The Tender Years

Cohn and Whitehead

The Tender Years

Cohn and Whitehead

The Tender Years
New books dissected over email.
Feb. 16 1999 2:07 PM

Cohn and Whitehead

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Dear Barbara:

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That was a nice transition into our second book at the end of your last entry. Ever consider a career in editing?

Before I get to Mary Ann Mason's book, though, I want to second one of your thoughts on Deutsch's Having It All. There was indeed something creepy about the way all of those highly professionalized couples discussed child-rearing, as if it were just another activity to schedule in their Day Timers. Children should not be pawns to anybody's political agenda.

Which brings us conveniently enough to Mason's book, The Custody Wars: Who's Fighting for the Rights for Children. (I can do nice transitions, too.) I confess that when I read the title, and noticed that the author was a law professor, I braced myself for the worst: a mind-numbing tome on the finer points of state law, far removed from anything of relevance to actual cases. I could not have been more wrong. (I know, that's twice in two books I've guessed wrong. Maybe I should stick to political prognosticating.) I found the book provocative, thoughtful, and engaging. Best of all, as the title suggests, its primary concern is with the well-being of children, making it the perfect counterpart to Deutsch's book--and something that I suspect will appeal to the child-liberal in both of us.

A quick reprise, for Slate readers: Mason's book is a study in how child custody law has lost sight of children, in a sense coming full circle in an evolution that began in the 19th century, when the law treated children as if they were mere property. Today's law doesn't treat children like property, of course. But, as Mason shows, in striking down the so-called Tender Years Doctrine--which held that young children, in particular, needed nurturing, and strongly favored mothers in custody disputes--legislatures and the courts have put the interests of parents ahead of children's psychological needs. This lack of concern for children manifests itself in all sorts of disturbing ways: the fact that the law now favors shared custody arrangements of dubious value to young children's development; the fact that children lack any formal representation in the courts; the fact that children's own wishes rarely have an impact, even when children are old enough to have such opinions; the fact that biological parents are still routinely favored over stepparents or other family stand-ins who had been primary caregivers; and so on.

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Admittedly, we knew a lot of this already. And I have qualms with her reasoning here and there. But overall, I thought Mason did a very nice job of putting these disparate trends into a single context. I was also impressed that she came up with such specific reform proposals. Mason does not want to restore the Tender Years Doctrine per se--she doesn't believe that children necessarily belong with their mothers over their fathers. But she does suggest we change the law so that it favors "primary parents." In addition, she would also have the law take greater account of children's changing needs as they grow (a 2-year-old may need one stable caregiver, while a 12-year-old could thrive in a joint custody arrangement) and to recognize the contribution of non-biological parents (she'd call them "de facto parents," and see to it that they had formal rights in court proceedings). She'd also create a central family court that provided children with their own, independent representation--and she'd give children's preferences formal recognition under the law.

Of course, it's important to remember that even a plan like this is only going to do so much. The depressing thing about custody disputes--and this comes through in every one of her anecdotes--is that they are almost always messy, hostile, and difficult to sort out. Even a system like the one outlined above would be prone to error. For example, Mason criticizes the standard now prevailing in most states--which calls on judges to rule in the "best interests" of the child--as too vague and open to interpretation. But even more specific criteria are matters of subjective opinion. For example, Mason would have all judges favor parents who have been primary caregivers. This is sensible enough. But what happens when both parents claim to have been the primary caregiver? In one case I covered, this is precisely what happened--and there was widespread disagreement over who was telling truth. In the infamous Michigan day-care case Mason cites, she argues that if the law remained focused on children's needs--as it was in the days of the Tender Years Doctrine--then the mother would have gotten custody, as she should have. It seems to me, however, that this was a case in which the judge made up his mind a certain way, and was determined to make that outcome happen. The law has to be flexible, and yet that very flexibility gives extraordinary leeway to courts and experts. This kind of thing will always happen in divorce. That's why it's so disheartening.

On these matters, I guess, I'm a pessimist at heart. How about you?

Sincerely,

Jonathan

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Jonathan Cohn is executive editor of the
New Republic. Barbara Dafoe Whitehead is the author ofThe Divorce Culture. This week they discussHalving It All: How Equally Shared Parenting Works, by Francine Deutsch, andThe Custody Wars: Who's Fighting for the Rights of Children, by Mary Ann Mason.