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Forms of exclusion in child custody law
Forms of Exclusion in Child Custody Law Carol S. Bruch Martin Luther King, Jr. School of Law, University of California, Davis
This article examines how and to what degree child custody law curtails contact with children by parents who exhibit socially undesirable behavior. It briefly reviews the historical development of custody law, noting the ways in which changing social judgments have shaped legal doctrine. Current custody law is then examined from the same perspective, revealing that similar forces continue to affect the content, form, and consequences of child custody law. Finally, the article identifies increasing normative pressures, supported by recent findings from the behavioral sciences, that favor maintaining a child's contact with its natural family. The article concludes that the degree to which this development will effectively supplant more traditional efforts to ostracize some family members remains to be seen.
~TRODUCTION ustody law consists of rules and decisions concerning the inclusion or exclusion of family members. In some areas, exclusionary rules reflect societal disapprobation of the person who is unwillingly cut off. This article deals with an area of family law where social judgments about acceptable behavior have greatly influenced legal judgments. During the past century and a half these social judgments have been affected by the relevant state of scientific knowledge. Formerly religion and property law were primary factors in shaping concepts of justice and fairness in family law. Darwin's ideas and Mendel's findings concerning human genetic endowment and data collected since played a part in producing new laws that recognized a mother's caretaker role, especially as to young children. During the current century, insights gained by psychology and ethology concerning child development contributed further to a reassessment of custody law.
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Received September 14-16, 1984; revised March 19, 1986. Address reprintrequests to: Carol S. Bruch, Professor of Law, Martin Luther King, Jr. School of Law, University of California, Davis, C A 95616.
Ethology and Sociobiology 7:339-352 (1986) © Elsevier Science Publishing Co., Inc., 1986 52 Vanderbilt Ave., New York, New York 10017
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In this article I first discuss ostracism (loosely defined as exclusion due to social disapproval) in postdivorce custody law, then turn to other aspects of custody law that reflect social and legal forms of exclusion. This article reflects m y familiarity with family law, but not any specialized training or knowledge in p s y c h o l o g y , sociology, or the biological sciences. I will, nevertheless, f r o m time to time point to legal changes that m a y well have been influenced by d e v e l o p m e n t s in the biobehavioral sciences.
POSTDIVORCE
CUSTODY
CONTESTS
To what extent is ostracism, broadly defined, manifested in interparental custody disputes? Historically, c u s t o d y awards in contested cases meant inclusion of one parent in the continuing care of the child and virtually complete exclusion of the other. The choice o f one parent or the other as custodian was made on highly formal, rigid grounds. F o r m a n y centuries, fathers were automatically granted custody, a rule rooted in the R o m a n l a w ' s patria potestas, which " g a v e the father a p o w e r of life and death o v e r his children."~ The father's corollary p r o p e r t y rights included the right to " s e l l " a child. 2 Some interesting restraints on the paternal p o w e r to inflict death were imposed, however, even before the practice was redefined as murder in the time of Constantine. U n d e r Hadrian, for example, a father w h o had killed his son while hunting " w a s punished by deportation to an island" and "stigmatised as exercising the right of a r o b b e r rather than the right of a f a t h e r , " even though the son had committed adultery with his s t e p - m o t h e r ) The p o w e r to sell or pledge o n e ' s child was also restricted. As summarized by an English text on R o m a n law: These details illustrate the gradual progress of a rational conception of the position of parent and child. At first, the father is despot or owner; he has all the essential rights of ownership, the fight to use the son's services, the fight to part with them, the fight to destroy; but gradually those rights are limited; the father ceases to be the proprietor, he becomes the natural protector and guardian of his children. Such was the tendency of Roman Law, although, as appears from the latest law, it never went so far in the direction of giving independence to the child, as is now considered necessary in all civilized nations. 4 These words, written in 1876, signal a distancing from R o m a n law and self-satisfaction that is p e r h a p s misleading. It was not until the famous case t 1 W. Blackstone, Commentaries on the Laws of England 451 (G. Shanswood ed. 1868); see W. Hunter, A Systemic and Historical Exposition of Roman Law in the Order of a Code 43, 45 (1876). 2 W. Buckland, A Text-Book of Roman Law from Augustus to Justinian 103-04 (1921); W. Hunter, supra note 1, at 46-47. 3 W. Hunter, supra note 1, at 46. 4 Id. at 47.
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of 1817 involving the poet Percy Shelley that an English court first refused custody to a father over his objection. 5 (The result in Shelley's case, which arose after his estranged wife's death, was prompted by the judge's distaste for the poet's atheism and marital infidelity.) Even visitation rights were not granted to mothers until the early 19th century, when the British Infants Custody Act, 1839, 2 & 3 Vict., c. 54, provided this right and introduced the doctrine of "tender years," authorizing custody awards to mothers of children until age 7. 6 In 1873, The British Act was extended to permit maternal custody until age 16. 7 American developments were similar, although the tender years doctrine favoring mothers of young children developed more rapidly. Initially, however, the American doctrine was not applied to children beyond nursing age and maternal visitation was not guaranteed, s In an 1878 case, for example, a mother who was seen as responsible for the marital separation was held not entitled to visitation. 9 The limited gains under case law were so distressing to women that equal custody and guardianship laws became important goals of the women's rights movement that began in the 1840's. 1o This pressure brought only limited statutory reforms. Nevertheless, gradually the "tender years" doctrine and the "best interests of the child" test for custody determination became the standards applied by judges. These changes were supported by a separation of family functions along gender lines that accompanied industrialization: " m e n ' s work" took them outside the home and "women's work" became the tasks of home and family. As child care was relegated to women, the propriety of maternal custody was assumed and a gradual displacement of the rules favoring fathers was supported by a growing conviction that maternal custody was demanded by nature. 11 For many years, custody decisions were overtly controlled by moral considerations that were given legal force. For example, at various times and places divorce was granted only for relief from marital wrongs and custody was awarded only to the "innocent" spouse. Proven adultery accordingly often barred a custody award. Not surprisingly, however, where the 5 See Shelly v. Westbrooke, 37 Eng. Reports 850 (Ch. 1817). Fuller details are provided in Foster & Freed, Life With Father: 1981, 11 Family Law Quarterly 321,325 n. 21 (1978), which also discusses limitations on a father's authority under the earlier English law. Id. at 325-26. 6 Foster & Freed, supra note 5, at 326; Comment, Joint Custody in Louisiana, 43 Louisiana Law Review 85, 86 n. 6 (1982). 7 British Infants Custody Act, 1873, 36 & 37 Vict., c. 12. 8 Comment, supra note 6, at 86 n. 7. 9 Latham v. Latham, 71 Va. (30 Gratt) 307 (1878).
io Grossberg, Who Gets the Child? Custody, Guardianship, and the Rise of a Judicial Patriarchy in Nineteenth-Century America, 9 Feminist Studies 235,250 (1983). H Derdeyn, Child Custody Contests in Historical Perspective, 133 American Journal o f Psychiatry 1369, 1372 (1976); see Foster & Freed, supra note 5, at 320-30; Ex Parte Devine, 398 So. 2d 686, 688-91 (Ala. 1981).
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rule was less rigid, the lesser social disapproval of masculine infidelity was sometimes reflected in custody dispositions. An 1854 opinion of the Georgia Supreme Court put it clearly. Affirming a custody award to a father whose wife claimed she was forced to seek refuge with another man because of her husband's cruelty and lack of financial support, the court ruled that the mother's adultery offset the usual maternal preference. Although "there may be no difference in the sins of the man and woman who violate the laws of chastity," the court reasoned, "in the opinion of society it is otherwise." Because a man who committed adultery would not necessarily lose the respect of his community, his children would not necessarily be excluded by "decent people"; they might accordingly yet be reared as good citizens. However, a woman who violated her marriage vows would inevitably sink into "utter and irredeemable ruin, where her associations are with the vulgar, the vile, and the depraved. If her children be with her, their character must be, more or less, influenced and formed by the circumstances which surround them." The ostracism that would be visited on the mother and her children by the morally upright of the community would be so disadvantageous to her children that paternal custody was called for, the court concluded.12 Similar forces shaped the law of Louisiana, ~3 the one state falling heir to the French legal tradition. Under the law in effect from 1808 to 1970, the permanent custody award, in accord with that tradition, was to be given to the (innocent) spouse who obtained the separation or divorce. The AngloAmerican influence was also felt, however, and from 1800 to 1888 paternal custody pending trial was the rule unless there were "strong reasons to deprive him of it." In 1880 the presumption was reversed, giving the mother automatic temporary custody.14 In fact, according to one commentator, over the years permanent awards in Louisiana also reflected the gradual shift from fathers' to mothers' rights despite the Code's fault-based rule. ~5 A procedural device that may have aided this movement reveals again the degree to which general social values concerning placement have been capable of influencing legal dispositions. Until the middle of the 20th century, the Louisiana Civil Code required " a family meeting to give the judge advice and counsel in many situations involving the rights of minors. ''16 The recommendations of such family meetings sometimes provided the basis for custody decisions that deviated from the statutory scheme in accord with increased social acceptance of maternal custody. 17 12 Lindsey v. Lin dsey, 14 Ga. 657, 660 (1854); see also Grossberg, supra note 10, at 237-38; Foster & Freed, supra note 5, at 327-28. 13Comment, supra note 6, at 87. ~4 Id. at 87 & nn. 15 & 16. 15Id. at 87-88. ~6 Id. at 88 n. 18. 17Id. at 88.
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In recent years, further shifts have taken place. First, with heightened sensitivity to gender discrimination, the maternal preference rule (mostly directly expressed in the tender years doctrine) gave way to a "best interests of the child" test. ~s Neutral on its face, in application courts have generally granted maternal custody subject to paternal visitation rights under this rule. 19 Because mothers continue to perform most child rearing functions even when both parents are employed outside the home, however, it is difficult to know the degree of prejudice underlying current judicial custody decisions. As in earlier times, parental behavior that is the subject of strong social disapproval continues to affect custody dispositions under this most recent rubric. The cases described below, for example, have deprived the primary caretaking parent of custody when she openly cohabitated, sought to move out of state to find better professional opportunities (a sanction apparently not applied to custodial fathers), was engaged in lesbian behavior, or married a man of a different race than the child's father. Because of shifting social patterns, however, the range of disabling behavior has become more narrow. 20 The moral disapprobation of postdivorce maternal cohabitation is reminiscent of earlier condemnation of maternal adultery. A 1979 Illinois Supreme Court opinion, for example, approved a custody change from mother to father on the sole ground of the mother's open cohabitation. 2~ The court reversed an appellate court opinion which had held that the trial court could not "impose its own standards . . . and infer, without any evidence in the record, that [the mother's cohabitation] was detrimental to the welfare of the children and in and of itself sufficient to disqualify her as the custodian of the children. ''22 The state supreme court's opinion is interesting in two respects. First, it concluded that the decision to change custody was justified because the mother's open cohabitation constituted a misdemeanor under Illinois law and that the "relevant standards of conduct are expressed in the [state's] s t a t u t e s . . . ' 2 3 Secondly, the cohabitation that deprived the mother of her daughters' custody did not prevent the court from ordering the children's overnight weekend visits in her home, suggesting a punitive motive rather than a genuine concern with the children's exposure to cohabitation. Perhaps, however, the court's decision itself was meant to instruct the girls in morality. Such reasoning was employed more than 150 years earlier when ~s Id. at 90-91; Derdeyn, supra note 11, at 1373; Foster & Freed, supra note 5, at 332-34. ~9 Weitzman & Dixon, Child Custody Awards: Legal Standards and Empirical Patterns for Child Custody, Support and Visitation After Divorce, 12 University o f California o f Davis Law Review 471,502-05 (1979). 2o See Fischer, Mothers Living Apart From Their Children, 32 Family Relations, 351 (1983). 21 Jarrett v. Jarrett, 78 I11.2d 337,400 N.E.2d 421 (1979). 22 Jarrett v. Jarrett, 64 I11, App. 3d 932,--, 382 N.E.2d 12, 16 (1978). 23 78 Iil. 2d at - - , 400 N.E.2d at 423.
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an 1816 Pennsylvania decision removed two daughters from their mother's custody because of her adultery and subsequent attempted marriage to her lover. " A t the present moment," the court reasoned, the girls " m a y not reflect upon it, but soon they will, and when they inquire why it was that they were separated from their mother, they will be taught, as far as our opinion can teach them, that in good fortune or bad, sickness or in health, in happiness or in misery, the marriage contract, unless dissolved by the law of the country, is sacred and inviolable."24 In 1983 similar judicial disapproval of maternal postdivorce behavior removed a 4-year-old Louisiana girl from her mother's custody 2 years after the initial custody, award. The mother, an attorney, had accepted a post with the National Labor Relations Board in Washington, D.C. The trial judge labeled the mother a busy, self-centered woman "who wants to be a lawyer more than she wants to be a mother." (The case was later resolved when the parents agreed that the child would remain with the mother and the father would become a joint legal custodian.) 25 An Iowa woman who lost custody of her children when she entered law school a few years earlier (a decision later reversed on appeal) 26 may have shared with the Louisiana mother the sensation that she was being given a choice as to which form of exclusion she must suffer--exclusion from job opportunities in the law or exclusion from a custodial role. Such choices appear to be put more frequently to mothers than to fathers. 27 Next, the propriety of a homosexual parent's custody has been repeatedly questioned in recent years. The issue arises most frequently in challenges to custody by a lesbian. A commentator concludes that a major concern of judges in applying the best interests test in this context is that the child" may suffer stigmatization and ridicule on account of the [custodial] parent's homosexuality. ''2s Such social disapprobation was expressly considered as an Ohio trial court gave custody of three young children to paternal grandparents at the time of the parents' divorce. Stating that it was possible that a lesbian mother might be shown fit to rear her children, the court doubted whether that were possible "when she brazenly sets up [lesbian practices] in the home where the kids are to be reared . . . . " The judge wrote, 24 Commonwealth v. Addicks, 2 Serge & Rawle 174 (Pa. 1816). Three years earlier the mother
had been awarded custody despite her conduct because of the girls' tender ages. Commonwealth v. Addicks, 5 Binn. 520 (Pa. 1813). 25 Bezou v. Bezou, Case No. 81-11606, Civ. Dist., Parish of Orleans, New Orleans, La. The trial court opinion, which is unpublished, is quoted in an article describing the case, Career or Child?, 69 American Bar Association Journal 1808 (1983). Appellate decisions that preceded the settlement are found at 431 So. 2d 1055 (La. 1983); 436 So. 2d 592 (La. Ct. App. 1983); 437 So. 2d 285 (La. 1983). 26 Tresnak v. Tresnak, 297 N.W.2d 109 (Iowa 1980). 27 Bodenheimer, Equal Rights, Visitation, and the Right to Move, 1 Fam. Advoc. 18, 19-20 (Summer 1978); Spitzer, Moving and Storage of Post-Divorce Children: Relocation, the Constitution and the Courts, 1985 Arizona State L a w Journal 1. 28 Harris, Lesbian Mother Child Custody: Legal and Psychiatric Aspects, 5 Bulletin o f the American A c a d e m y o f Physician and L a w 75, 81 (1977).
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I think that an overwhelming majority of people in this country strongly disapprove of homosexualism . . . . as indicated by various cant applications [sic] they give to it, such as "queer," "faggot" and so forth, so there can be no question in the court's mind that the conduct revealed here is against the mores of our present-day society, even this society that grows more permissive .29 Data-based support for the c o u r t ' s assessment of public attitudes is supplied by a modest study in which the harshest judgments of childless households fell on h o m o s e x u a l couples. 3° Public disapproval o f parents that is visited upon the children in their care has been confronted by judges in another context, that of interracial relationships. Especially because judges are now sensitive to Constitutional requirements o f racial neutrality under the equal protection clause, they have struggled with perceived social disadvantages for children placed in interracial households. 31 A Florida court recently removed a Caucasian child from her m o t h e r ' s c u s t o d y because the m o t h e r cohabited with, then married, a black man, reasoning that the child would be " m o r e vulnerable to peer pressures [and would] suffer from the social stigmatization that is sure to come. ''32 In 1984, the United States Supreme Court reversed, holding that " t h e reality of private biases and the possible injury they might inflict" could not sustain the trial c o u r t ' s decision. " T h e Constitution cannot control such prejudices but neither can it tolerate t h e m , " stated the unanimous court. "Private biases m a y be outside the reach o f the law, but the law cannot, directly or indirectly, give them effect. ''aa In its effort to use law as a normative force independent of socially based rules o f ostracism, the C o u r t ' s opinion was consistent with a growing body of child c u s t o d y law. In6reasingly, courts have focused on questions of a child's demonstrable needs, holding, contrary to some o f the cases discussed above, that cohabitation, a4 lesbianism, 35 family relocation, a6 or interracial placement a7 is not an automatic ground for removing custody. 29 T o w n e n d v. Townend, 1 Fam. L, Rptr. 2831 (BNA) (March 14, 1975). 3o Fischer, supra note 20, at 352. 3~ See, e.g., Commonwealthex rel. Lucas v. Kreischer, 221 Pa. Super. 196,289 A.2d 202 (1972), rev'd, 450 Pa. 352, 299 A.2d 243 (1973); see also Beazley v. Davis, 292 Nev. 81,545 P.2d 206 (1976). 32 Palmore v. Sidoti, 466 U.S. 429 (1984). 33 Id. at 433. 34 Note, Custody and the Cohabitating Parent, 20 J. Fam. L. 697,710-12 (1981-82). 35 Comment, D o e v. Doe: Destroying the Presumption that Homosexual Parents Are Unfit-The New Burden of Proof, 16 University o f R i c h m o n d L a w R e v i e w 851 (1982); Note, Parent and Child~.M.J.P.v.J.G.P.: An Analysis of the Relevance of Parental Homosexuality in Child Custody Determinations, 35 O k l a h o m a L a w R e v i e w 633,634, 641-42 (1982); 20 J. Fam. L. 771 (1981-82). 36 See generally Bodenheimer, supra note 27; Spitzer, supra note 27. 37 See, e.g., P a l m o r e v. Sidoti, 466 U.S. 429 (1984); Commonwealth ex rel. L a c a s v. Kreischer, 450 Pa. 352,299 A.2d 243 (1973); see also Beazley v. Davis, 292 Nev. 81,545 P.2d 206 (1976).
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A striking example of a court's willingness to grant custody according to its perception of the children's best interests "despite social mores and old-fashioned attitudes" is the 1973 decision of a Nevada trial court to restore custody of four girls to "their former mother, and now the father image," who had undergone a sex change and remarried. The judge noted, "Although it strikes at my personal beliefs and opinions, which I have held for many years, I am convinced that Mark Randall [their former mother] is the better parent for these girls . . . . -3s In related litigation, an appellate court in Colorado reached the s a m e c o n c l u s i o n . 39 And, in two other areas, strong affirmative statements have been made favoring inclusion of all family members rather than exclusion of some. The first concerns state, national, and international efforts to curtail child snatching. 4° Here, one parent attempts to exclude the other from all contact with the child, not by forcing that parent to leave the community but by fleeing instead with the child. 4~ The new legal rules are designed to force the absconding parent to return to the home community to resolve custody matters, enabling the victimized parent to have a full and fair opportunity to influence the custody decision. The second recent area of legislative attention concerns joint custody. In contrast to the traditional rules granting first fathers, then mothers, wide or exclusive control over the child after divorce, these laws foster the continued involvement of both parents in the child's postdivorce life. 42 In both of these areas, current distaste with the perceived unfairness of emotionally based exclusions of family members is complemented by recent findings of mental health research that emphasize a child's need for continuity in relationships. 43 An interesting question for investigation would be the degree to which these legal rules prescribing continued involvement can succeed if strong emotional antipathies accompany family breakdown.** Because interparental custody decisions rarely totally exclude one parent from contact with a child, this discussion of postdivorce custody law has dealt, in the main, with partial exclusion--that is, a decision that a parent 3a Randall v. Christian, No. 32964, 1st Dist. Nev. (Nov. 14, 1973), reprinted in H. Krause,
Family Law: Cases, Comments and Questions 783-85 (2d ed. 1983). 39 Christian v. Randall, 33 Colo. App. 129, 516 P.2d 132 (1973). 4o See generally Bruch, Neue Ansiitze im Internationalem Privatrecht: Das interlokale und internationale elterliche Sorgerecht, in Internationales Privatrecht, Internationales Wirtschaftsrecht (405) (Carl Heymanns Verlag, K61n 1985). 41 See generally Terr, Child Snatching: A New Epidemic of an Ancient Malady, 103 Journal o f Pediatrics 151 (1983). 42 See Steinman, Joint Custody: What We Know, What We Have Yet to Learn, and the Judicial and Legislative Implications, 16 University o f California o f Davis Law Review 739 (1983). 43 Committee on the Family of the Group for the Advancement of Psychiatry, New Trends in Child Custody Determinations 57-83 (1980).
44 See Bruch, Making Visitation Work: Dual Parenting Orders, 1 Fam. Advoc. 22 (Summer 1979).
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is to become a "visiting" (noncustodial) parent rather than a primary (custodial) caretaker. In the several specific areas addressed below, exclusion may have a more absolute meaning. In each area, however, the same two concerns for continuity in relationships and avoidance of arbitrary exclusion have had an impact.
INVOLUNTARY TERMINATION
OF PARENTAL RIGHTS
The most dramatic coerced exclusion of a family member in the custody context occurs when parental rights are terminated absolutely. This happens in extreme cases only, under conditions set by state statutory law. Typical grounds for termination include nonculpable dependency situations, such as a physically or mentally ill parent's long-term incapacity to provide care, but more frequently provide relief from parental neglect or abuse. In any termination case, the law seeks to protect children from a seriously harmful environment. The consequences, however, are not merely a shift of the child from one home to another. Rather, a total break is made with the parent whose rights have been terminated. This occurs whether the child remains in the care of the other natural parent or is placed with third parties for adoption or foster care. Because of the extreme consequences of termination, various safeguards against arbitrariness have developed. A recent United States Supreme Court case, for example, holds that the Constitution's due process clause mandates at least a "clear and convincing evidence" standard of proof in termination cases. 45 This standard, while less than the "beyond a reasonable doubt" test of criminal law, is more stringent than the "preponderence of the evidence" standard applicable in most civil cases. By statute and under at least one state constitution, independent representation may be given to the child, on the reasoning that the parents and any involved social service agency do not necessarily reflect the child's interests in the litigation.46 And, under some states' statutory laws, an indigent parent whose parental rights are at issue may have a right to courtappointed counsel. 47 The federal constitution may also mandate this protection for indigent parents in some cases, but not invariably. 48 These statutes and cases balance competing interests. On one hand, a child's welfare is endangered to the extent that protections granted a parent make it difficult to prove actually existing grounds for termination. On the 45 Santosky v. Kramer, 455 U.S. 745 (1982).
46 See, e.g., Cal. Civ. Code sec. 237.5(a) (West 1982): New Jersey Div. o f Youth and Family Services v. Wandell, 155 N.J. Super. 302, 383 A.2d 711 (1978). 47 E.g., Cal. Civ. Code see. 237.5(b) (West 1982).
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4a Lassiter v. Dept. o f Social Services, 452 U.S. 18 (1981); Besharov, Terminating Parental Rights: The Indigent Parent's Right to Counsel After Lassiter v. North Carolina, 15 Family Law Quarterly 205 (1981).
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other hand, the law seeks to honor familial diversity and privacy (that is, decrease opportunities of ostracism) by providing an arena in which a pare n t ' s f r e e d o m of action is protected; this is done by attempting to regulate only clearly harmful action and by allocating burdens of p r o o f so that doubts are resolved in f a v o r of the parent. What specific f o r m s of parental action are so seriously disfavored that they are believed to justify the total exclusion of a parent from a child's life? In California, the list includes a b a n d o n m e n t and cases of dependency, abuse, or neglect that have not been ameliorated within 1 year after a child is placed under the c o u r t ' s supervision if return to the family would be detrimental to the child and an i m p r o v e d family life remains unlikely. 49 Neglect includes morally unacceptable behavior, that is, "neglect, cruelty, depravity or physical abuse o f . . . either [parent]" rendering the p a r e n t ' s h o m e an "unfit place."s° Such language, which clearly c o n t e m p l a t e s removing a child from the care of a p e r s o n w h o does not m e e t generally accepted social standards, is extraordinarily vague. Yet it has survived Constitutional attacks under the due process rubric, which requires that a person be put on fairly specific notice as to b e h a v i o r subject to s a n c t i o n s : 1 The reason is simply put: some behavior is generally understood to be so unacceptable that it m a y be prohibited without a m o r e specific statute. The courts conclude that a detailed list of possible transgressions justifying the termination of parental rights would, of necessity, be underinclusive. Yet serious danger to a child might result if a court w e r e unable to act. Because there is great societal consensus on the harmful nature of e x t r e m e cases, the balance is struck in f a v o r of fairly loose regulatory language, constrained by the procedural protections detailed a b o v e : 2 Current views of a child's needs give rise to two sometimes conflicting tensions in the termination field. Courts are understandably hesitant to impose such a draconian step as a complete severance of parental ties; this reluctance is heightened by a conviction that children generally benefit from continued contact with a parent, even if that parent is far f r o m i d e a l : 3 Pulling in the other direction when, realistically speaking, satisfactory parental custody is unlikely to eventuate, is a conviction that children are damaged by
49 Cal. Civ. Code sec. 232 (West Supp. 1986). In some cases of severe abuse of very young children, no waiting period is required. Id. 5o Cal. Welf. & Inst. Code sec. 300(d) (West Supp. 1986). 5t In re Robert P., 61 Cal. App. 3d 310, 319, 132 Cal. Rptr. 5, 10-11 (lst Dist. 1976), appeal dismissed, 431 U.S. 911 (1976); see also State of Oregon v. McMaster, 259 Or. 291,486 P.2d 567 (1971); H. Krause, supra note 38, at 1070; but see Alsager v. District Court, 545 F.2d 1137 (8th Cir. 1976). 52 See Katz, Freeing Children for Permanent Placement Through a Model Act, 12 Family Law Quarterly 203,211-15 (Fall 1978). 53 Wald, State Intervention on Behalf of "Neglected" Children: A Search for Realistic Standards, 27 Stanford Law Review 985,993-94, 1004 (1975).
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indefinite stays in foster care and need instead a permanent placement with an opportunity to develop substitute parental ties. 54 This predicament is forced by our model of adoption as the legal creation of an exclusive parent-child relationship that totally replaces a severed natural one. 55
ADOPTION When the matter is viewed from various perspectives, adoption as practiced in the United States entails an absolute exclusion of several family members, an exclusion that is frequently coerced. Following a voluntary placement, for example, the child may well feel ostracized by the parents who "gave him away." Does this sense of involuntary exclusion play a role in the later efforts of many adopted children to locate their birth parents ?56 Additionally, to the extent that the mother of a nonmarital child--i.e., a child born out of wedlock--consents to the child's adoption (whether by a stepparent or strangers) without consulting the father, he may well feel ostracized from his parental role. (His ability to veto the adoption is of varying dimensions under federal constitutional and state statutory grounds. Although he is increasingly being treated on an equal footing with the child's mother, especially if he has formed a relationship with the child, a palpable disparity remains. 57) Next, other family members--aunts, uncles and grandparents--will also be totally cut off from the adopted child in most cases. Finally, although the wound is self-inflicted, parents who consent to their children's adoption, whether by a stepparent or another couple, are equally cut off from their children's futures, a condition that is doubtlessly painful for many of them. Because of the recent emphasis on continuity of parenting figures, suggestions have been made that would permit continued visitation by natural family members following a permanent placement or adoption of the child.58 This alternative would enhance permanent new ties for the child in cases where, realistically speaking, natural parents cannot be expected to provide adequate primary care and yet total curtailment of natural family--child 34 Mnookin, Foster Care--In Whose Best Interest?, 43 Harvard Education Review 599, 609, 622-25,633-35 (1973). 55 Derdeyn, Rogoff & Williams, Alternatives to Absolute Termination of Parental Rights After Long-Term Foster Care, 31 Vanderbilt Law Review 1165, 1189 (1978). 56 See generally, Oakley, Sociobiology and the Law, in Man, Law and Modern Forms of Life 43 (E. Bulygin et al. eds., D. Reidei, Dordrecht [Law and Philosophy Library Series]) (1985); Bodenheimer, New Trends and Requirements in Adoption Law and Proposals for Legislative Change, 49 Southern California Law Review 10, 96-98 (1975). 37 H. Krause, supra note 38, at 825-33. 5s Derdeyn, Rogoff & Williams, supra note 55, at 1188-91; Comment, Grandparents' Statutory Visitation Rights and the Rights of Adoptive Parents, 49 Brooklyn Law Review 149 (1982).
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contact appears undesirable. Recent reforms in some states authorize grandparents to receive visitation rights in special circumstances following the adoption of their natural grandchildren) 9 And the development of a new guardianship form to replace stepparent adoptions has been suggested to provide stability and a new financial caretaker subject, however, to visitation rights of the absent natural parent. 6° These pressures, in other words, seek to accomplish permanency for the child's benefit without imposing exclusion except where contact with former family members is demonstrably harmful to the child.
ILLEGITIMACY Many termination of parental rights and adoption cases involve nonmarital children. Historically strong public disapproval has been visited upon these children, and they have been excluded legally from many of the rights and privileges accorded marital children. Over the past 20 years, however, these legal distinctions have been increasingly obliterated. 61 Although United States Supreme Court cases provide a frequently wavering line, their overall movement in the direction of equal treatment for nonmarital children is clear. And the promulgation in 1973 of the Uniform Parentage Act, since adopted in 10 states, reflects a similar movement in statutory reform. Indeed, the Act goes beyond case law to extend more of the benefits of married fatherhood to another oftenostracized group, unmarried fathers. Concern for nonmarital children has also aided these men under a 1981 decision of the Ohio Supreme Court. 62 Reasoning that marital children are provided the benefit of a custody award to whichever parent best suits their needs, the court concluded that nonmarital children would be unconstitutionally discriminated against if their fathers were not similarly awarded custody whenever that result would be in the children's best interests. Each of these developments recognizes that children have been unfairly punished in the past for their parents' misbehavior. In the social arena, however, increased public acceptance of nonmarital cohabitation does not yet appear to extend to full acceptance of nonmarital childbearing or childrearing. 63 Although nonmarital children who remain in 59 Comment, supra note 58. Bodenheimer, supra note 56, at 44-47; see also R. Frank, Grenzen der Adoption 68-98 (1978). 61 H. Krause, supra note 38, at 816-25. 62 In re Byrd, 66 Ohio St. 2d 334, 421 N.E.2d 1284 (1981); ! 1 Cap. University Law Review 347 (1982). 63 But see Somerville, Birth Technology, Parenting and "Deviance", 5 International Journal of Law and Psychiatry 123, 131 (1982), citing D. Yankelovich, New Rules: Searching For SelfFulfillment in a World Turned Upside Down (1981), for the proposition that "[I]n 1979, 75% of Americans surveyed agreed that it is morally acceptable to be single and have children."
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the care of their natural parents do not suffer the feelings of parental rejection experienced by adopted children, an interesting British study suggests that they nevertheless may suffer more seriously overall, probably due to the general social disapproval they incur. 64 In a comparison of legitimate and illegitimate children at 7 years of age, the 1971 study concluded that the illegitimate children who had been adopted were indistinguishable from the legitimate children in social and educational measures, whereas the illegitimate children who had remained with natural family members lagged seriously behind. Economic differences alone did not explain the dramatic differences. Similarly, alleviation of legal exclusion is likely to provide but a partial answer to these children's negative experiences with ostracism.
THE NEW BIRTH TECHNOLOGY A final area of custody law entails express exclusionary rules. Who may or may not become a parent by any but natural means is frequently regulated by statute. Access to artificial insemination, for example, has been directly restricted in some places. In others, only the children of married women who conceive by this method with the express consent of their husbands will be recognized as legitimate. In an era of burgeoning scientific innovation in the techniques of reproduction, hard questions are being put to courts and legislatures concerning who, if anyone, should be excluded from parenthood through artificial m e a n s Y Once again, decisions relating to ostracism will be part and parcel of our evolving custody law.
CONCLUSION As stated in the introduction, custody rules and decisions concerning child custody during the last century and a half have to a great degree tracked social attitudes towards parental rights and responsibilities. With increased emphasis on the benefits to children of continuity in relationships and increased reluctance to sanction discriminatory treatment, normative legal rules are now developing that require continuing contact with all family members despite family breakdown. This development has been influenced by the role psychology has played in shaping the social judgments these laws express. The degree to which these developments will provide workable norms remains to be seen: continuing tension can be expected between emo64 E. Creilin, M. KellmerPringle & P. West, Born Illegitimate:Socialand EducationalImplications (Nat'l Foundationfor EducationalResearch in England & Wales 1971). 65 Somerville, supra note 63, at 127-44; Warnock Committee, Report of the Committeeof Inquiry into Human Fertilizationand Embryology(England 1984).
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tional and social desires to exclude some adults from family interaction, intellectual and doctrinal pressures towards full and fair participation for all, and biobehavioral insights concerning the predictable consequences of prevailing or proposed legal rules. The author expresses her thanks to Judith Braun and Kayla Gillan for their intelligent research assistance.
This article examines how and to what degree child custody law curtails contact with children by parents who exhibit socially undesirable behavior. It briefly reviews the historical development of custody law, noting the ways in which changing social judgments have shaped legal doctrine. Current custody law is then examined from the same perspective, revealing that similar forces continue to affect the content, form, and consequences of child custody law. Finally, the article identifies increasing normative pressures, supported by recent findings from the behavioral sciences, that favor maintaining a child's contact with its natural family. The article concludes that the degree to which this development will effectively supplant more traditional efforts to ostracize some family members remains to be seen.
~TRODUCTION ustody law consists of rules and decisions concerning the inclusion or exclusion of family members. In some areas, exclusionary rules reflect societal disapprobation of the person who is unwillingly cut off. This article deals with an area of family law where social judgments about acceptable behavior have greatly influenced legal judgments. During the past century and a half these social judgments have been affected by the relevant state of scientific knowledge. Formerly religion and property law were primary factors in shaping concepts of justice and fairness in family law. Darwin's ideas and Mendel's findings concerning human genetic endowment and data collected since played a part in producing new laws that recognized a mother's caretaker role, especially as to young children. During the current century, insights gained by psychology and ethology concerning child development contributed further to a reassessment of custody law.
C
Received September 14-16, 1984; revised March 19, 1986. Address reprintrequests to: Carol S. Bruch, Professor of Law, Martin Luther King, Jr. School of Law, University of California, Davis, C A 95616.
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In this article I first discuss ostracism (loosely defined as exclusion due to social disapproval) in postdivorce custody law, then turn to other aspects of custody law that reflect social and legal forms of exclusion. This article reflects m y familiarity with family law, but not any specialized training or knowledge in p s y c h o l o g y , sociology, or the biological sciences. I will, nevertheless, f r o m time to time point to legal changes that m a y well have been influenced by d e v e l o p m e n t s in the biobehavioral sciences.
POSTDIVORCE
CUSTODY
CONTESTS
To what extent is ostracism, broadly defined, manifested in interparental custody disputes? Historically, c u s t o d y awards in contested cases meant inclusion of one parent in the continuing care of the child and virtually complete exclusion of the other. The choice o f one parent or the other as custodian was made on highly formal, rigid grounds. F o r m a n y centuries, fathers were automatically granted custody, a rule rooted in the R o m a n l a w ' s patria potestas, which " g a v e the father a p o w e r of life and death o v e r his children."~ The father's corollary p r o p e r t y rights included the right to " s e l l " a child. 2 Some interesting restraints on the paternal p o w e r to inflict death were imposed, however, even before the practice was redefined as murder in the time of Constantine. U n d e r Hadrian, for example, a father w h o had killed his son while hunting " w a s punished by deportation to an island" and "stigmatised as exercising the right of a r o b b e r rather than the right of a f a t h e r , " even though the son had committed adultery with his s t e p - m o t h e r ) The p o w e r to sell or pledge o n e ' s child was also restricted. As summarized by an English text on R o m a n law: These details illustrate the gradual progress of a rational conception of the position of parent and child. At first, the father is despot or owner; he has all the essential rights of ownership, the fight to use the son's services, the fight to part with them, the fight to destroy; but gradually those rights are limited; the father ceases to be the proprietor, he becomes the natural protector and guardian of his children. Such was the tendency of Roman Law, although, as appears from the latest law, it never went so far in the direction of giving independence to the child, as is now considered necessary in all civilized nations. 4 These words, written in 1876, signal a distancing from R o m a n law and self-satisfaction that is p e r h a p s misleading. It was not until the famous case t 1 W. Blackstone, Commentaries on the Laws of England 451 (G. Shanswood ed. 1868); see W. Hunter, A Systemic and Historical Exposition of Roman Law in the Order of a Code 43, 45 (1876). 2 W. Buckland, A Text-Book of Roman Law from Augustus to Justinian 103-04 (1921); W. Hunter, supra note 1, at 46-47. 3 W. Hunter, supra note 1, at 46. 4 Id. at 47.
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of 1817 involving the poet Percy Shelley that an English court first refused custody to a father over his objection. 5 (The result in Shelley's case, which arose after his estranged wife's death, was prompted by the judge's distaste for the poet's atheism and marital infidelity.) Even visitation rights were not granted to mothers until the early 19th century, when the British Infants Custody Act, 1839, 2 & 3 Vict., c. 54, provided this right and introduced the doctrine of "tender years," authorizing custody awards to mothers of children until age 7. 6 In 1873, The British Act was extended to permit maternal custody until age 16. 7 American developments were similar, although the tender years doctrine favoring mothers of young children developed more rapidly. Initially, however, the American doctrine was not applied to children beyond nursing age and maternal visitation was not guaranteed, s In an 1878 case, for example, a mother who was seen as responsible for the marital separation was held not entitled to visitation. 9 The limited gains under case law were so distressing to women that equal custody and guardianship laws became important goals of the women's rights movement that began in the 1840's. 1o This pressure brought only limited statutory reforms. Nevertheless, gradually the "tender years" doctrine and the "best interests of the child" test for custody determination became the standards applied by judges. These changes were supported by a separation of family functions along gender lines that accompanied industrialization: " m e n ' s work" took them outside the home and "women's work" became the tasks of home and family. As child care was relegated to women, the propriety of maternal custody was assumed and a gradual displacement of the rules favoring fathers was supported by a growing conviction that maternal custody was demanded by nature. 11 For many years, custody decisions were overtly controlled by moral considerations that were given legal force. For example, at various times and places divorce was granted only for relief from marital wrongs and custody was awarded only to the "innocent" spouse. Proven adultery accordingly often barred a custody award. Not surprisingly, however, where the 5 See Shelly v. Westbrooke, 37 Eng. Reports 850 (Ch. 1817). Fuller details are provided in Foster & Freed, Life With Father: 1981, 11 Family Law Quarterly 321,325 n. 21 (1978), which also discusses limitations on a father's authority under the earlier English law. Id. at 325-26. 6 Foster & Freed, supra note 5, at 326; Comment, Joint Custody in Louisiana, 43 Louisiana Law Review 85, 86 n. 6 (1982). 7 British Infants Custody Act, 1873, 36 & 37 Vict., c. 12. 8 Comment, supra note 6, at 86 n. 7. 9 Latham v. Latham, 71 Va. (30 Gratt) 307 (1878).
io Grossberg, Who Gets the Child? Custody, Guardianship, and the Rise of a Judicial Patriarchy in Nineteenth-Century America, 9 Feminist Studies 235,250 (1983). H Derdeyn, Child Custody Contests in Historical Perspective, 133 American Journal o f Psychiatry 1369, 1372 (1976); see Foster & Freed, supra note 5, at 320-30; Ex Parte Devine, 398 So. 2d 686, 688-91 (Ala. 1981).
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rule was less rigid, the lesser social disapproval of masculine infidelity was sometimes reflected in custody dispositions. An 1854 opinion of the Georgia Supreme Court put it clearly. Affirming a custody award to a father whose wife claimed she was forced to seek refuge with another man because of her husband's cruelty and lack of financial support, the court ruled that the mother's adultery offset the usual maternal preference. Although "there may be no difference in the sins of the man and woman who violate the laws of chastity," the court reasoned, "in the opinion of society it is otherwise." Because a man who committed adultery would not necessarily lose the respect of his community, his children would not necessarily be excluded by "decent people"; they might accordingly yet be reared as good citizens. However, a woman who violated her marriage vows would inevitably sink into "utter and irredeemable ruin, where her associations are with the vulgar, the vile, and the depraved. If her children be with her, their character must be, more or less, influenced and formed by the circumstances which surround them." The ostracism that would be visited on the mother and her children by the morally upright of the community would be so disadvantageous to her children that paternal custody was called for, the court concluded.12 Similar forces shaped the law of Louisiana, ~3 the one state falling heir to the French legal tradition. Under the law in effect from 1808 to 1970, the permanent custody award, in accord with that tradition, was to be given to the (innocent) spouse who obtained the separation or divorce. The AngloAmerican influence was also felt, however, and from 1800 to 1888 paternal custody pending trial was the rule unless there were "strong reasons to deprive him of it." In 1880 the presumption was reversed, giving the mother automatic temporary custody.14 In fact, according to one commentator, over the years permanent awards in Louisiana also reflected the gradual shift from fathers' to mothers' rights despite the Code's fault-based rule. ~5 A procedural device that may have aided this movement reveals again the degree to which general social values concerning placement have been capable of influencing legal dispositions. Until the middle of the 20th century, the Louisiana Civil Code required " a family meeting to give the judge advice and counsel in many situations involving the rights of minors. ''16 The recommendations of such family meetings sometimes provided the basis for custody decisions that deviated from the statutory scheme in accord with increased social acceptance of maternal custody. 17 12 Lindsey v. Lin dsey, 14 Ga. 657, 660 (1854); see also Grossberg, supra note 10, at 237-38; Foster & Freed, supra note 5, at 327-28. 13Comment, supra note 6, at 87. ~4 Id. at 87 & nn. 15 & 16. 15Id. at 87-88. ~6 Id. at 88 n. 18. 17Id. at 88.
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In recent years, further shifts have taken place. First, with heightened sensitivity to gender discrimination, the maternal preference rule (mostly directly expressed in the tender years doctrine) gave way to a "best interests of the child" test. ~s Neutral on its face, in application courts have generally granted maternal custody subject to paternal visitation rights under this rule. 19 Because mothers continue to perform most child rearing functions even when both parents are employed outside the home, however, it is difficult to know the degree of prejudice underlying current judicial custody decisions. As in earlier times, parental behavior that is the subject of strong social disapproval continues to affect custody dispositions under this most recent rubric. The cases described below, for example, have deprived the primary caretaking parent of custody when she openly cohabitated, sought to move out of state to find better professional opportunities (a sanction apparently not applied to custodial fathers), was engaged in lesbian behavior, or married a man of a different race than the child's father. Because of shifting social patterns, however, the range of disabling behavior has become more narrow. 20 The moral disapprobation of postdivorce maternal cohabitation is reminiscent of earlier condemnation of maternal adultery. A 1979 Illinois Supreme Court opinion, for example, approved a custody change from mother to father on the sole ground of the mother's open cohabitation. 2~ The court reversed an appellate court opinion which had held that the trial court could not "impose its own standards . . . and infer, without any evidence in the record, that [the mother's cohabitation] was detrimental to the welfare of the children and in and of itself sufficient to disqualify her as the custodian of the children. ''22 The state supreme court's opinion is interesting in two respects. First, it concluded that the decision to change custody was justified because the mother's open cohabitation constituted a misdemeanor under Illinois law and that the "relevant standards of conduct are expressed in the [state's] s t a t u t e s . . . ' 2 3 Secondly, the cohabitation that deprived the mother of her daughters' custody did not prevent the court from ordering the children's overnight weekend visits in her home, suggesting a punitive motive rather than a genuine concern with the children's exposure to cohabitation. Perhaps, however, the court's decision itself was meant to instruct the girls in morality. Such reasoning was employed more than 150 years earlier when ~s Id. at 90-91; Derdeyn, supra note 11, at 1373; Foster & Freed, supra note 5, at 332-34. ~9 Weitzman & Dixon, Child Custody Awards: Legal Standards and Empirical Patterns for Child Custody, Support and Visitation After Divorce, 12 University o f California o f Davis Law Review 471,502-05 (1979). 2o See Fischer, Mothers Living Apart From Their Children, 32 Family Relations, 351 (1983). 21 Jarrett v. Jarrett, 78 I11.2d 337,400 N.E.2d 421 (1979). 22 Jarrett v. Jarrett, 64 I11, App. 3d 932,--, 382 N.E.2d 12, 16 (1978). 23 78 Iil. 2d at - - , 400 N.E.2d at 423.
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an 1816 Pennsylvania decision removed two daughters from their mother's custody because of her adultery and subsequent attempted marriage to her lover. " A t the present moment," the court reasoned, the girls " m a y not reflect upon it, but soon they will, and when they inquire why it was that they were separated from their mother, they will be taught, as far as our opinion can teach them, that in good fortune or bad, sickness or in health, in happiness or in misery, the marriage contract, unless dissolved by the law of the country, is sacred and inviolable."24 In 1983 similar judicial disapproval of maternal postdivorce behavior removed a 4-year-old Louisiana girl from her mother's custody 2 years after the initial custody, award. The mother, an attorney, had accepted a post with the National Labor Relations Board in Washington, D.C. The trial judge labeled the mother a busy, self-centered woman "who wants to be a lawyer more than she wants to be a mother." (The case was later resolved when the parents agreed that the child would remain with the mother and the father would become a joint legal custodian.) 25 An Iowa woman who lost custody of her children when she entered law school a few years earlier (a decision later reversed on appeal) 26 may have shared with the Louisiana mother the sensation that she was being given a choice as to which form of exclusion she must suffer--exclusion from job opportunities in the law or exclusion from a custodial role. Such choices appear to be put more frequently to mothers than to fathers. 27 Next, the propriety of a homosexual parent's custody has been repeatedly questioned in recent years. The issue arises most frequently in challenges to custody by a lesbian. A commentator concludes that a major concern of judges in applying the best interests test in this context is that the child" may suffer stigmatization and ridicule on account of the [custodial] parent's homosexuality. ''2s Such social disapprobation was expressly considered as an Ohio trial court gave custody of three young children to paternal grandparents at the time of the parents' divorce. Stating that it was possible that a lesbian mother might be shown fit to rear her children, the court doubted whether that were possible "when she brazenly sets up [lesbian practices] in the home where the kids are to be reared . . . . " The judge wrote, 24 Commonwealth v. Addicks, 2 Serge & Rawle 174 (Pa. 1816). Three years earlier the mother
had been awarded custody despite her conduct because of the girls' tender ages. Commonwealth v. Addicks, 5 Binn. 520 (Pa. 1813). 25 Bezou v. Bezou, Case No. 81-11606, Civ. Dist., Parish of Orleans, New Orleans, La. The trial court opinion, which is unpublished, is quoted in an article describing the case, Career or Child?, 69 American Bar Association Journal 1808 (1983). Appellate decisions that preceded the settlement are found at 431 So. 2d 1055 (La. 1983); 436 So. 2d 592 (La. Ct. App. 1983); 437 So. 2d 285 (La. 1983). 26 Tresnak v. Tresnak, 297 N.W.2d 109 (Iowa 1980). 27 Bodenheimer, Equal Rights, Visitation, and the Right to Move, 1 Fam. Advoc. 18, 19-20 (Summer 1978); Spitzer, Moving and Storage of Post-Divorce Children: Relocation, the Constitution and the Courts, 1985 Arizona State L a w Journal 1. 28 Harris, Lesbian Mother Child Custody: Legal and Psychiatric Aspects, 5 Bulletin o f the American A c a d e m y o f Physician and L a w 75, 81 (1977).
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I think that an overwhelming majority of people in this country strongly disapprove of homosexualism . . . . as indicated by various cant applications [sic] they give to it, such as "queer," "faggot" and so forth, so there can be no question in the court's mind that the conduct revealed here is against the mores of our present-day society, even this society that grows more permissive .29 Data-based support for the c o u r t ' s assessment of public attitudes is supplied by a modest study in which the harshest judgments of childless households fell on h o m o s e x u a l couples. 3° Public disapproval o f parents that is visited upon the children in their care has been confronted by judges in another context, that of interracial relationships. Especially because judges are now sensitive to Constitutional requirements o f racial neutrality under the equal protection clause, they have struggled with perceived social disadvantages for children placed in interracial households. 31 A Florida court recently removed a Caucasian child from her m o t h e r ' s c u s t o d y because the m o t h e r cohabited with, then married, a black man, reasoning that the child would be " m o r e vulnerable to peer pressures [and would] suffer from the social stigmatization that is sure to come. ''32 In 1984, the United States Supreme Court reversed, holding that " t h e reality of private biases and the possible injury they might inflict" could not sustain the trial c o u r t ' s decision. " T h e Constitution cannot control such prejudices but neither can it tolerate t h e m , " stated the unanimous court. "Private biases m a y be outside the reach o f the law, but the law cannot, directly or indirectly, give them effect. ''aa In its effort to use law as a normative force independent of socially based rules o f ostracism, the C o u r t ' s opinion was consistent with a growing body of child c u s t o d y law. In6reasingly, courts have focused on questions of a child's demonstrable needs, holding, contrary to some o f the cases discussed above, that cohabitation, a4 lesbianism, 35 family relocation, a6 or interracial placement a7 is not an automatic ground for removing custody. 29 T o w n e n d v. Townend, 1 Fam. L, Rptr. 2831 (BNA) (March 14, 1975). 3o Fischer, supra note 20, at 352. 3~ See, e.g., Commonwealthex rel. Lucas v. Kreischer, 221 Pa. Super. 196,289 A.2d 202 (1972), rev'd, 450 Pa. 352, 299 A.2d 243 (1973); see also Beazley v. Davis, 292 Nev. 81,545 P.2d 206 (1976). 32 Palmore v. Sidoti, 466 U.S. 429 (1984). 33 Id. at 433. 34 Note, Custody and the Cohabitating Parent, 20 J. Fam. L. 697,710-12 (1981-82). 35 Comment, D o e v. Doe: Destroying the Presumption that Homosexual Parents Are Unfit-The New Burden of Proof, 16 University o f R i c h m o n d L a w R e v i e w 851 (1982); Note, Parent and Child~.M.J.P.v.J.G.P.: An Analysis of the Relevance of Parental Homosexuality in Child Custody Determinations, 35 O k l a h o m a L a w R e v i e w 633,634, 641-42 (1982); 20 J. Fam. L. 771 (1981-82). 36 See generally Bodenheimer, supra note 27; Spitzer, supra note 27. 37 See, e.g., P a l m o r e v. Sidoti, 466 U.S. 429 (1984); Commonwealth ex rel. L a c a s v. Kreischer, 450 Pa. 352,299 A.2d 243 (1973); see also Beazley v. Davis, 292 Nev. 81,545 P.2d 206 (1976).
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A striking example of a court's willingness to grant custody according to its perception of the children's best interests "despite social mores and old-fashioned attitudes" is the 1973 decision of a Nevada trial court to restore custody of four girls to "their former mother, and now the father image," who had undergone a sex change and remarried. The judge noted, "Although it strikes at my personal beliefs and opinions, which I have held for many years, I am convinced that Mark Randall [their former mother] is the better parent for these girls . . . . -3s In related litigation, an appellate court in Colorado reached the s a m e c o n c l u s i o n . 39 And, in two other areas, strong affirmative statements have been made favoring inclusion of all family members rather than exclusion of some. The first concerns state, national, and international efforts to curtail child snatching. 4° Here, one parent attempts to exclude the other from all contact with the child, not by forcing that parent to leave the community but by fleeing instead with the child. 4~ The new legal rules are designed to force the absconding parent to return to the home community to resolve custody matters, enabling the victimized parent to have a full and fair opportunity to influence the custody decision. The second recent area of legislative attention concerns joint custody. In contrast to the traditional rules granting first fathers, then mothers, wide or exclusive control over the child after divorce, these laws foster the continued involvement of both parents in the child's postdivorce life. 42 In both of these areas, current distaste with the perceived unfairness of emotionally based exclusions of family members is complemented by recent findings of mental health research that emphasize a child's need for continuity in relationships. 43 An interesting question for investigation would be the degree to which these legal rules prescribing continued involvement can succeed if strong emotional antipathies accompany family breakdown.** Because interparental custody decisions rarely totally exclude one parent from contact with a child, this discussion of postdivorce custody law has dealt, in the main, with partial exclusion--that is, a decision that a parent 3a Randall v. Christian, No. 32964, 1st Dist. Nev. (Nov. 14, 1973), reprinted in H. Krause,
Family Law: Cases, Comments and Questions 783-85 (2d ed. 1983). 39 Christian v. Randall, 33 Colo. App. 129, 516 P.2d 132 (1973). 4o See generally Bruch, Neue Ansiitze im Internationalem Privatrecht: Das interlokale und internationale elterliche Sorgerecht, in Internationales Privatrecht, Internationales Wirtschaftsrecht (405) (Carl Heymanns Verlag, K61n 1985). 41 See generally Terr, Child Snatching: A New Epidemic of an Ancient Malady, 103 Journal o f Pediatrics 151 (1983). 42 See Steinman, Joint Custody: What We Know, What We Have Yet to Learn, and the Judicial and Legislative Implications, 16 University o f California o f Davis Law Review 739 (1983). 43 Committee on the Family of the Group for the Advancement of Psychiatry, New Trends in Child Custody Determinations 57-83 (1980).
44 See Bruch, Making Visitation Work: Dual Parenting Orders, 1 Fam. Advoc. 22 (Summer 1979).
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is to become a "visiting" (noncustodial) parent rather than a primary (custodial) caretaker. In the several specific areas addressed below, exclusion may have a more absolute meaning. In each area, however, the same two concerns for continuity in relationships and avoidance of arbitrary exclusion have had an impact.
INVOLUNTARY TERMINATION
OF PARENTAL RIGHTS
The most dramatic coerced exclusion of a family member in the custody context occurs when parental rights are terminated absolutely. This happens in extreme cases only, under conditions set by state statutory law. Typical grounds for termination include nonculpable dependency situations, such as a physically or mentally ill parent's long-term incapacity to provide care, but more frequently provide relief from parental neglect or abuse. In any termination case, the law seeks to protect children from a seriously harmful environment. The consequences, however, are not merely a shift of the child from one home to another. Rather, a total break is made with the parent whose rights have been terminated. This occurs whether the child remains in the care of the other natural parent or is placed with third parties for adoption or foster care. Because of the extreme consequences of termination, various safeguards against arbitrariness have developed. A recent United States Supreme Court case, for example, holds that the Constitution's due process clause mandates at least a "clear and convincing evidence" standard of proof in termination cases. 45 This standard, while less than the "beyond a reasonable doubt" test of criminal law, is more stringent than the "preponderence of the evidence" standard applicable in most civil cases. By statute and under at least one state constitution, independent representation may be given to the child, on the reasoning that the parents and any involved social service agency do not necessarily reflect the child's interests in the litigation.46 And, under some states' statutory laws, an indigent parent whose parental rights are at issue may have a right to courtappointed counsel. 47 The federal constitution may also mandate this protection for indigent parents in some cases, but not invariably. 48 These statutes and cases balance competing interests. On one hand, a child's welfare is endangered to the extent that protections granted a parent make it difficult to prove actually existing grounds for termination. On the 45 Santosky v. Kramer, 455 U.S. 745 (1982).
46 See, e.g., Cal. Civ. Code sec. 237.5(a) (West 1982): New Jersey Div. o f Youth and Family Services v. Wandell, 155 N.J. Super. 302, 383 A.2d 711 (1978). 47 E.g., Cal. Civ. Code see. 237.5(b) (West 1982).
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4a Lassiter v. Dept. o f Social Services, 452 U.S. 18 (1981); Besharov, Terminating Parental Rights: The Indigent Parent's Right to Counsel After Lassiter v. North Carolina, 15 Family Law Quarterly 205 (1981).
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other hand, the law seeks to honor familial diversity and privacy (that is, decrease opportunities of ostracism) by providing an arena in which a pare n t ' s f r e e d o m of action is protected; this is done by attempting to regulate only clearly harmful action and by allocating burdens of p r o o f so that doubts are resolved in f a v o r of the parent. What specific f o r m s of parental action are so seriously disfavored that they are believed to justify the total exclusion of a parent from a child's life? In California, the list includes a b a n d o n m e n t and cases of dependency, abuse, or neglect that have not been ameliorated within 1 year after a child is placed under the c o u r t ' s supervision if return to the family would be detrimental to the child and an i m p r o v e d family life remains unlikely. 49 Neglect includes morally unacceptable behavior, that is, "neglect, cruelty, depravity or physical abuse o f . . . either [parent]" rendering the p a r e n t ' s h o m e an "unfit place."s° Such language, which clearly c o n t e m p l a t e s removing a child from the care of a p e r s o n w h o does not m e e t generally accepted social standards, is extraordinarily vague. Yet it has survived Constitutional attacks under the due process rubric, which requires that a person be put on fairly specific notice as to b e h a v i o r subject to s a n c t i o n s : 1 The reason is simply put: some behavior is generally understood to be so unacceptable that it m a y be prohibited without a m o r e specific statute. The courts conclude that a detailed list of possible transgressions justifying the termination of parental rights would, of necessity, be underinclusive. Yet serious danger to a child might result if a court w e r e unable to act. Because there is great societal consensus on the harmful nature of e x t r e m e cases, the balance is struck in f a v o r of fairly loose regulatory language, constrained by the procedural protections detailed a b o v e : 2 Current views of a child's needs give rise to two sometimes conflicting tensions in the termination field. Courts are understandably hesitant to impose such a draconian step as a complete severance of parental ties; this reluctance is heightened by a conviction that children generally benefit from continued contact with a parent, even if that parent is far f r o m i d e a l : 3 Pulling in the other direction when, realistically speaking, satisfactory parental custody is unlikely to eventuate, is a conviction that children are damaged by
49 Cal. Civ. Code sec. 232 (West Supp. 1986). In some cases of severe abuse of very young children, no waiting period is required. Id. 5o Cal. Welf. & Inst. Code sec. 300(d) (West Supp. 1986). 5t In re Robert P., 61 Cal. App. 3d 310, 319, 132 Cal. Rptr. 5, 10-11 (lst Dist. 1976), appeal dismissed, 431 U.S. 911 (1976); see also State of Oregon v. McMaster, 259 Or. 291,486 P.2d 567 (1971); H. Krause, supra note 38, at 1070; but see Alsager v. District Court, 545 F.2d 1137 (8th Cir. 1976). 52 See Katz, Freeing Children for Permanent Placement Through a Model Act, 12 Family Law Quarterly 203,211-15 (Fall 1978). 53 Wald, State Intervention on Behalf of "Neglected" Children: A Search for Realistic Standards, 27 Stanford Law Review 985,993-94, 1004 (1975).
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indefinite stays in foster care and need instead a permanent placement with an opportunity to develop substitute parental ties. 54 This predicament is forced by our model of adoption as the legal creation of an exclusive parent-child relationship that totally replaces a severed natural one. 55
ADOPTION When the matter is viewed from various perspectives, adoption as practiced in the United States entails an absolute exclusion of several family members, an exclusion that is frequently coerced. Following a voluntary placement, for example, the child may well feel ostracized by the parents who "gave him away." Does this sense of involuntary exclusion play a role in the later efforts of many adopted children to locate their birth parents ?56 Additionally, to the extent that the mother of a nonmarital child--i.e., a child born out of wedlock--consents to the child's adoption (whether by a stepparent or strangers) without consulting the father, he may well feel ostracized from his parental role. (His ability to veto the adoption is of varying dimensions under federal constitutional and state statutory grounds. Although he is increasingly being treated on an equal footing with the child's mother, especially if he has formed a relationship with the child, a palpable disparity remains. 57) Next, other family members--aunts, uncles and grandparents--will also be totally cut off from the adopted child in most cases. Finally, although the wound is self-inflicted, parents who consent to their children's adoption, whether by a stepparent or another couple, are equally cut off from their children's futures, a condition that is doubtlessly painful for many of them. Because of the recent emphasis on continuity of parenting figures, suggestions have been made that would permit continued visitation by natural family members following a permanent placement or adoption of the child.58 This alternative would enhance permanent new ties for the child in cases where, realistically speaking, natural parents cannot be expected to provide adequate primary care and yet total curtailment of natural family--child 34 Mnookin, Foster Care--In Whose Best Interest?, 43 Harvard Education Review 599, 609, 622-25,633-35 (1973). 55 Derdeyn, Rogoff & Williams, Alternatives to Absolute Termination of Parental Rights After Long-Term Foster Care, 31 Vanderbilt Law Review 1165, 1189 (1978). 56 See generally, Oakley, Sociobiology and the Law, in Man, Law and Modern Forms of Life 43 (E. Bulygin et al. eds., D. Reidei, Dordrecht [Law and Philosophy Library Series]) (1985); Bodenheimer, New Trends and Requirements in Adoption Law and Proposals for Legislative Change, 49 Southern California Law Review 10, 96-98 (1975). 37 H. Krause, supra note 38, at 825-33. 5s Derdeyn, Rogoff & Williams, supra note 55, at 1188-91; Comment, Grandparents' Statutory Visitation Rights and the Rights of Adoptive Parents, 49 Brooklyn Law Review 149 (1982).
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contact appears undesirable. Recent reforms in some states authorize grandparents to receive visitation rights in special circumstances following the adoption of their natural grandchildren) 9 And the development of a new guardianship form to replace stepparent adoptions has been suggested to provide stability and a new financial caretaker subject, however, to visitation rights of the absent natural parent. 6° These pressures, in other words, seek to accomplish permanency for the child's benefit without imposing exclusion except where contact with former family members is demonstrably harmful to the child.
ILLEGITIMACY Many termination of parental rights and adoption cases involve nonmarital children. Historically strong public disapproval has been visited upon these children, and they have been excluded legally from many of the rights and privileges accorded marital children. Over the past 20 years, however, these legal distinctions have been increasingly obliterated. 61 Although United States Supreme Court cases provide a frequently wavering line, their overall movement in the direction of equal treatment for nonmarital children is clear. And the promulgation in 1973 of the Uniform Parentage Act, since adopted in 10 states, reflects a similar movement in statutory reform. Indeed, the Act goes beyond case law to extend more of the benefits of married fatherhood to another oftenostracized group, unmarried fathers. Concern for nonmarital children has also aided these men under a 1981 decision of the Ohio Supreme Court. 62 Reasoning that marital children are provided the benefit of a custody award to whichever parent best suits their needs, the court concluded that nonmarital children would be unconstitutionally discriminated against if their fathers were not similarly awarded custody whenever that result would be in the children's best interests. Each of these developments recognizes that children have been unfairly punished in the past for their parents' misbehavior. In the social arena, however, increased public acceptance of nonmarital cohabitation does not yet appear to extend to full acceptance of nonmarital childbearing or childrearing. 63 Although nonmarital children who remain in 59 Comment, supra note 58. Bodenheimer, supra note 56, at 44-47; see also R. Frank, Grenzen der Adoption 68-98 (1978). 61 H. Krause, supra note 38, at 816-25. 62 In re Byrd, 66 Ohio St. 2d 334, 421 N.E.2d 1284 (1981); ! 1 Cap. University Law Review 347 (1982). 63 But see Somerville, Birth Technology, Parenting and "Deviance", 5 International Journal of Law and Psychiatry 123, 131 (1982), citing D. Yankelovich, New Rules: Searching For SelfFulfillment in a World Turned Upside Down (1981), for the proposition that "[I]n 1979, 75% of Americans surveyed agreed that it is morally acceptable to be single and have children."
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the care of their natural parents do not suffer the feelings of parental rejection experienced by adopted children, an interesting British study suggests that they nevertheless may suffer more seriously overall, probably due to the general social disapproval they incur. 64 In a comparison of legitimate and illegitimate children at 7 years of age, the 1971 study concluded that the illegitimate children who had been adopted were indistinguishable from the legitimate children in social and educational measures, whereas the illegitimate children who had remained with natural family members lagged seriously behind. Economic differences alone did not explain the dramatic differences. Similarly, alleviation of legal exclusion is likely to provide but a partial answer to these children's negative experiences with ostracism.
THE NEW BIRTH TECHNOLOGY A final area of custody law entails express exclusionary rules. Who may or may not become a parent by any but natural means is frequently regulated by statute. Access to artificial insemination, for example, has been directly restricted in some places. In others, only the children of married women who conceive by this method with the express consent of their husbands will be recognized as legitimate. In an era of burgeoning scientific innovation in the techniques of reproduction, hard questions are being put to courts and legislatures concerning who, if anyone, should be excluded from parenthood through artificial m e a n s Y Once again, decisions relating to ostracism will be part and parcel of our evolving custody law.
CONCLUSION As stated in the introduction, custody rules and decisions concerning child custody during the last century and a half have to a great degree tracked social attitudes towards parental rights and responsibilities. With increased emphasis on the benefits to children of continuity in relationships and increased reluctance to sanction discriminatory treatment, normative legal rules are now developing that require continuing contact with all family members despite family breakdown. This development has been influenced by the role psychology has played in shaping the social judgments these laws express. The degree to which these developments will provide workable norms remains to be seen: continuing tension can be expected between emo64 E. Creilin, M. KellmerPringle & P. West, Born Illegitimate:Socialand EducationalImplications (Nat'l Foundationfor EducationalResearch in England & Wales 1971). 65 Somerville, supra note 63, at 127-44; Warnock Committee, Report of the Committeeof Inquiry into Human Fertilizationand Embryology(England 1984).
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tional and social desires to exclude some adults from family interaction, intellectual and doctrinal pressures towards full and fair participation for all, and biobehavioral insights concerning the predictable consequences of prevailing or proposed legal rules. The author expresses her thanks to Judith Braun and Kayla Gillan for their intelligent research assistance.