles for the determination of child custody was the most suitable one

for its time, given the received social, psychological, and legal opinion of the

day.

Just

as

the criterion of custody determination has undergone dramatic

change, shifting the inherent right from the father to the mother to the child,

Author’s

Note:

This paper was presenred in Toronto on November

11,

1993,

at the Special

Lectures

of

the Law Society of Upper

Canada,

the proceedings

of

which were published

by

Carswell in

1994.

FAMILY

AND

CONCILIATION

COURTS

REVIEW,

Vol.

33

No.

3,

July

1995

298-307

8

1995

Sagepublications,

Inc.

298