Document Type

Article

Publication Date

2014

Keywords

custody disputes, divorce, dispute resolution, mediation

Abstract

This essay, written for a Symposium celebrating the child custody scholarship of Professor Robert Mnookin, examines the close connection between changes in substantive child custody doctrine and changes in custody dispute resolution processes over the past 30 years. Part I of the article explores how the widespread adoption of an unmediated “best interest of the child” standard, and the ensuing rejection of the sole custody paradigm, precipitated a shift from adversarial to non-adversarial resolution of divorce-related parenting disputes. Part II of the essay reverses the direction of the analytic lens and considers how the shift from adversarial to non-adversarial dispute resolution has affected both the substantive legal norms that govern custody contests and the role of law and lawyers more generally in the custody decision-making process. The essay suggests that the shift from adjudication and adversary negotiation to mediation and collaboration as the preferred means of resolving divorce-related parenting disputes has delegalized custody decision-making -- initially by disaggregating the various components of child custody and ultimately by eroding the importance of custody as an essential legal concept in disputes between parents. The primary purpose of the analysis is not to evaluate the desirability of these changes, but to underscore the close connection between changes in substantive legal doctrine and changes in dispute resolution processes.

Journal

77 Law & Contemporary Problems 177 (2014).

Disciplines

Dispute Resolution and Arbitration | Family Law

Recommended Citation

77 Law & Contemporary Problems 177 (2014).