Child Custody Issues Paper

Child Custody Issues Effecting American Youth in the 20^th and 21st Century

The harmful effects of child custody disputes on children's well being, either physically or mentally, are hardly in question. When parents are divisive and leveraging to get the upper hand either just to get the children, or just to spite the former partner, the effects upon the children are long lasting and well documented. In spite of this, legal wrangling over parental rights is continuing to engage divorce attorneys all over the country. With the issues surrounding marriage continuing to evolve into ever more diverse formations (children of single mothers, gay and lesbian parents, cohabitation and the children resulting from them, etc.) the likelihood that this field will have any rest in the near future is unlikely. With marriage vows continuing to change according to societies' definition, the ability to make legal decisions about what 'divorce' means become unbelievably difficult. Although this is the current situation and children have and will continue to suffer immensely from biological parental separation, the current trend toward family mediation in custody decisions is a hopeful sign.

Like every pendulum in history, the beginning begins with the opposite case being true. During ancient times (Greek and Roman) children's fate was decided totally by the father who held all of the rights at that time (Saposnek, 1998). Women had few rights and were little more than property under the law, so their contribution to the child's life was thought to be of little importance. It should be noted that although male heirs were important, children themselves held little value before the law as well. Like their mothers, they were property to be dispersed at the will of the court and husband.

This role was not really changed much throughout the middle Ages in Europe, partially due to the harder economic and rural lifestyles of the people, but also due to the high child mortality rate. Children were not even named until their second or third year simply because the likelihood they would survive to the age of five was so small that it was thought that by not naming them, the attachment, and therefore the hurt, would be less upon their death. With the coming of the industrial revolution, better and longer lives, and the dropping of child mortality rates, children, and eventually their mothers as well began to rise in status. Although the father was still the dominant and only real legal power with regard to child custody, women's status with getting suffrage and finally the right to exist free of male sponsorship continued to increase throughout the eighteenth century.

After World War II, things began to move rapidly. With stay-at-home moms and the 'Leave it to Beaver' illusion dominating American society, women were increasingly powerful with regard to child custody matters. "Tender Years" philosophy and 'best needs of the child' theories, already present in court mandated decisions concerning child custody in a divorce at the turn of the century were possibly applicable during the early 20^th century (Saposnek, 1998). These theories began to increasingly lose validity during the 1960's as women's earning power increased, and frequently, in times of economic upheaval, eclipsed that of working class men. As late as 1977, however, these theories still dominated judge's criteria in making decisions in deciding child custody cases. Women not only were able to demand monetary supplements in the form of alimony, but also child support for each child. Fathers were often not allowed to see the children on a regular basis due to proximity to the child and the need many women felt to exert their power over their seemingly more powerful adversary (Garber, 2007). As always it was the children that suffered. To fathers, hopelessly required to pay two incomes to support a child he couldn't see anyway, the thought of just abandoning them would eventually seem the better option.

As the dawn of the 1980's occurred, divorce rates climbed to ever higher levels as women, freed from the financial needs of having a husband, were more willing to leave the whole process and function as single parents, with or without support from the fathers of their children. Adjudication, often the only method used in divorce and child custody cases increasingly left the fate of the children not in the hands of those who loved them but in the hands of two lawyers and their particular board of psychiatrists and therapists whose goal was not to protect the children, but win at all costs the case for their client. As the cost to the children grew and the amount of disputes grew (movies that publicized this issue such as Kramer v. Kramer only served to increase the problem without providing a solution), the toll on the children grew.

At the end of the 80's, the pendulum was beginning to swing back again as fathers rights began to be an issue and women's income earning potential continued to rise. Encouraged by studies and financial concerns, many began to prefer to work out the child custody issues prior to the court dates. With no-fault divorce no longer pointing blame at one side or another as the cause of the divorce, court officials increasingly used the 'well being of the child' as their guideline and the old gender biased system began to decline (Warshak, 2002). Eventually dual custody became more common as couples tried to find ways to minimize the effects on the children and cut down on the costs of highly paid professionals. One unfortunate aspect of this emerging practice of mediation is that the power of economics once more shows itself as more important to divorcing adults than is the welfare of their children. It is a sad commentary on American value systems that this could be a major motivating force for change in this area.

As divorce and remarriage and blended families have become ever more common in the society, childhood becomes increasingly difficult for American youth. Already difficult for children to handle, the post-industrial affluent society of America has created a time period where adolescents in particular are susceptible to the strain caused by separation from one or both of the parents. Changes in friendships and activities, as well as declining grades can point to drug use and/or conflict resolution issues in parental situations. Like it or not, parents have to consider that often, purely by situational circumstance, children are put in the middle and feel responsible for the catastrophe of their parents ending relationships. Personal issues such as attachment disorder, and inability to commit to serious effort toward goals, and a general apathetic approach toward life might be caused by a troubled separation of parents. Of course, similar results might occur if there is much conflict in the home without separation. How much of these educational and generational troubles are caused by divorce and separation alone is still in question. It may well be that because other problems pervade United States society that the resulting effects on a cultures' youth may be too broad in scope to narrowly define their causes. With this in mind, however, mediation as opposed to adjudication is certainly a step in the right direction.

With the evolution of marriage, male/female relationships, economic enfranchisement of women, and the evolution of cultural norms over the last 2000 years, particularly in the last century, the realignment of the methods for sustaining a culture's youth will remain in chaos probably for some time to come. The question is whether or not youth can be saved, and by its preservation a society. The answer will not soon be evident. That parents have taken a step up to their responsibility for the well being of their children is a marked success. Whether it solves all of the problems of youth today is doubtful. Is divorce and remarriage and lack of commitment the result of divorce and remarriage, or are they signs of a broader problem that pervades American society? Conflict negotiation and mediation in divorce is a good step up the line toward the mitigation of those youth problems and should continue to be pushed extensively throughout the United States.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

Garber, Benjamin D (2007).Conceptualizing visitation resistance and refusal in the context of parental conflict, separation, and divorce. Family Court Review. 45/4, 588-599

Saposnek, Donald T (1998). Mediation as a cooperative problem-

solving approach. San Francisco, CA: Jossey-Bass.

 

Warshak, Richard A (2002).Who will be there when I cry in the night?.

Family Court Review. 40,No. 2, 208-219.