Why Oksana Grigorieva couldn't get a court to bar Mel Gibson from seeing their child.

What women really think about news, politics, and culture.
July 20 2010 11:14 AM

Why Does Mel Gibson Still Get To See His Daughter?

It's an unintended consequence of gender-neutral family laws.

Mel Gibson. Click image to expand.
Mel Gibson.

Last Thursday, Oksana Grigorieva tried to get a Los Angeles family court to bar Mel Gibson from contact with the couple's infant daughter, Lucia. She failed. Gibson was reportedly awarded weekday visitation and one overnight visit per week with the baby, against a vivid backdrop of volatility. The case has involved restraining orders (on both sides), press leaks (from both sides), accusations of physical abuse, and, last week, a stream of recordings allegedly demonstrating, among other things, Gibson's threats of violence. Why is Gibson allowed unsupervised visits with a baby after we've all heard the snarled, "I'll put you in a fucking rose garden … you understand that?"

It's an unintended consequence of gender-neutral family laws, enacted in many states in the second half of the 20th century. For generations, states defaulted to granting mothers custody of minor children. Then, as feminist mothers and participatory fathers began to reimagine parenting roles, states began to adopt laws that focused less on gender. Policymakers across the country agreed that it was in the best interest of children to have "frequent and continuing contact with both parents," who ideally "share the rights and responsibilities of child rearing" as California custody law states. The American Academy of Matrimonial Lawyers supports this now-standard idea, propounding in its model for a parenting plan that noncustodial fathers ought to have liberal overnight visitation with their children. Custody judges are charged with determining what's in the "best interest of the child" when deciding how to support—or whether to depart from—that general policy goal. Legally, Gibson doesn't have to show he should be allowed to see his daughter alone. It's Grigorieva's burden to show he shouldn't, and she hasn't proven that yet because the court is still investigating her allegations.

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The leaked tapes and a photo contain claims and documentation that Gibson punched her in the face while she was holding Lucia, and she's said to be introducing photographic evidence of his physical abuse. But before considering a history of abuse, courts may require extensive corroboration that it actually took place. Though the Los Angeles Sheriff's Department has opened a domestic violence investigation in the Gibson matter, and detectives are working to determine the authenticity of the tapes, they remain unverified.

In addition, Gibson's soon-to-be-ex-wife Robyn Gibson reportedly submitted an affidavit in the case last week, in which she's said to have sworn that Gibson never hurt her or their seven children during the more than 28 years the couple was married. Given the rigorous standards courts are supposed to apply when deciding whether to tax someone with a history of violence, and an affidavit like Robyn Gibson's in the context of an as-yet-unproved allegation of abuse that relies in part on as-yet-unauthenticated recordings, it's not hard to see why the balance tipped in favor of keeping Gibson's visitation schedule with Lucia liberal.

But maybe in light of the rest of Gibson's history, the judge's decision was too liberal. Would it have been such a stretch to propose reining in his visits with his daughter pending the investigation into his alleged abuse? Would it really hurt Lucia? Once the investigations into the domestic violence claim and into the authenticity of the recordings are concluded and the court makes a determination about Lucia's safety around Gibson, he'll be awarded whatever visitation the court deems appropriate; that's what will happen, and that's how it should be. The controversy here involves a temporary order in an ongoing proceeding, in the context of an allegation that may have merit and may not—so the challenge is how to proceed justly and in the best interests of the child, who, in this case, is an infant.

Gender-neutral custody laws are great and proper. Codifying the broad scope of who, in theory, makes an acceptable custodial parent necessarily accompanies respect for working mothers (since we can't claim that, as a group, we're the only people fit to care for our children even as we demand to be taken seriously at the office). The problem with the way the courts engage these laws—when a parent of either gender presents a possible danger to a child—is that zealous legal enforcement of the biological bond can take the place of common sense. In this high-stakes round of "he said, she said," the least harmful road to take might be one paved with a little more caution when considering Gibson's access to his daughter.

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