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Child Custody and Divorce

The sociological function of law is to resolve disputes in accordance with the dominant values of the
given time and place. Family law in general, and custodial law in particular, demonstrates the impact
of social changeupon legal principles.

Alternative or new legal principles (mutations) appear once a new and strongly held consensus develops.
This is possible due to the eclecticism and remarkable flexibility of the common law, which, as Professor Paul Freund (1961) observed, has legal principles that march in battalions. It is this phenomenon which enables the common law to both change and to remain stable.

Child Custody and Divorce

We are not here concerned with divorce or disolution as such, since custodial disputes may arise within
or outside of matrimonial actions. But it should be noted at the outset that the parties themselves determine custodial and visitation arrangements in over 90% of the cases and that such issues are litigated in but a small fraction of separations and divorces.

Preferences and Presumptions
Due to principles derived from feudalism and religion, the father was the favored custodian of his children at common law. His claim, however, was conditioned upon his moral fitness, and able judges also referred to the best interests of children. Of course, only a few cases reached court and it is likely that the mother often retained custody where her circumstances permitted. It is also probable that, due to family, social and religious pressures, many fathers
relinquished their prerogatives.

If we look behind the common law’s ‘preference for the father in child custody disputes, we find socioeconomic explanations. It was not pure whimsy or tradition. Religion and feudalism combined to make the father “lord and master”” of his own household. Under the feudal system he was protector and guardian of his family. Under the common law property system, he controlled the family’s purse strings.

Upon marriage he acquired most of his wife’s personal property, managed her real estate, and pocketed the profits. The
wife (feme covert) was not a legal person; she could not make contracts, nor sue or be sued in her own name. Moreover,children became “young adults” at age 12, and could be put to work. Divorce, except for peers and the very wealthy theoretically was unobtainable, although there were other escape routes from “holy deadlock” such as annulment or desertion.

By mid-19th century, the industrial revolution, the change in wealth from land to property (tangible and intangible), and the migration to urban centers changed the structure of the family. Married Women’s Property Acts were passed in most states which emancipated (at least in part) wives from their identity crisis.

They achieved legal status, could own and dispose of property, make contracts, and sue and be sued in their own name. Compulsory school attendance laws were enacted, and a few states experimented with child labor laws. The typical household consisted of a breadwinner husband and a homemaker wife and mother, and middle class children were expected to complete high school. The law’s reaction to such significant social and economic change was to adopt as a model the typical household and division of labor. It logically followed that the mother was the preferred custodian for the children and the father, if he wanted to, could get visitation rights.

This was the effect of the “tender years doctrine.” As had been true in the case of the paternal preference, the mother’s entitlement to custody was not absolute. In both cases the claimant had to be a “fit” parent, and especially during the Victorian age that meant moral and sexual orthodoxy. Percy Blysse Shelley, in 1817, lost custody of his and Harriet’s daughters because of his professed atheism and notorious profligacy, and some 62 years later Mary Besant was deprived  of custody because she had publicly espoused birth control. Moral activism was rampant during the 19th century, and only a few persons had heard of Sigmund Freud. Commencing in the 1920s, American custodial law became more concerned about “best interests” and less worried about meting out rewards and punishments. In most states, the mere fact that the husband established a fault ground for divorce no longer qualified him for custody, even though the divorce ground was adultery.

The “tender years doctrine” was applied except where the mother’s immorality was believed to jeopardize the future well-being of the children. As long as most husbands worked outside the home and most wives worked within, the preference for the mother in child custody decisions was functional, and it was backed up by a consensus. The emergence of the new Women’s Movement after World War II and the phenomenal increase in the number of women in the work force changed the 19th century image into an obsolete stereotype. The sexual revolution, the switching of parental roles and division of labor, necessitated some changes in custodial law.

And the law, somewhat reluctantly, gave in to the emerging consensus. Legitimate demands for racial and sexual equality gained a fixed basis in the Equal Protection Clause of the Federal Constitution and E.R.A. amendments to some state constitutions. Egalitarian principles achieved popular acceptance despite difficulties of implementation. Laws that discriminated for as well ‘as against women fell under constitutional challenges. This meant that the “tender years doctrine” was no longer viable as a preference or a presumption.

The current situation in the United States is that, theoretically, fathers and mothers have equal claims to child custody, and the best interests of the child determine the choice. In perhaps 90% of the cases, however, custody is still awarded to the mother and visitation to the father. In part this is because most fathers do not want custody. In some cases, however judges are prejudiced in favor of mothers or against fathers and the “best interests” test is so amorphous that the result may be rationalized. A few judges may privately agree with the Utah court even though they
keep their bias off the record. The Utah court said that it would agree that fathers had an equal claim to child custody once it was established that men could lactate (Arends v. Arends, 1974). Even though the father defeats the mother and prevails only in rare instances, courts are becoming accustomed to paternal claims for sole custody and for joint custody. Such claims no longer are quixiotic.

A Dr. Salk may obtain sole custody (especially where
the children prefer the father), and under proper circumstances
most courts will consider joint custody as
a possibility.
Thus, in response to social change and functional
considerations the pendulum has swung from father
to mother to either or to both. We have reached, or
are reaching, the point where the facts of the individual
case, rather than a presumption or preference,
determine the result.
We have been discussing the law of child custody
thus far in terms of “preferences” rather than “presumptions”
because the latter seems to be too strong
a term where the conflict is between parents and the
claim of either is conditioned on parental fittness.
Where the contest is between a parent and a
“stranger” (meaning any nonparent), however, it is
appropriate to say that there is a presumption favoring
the parent. The stranger must, even today, introduce
strong and convincing proof of paternal unfitness in
order to win a custody dispute against a natural parent.
He must rebut the presumption that a child
belongs with his parent. The mere fact that the child
might be better off with the stranger is insufficient;
there must be proof of abandonment, neglect, or abuse
for the stranger to win.
To phrase it differently, for a stranger to prevail, it
is not enough to show that the child’s best interests
would be served by an award of custody to the stranger.
The legal concept of abandonment, however, permits
some flexibility. If the natural parent is deemed to
have relinquished parental rights voluntarily it may
betantamount to an abandonment. For example, in
the leading New York case of Bennett v. Jeffreys
(1975), a 15-year-old natural mother had placed her
baby with a family friend for 8 years before she demanded
her return. The New York Court of Appeals
held: “[the] State may not deprive a parent of the
custody of a child absent surrender [for adoption],
abandonment, persistent neglect, unfitness or other
like estraordinary circumstances. If any such extraordinary
circumstances are present, the disposition of
custody is influenced or controlled by what is in the best interests of the child” [emphasis supplied]. The
case was remanded to the Family Court for further
hearing while the child stayed with the natural
mother. The testimony of some 26 witnesses over a 4-
week trial resulted in the finding that the child [Gina
Marie] should be returned to the foster mother, but
with liberal visitation privileges for the natural
mother. The record in the extensive hearing established
that while the natural mother met the physical
needs she could not supply the emotional needs of
Gina Marie, who still referred to the foster parent as
“mother” and insisted that she wanted to return
“home” after spending some 15 months with the natural
mother until, at last, there was a final disposition.
In addition to the out-moded maternal preference
and presumption favoring a natural parent over a
stranger, there are additional considerations in child
custody disputes that may be called “factors” which
enter into the court’s determination. Formerly, the
one who prevailed in a divorce case ordinarily got
custody of the children if he or she wanted it. This no
longer is the case, especially where there are no-fault
grounds for divorce.
The wishes of the child regarding custody and visitation
is called the child’s “preference.” At most, the
child’s preference will be considered in the exercise of
the court’s discretion in determining custody and visitation,
and the weight it receives will depend upon
the maturity of the particular child and the circumstances
of the case.
Still another factor is that, where possible, courts
avoid splitting siblings and prefer that they remain in
the same household. Of course, in some cases for
practical reasons this cannot be done. Still another
factor is the court’s inclination to award custody to
the parent who intends to remain in the community
and to deny custody to a parent who plans to move to
another jurisdiction.
Closely related to the factor of geographical location
is the consideration of which parent or contestant is
most cooperative in providing access to the other in
order to maintain an on-going relationship with the
child, including telephonic communication. This factor
is gaining increasing recognition and sometimes is
couched in terms of the child’s right to know and
associate with both parents after the parents separate
or divorce.
Finally, although the proprietary rights of parents
in children are somewhat muted, they still exist. At
its 1982 term, the Supreme Court held that before a
parent could be permanently deprived of his or her
parental rights, abandonment, neglect or unfitness
must be established by clear and convincing evidence
and that a mere preponderance of evidence was not
enough. Exactly what impact this decision may have in contests between a natural parent and a psychological
parent remains to be seen.

Basic Criteria for Decision
Courts depend upon counsel, in large measure, to
develop the facts in a custody dispute. Unfortunately
perhaps, skill and advocacy are influential as to outcome.
Not all lawyers are equal. Not all expert witnesses
are equally articulate and effective. The glib
lawyer or expert witness may be most convincing even
though greater merit is on the other side. Form (of
presentation) as well as substance is important in a
courtroom, in politics, and in most activities of life.
Judges, like academics or psychiatrists, have their
own scales of value and accord different weight to
different factors or criteria. Today, at least in metropolitan
areas, medical or psychiatric evidence is crucial
in the trial of most noncommercial cases. In
custody disputes, as often as not, it is the testimony
ofthe psychiatrist or psychologist that determines the
result. Where impressive experts appear for each side,
they may cancel each other out. Moreover, the testimony
of a court-appointed psychiatrist or psychologist
may be regarded as more “impartial” and hence entitled
to receive greater credibility than the testimony
of a party’s expert.
The ultimate question in most custody cases is what
decision regarding custody and visitation serves the
best interests of the children. All other considerations
are subordinate to that ultimate issue where the contest
is between parents. The difficulty with the “best
interests” rule is that it is so broad and amorphous
that it may encompass any result. It has not been
shown, however, that “the least detrimental alternative”
test would be an improvement, and it too is
largely a matter of subjective judgment. In any event,
the courts still adhere to the “best interests” formulation.
The practical problem is to break up the abstract
“best interests” concept into smaller components. A
court or lawyer having access to expert psychiatric
opinion will be inclined to emphasize the psychological
best interest of the child in question. Heed will be
taken as to which contestant has the closer bond with
the child and the child’s needs as to care, nurture, and
training. To whom does the child turn in case of need?
Which one does the real parenting? The quality as
well as the quantity of time spent with the child may
be significant. The willingness of each to cooperate in
maintaining an on-going meaningful relationship with
the other parent is significant.
Currently, courts are constrained not to get involved
in comparing material advantages or disadvantages
unless it has a bearing on the health of a child. Today, most courts are tolerant of alternative lifestyles, although
prejudice has not been completely eliminated.
Lesbian mothers have been deprived of custody but
perhaps the weight of authority requires some proof
of actual detriment to the child. For example, a New
York court understandably was upset by proof that
the live-in lover of the lesbian mother was constantly
running down the father and was attempting to undermine
his relationship with his children. Illinois,
however, in Jarrett v. Jarret (1979), took a long step
backward when it took three protesting daughters
from their mother’s home merely because after divorce
she had a live-in male lover. Where there is a judicial
overreaction to what a particular court may regard as
gross immorality (usually meaning sex life), the gravest
harm and injustice may be occasioned by selfrighteous
moral activists.
Another situation which invites error is where chauvinism
(in its original sense) is operative. The California
court, after the death of the father, awarded
children to the custody of relatives rather than to their
Czechoslovakian mother who had remained behind
the “iron curtain”” when the father fled to America
with the children. The highly publicized Chicago case
of Walter Polovchal in 1980 also had chauvinistic
overtones when the Department of State intervened
to block the minor son’s return to the USSR. Recent
press reports related that a Georgia court took the
children away from two Harvard graduates who had
turned “hippy.” Of course, it may have been their
educational background rather than their lifestyle that
the Georgia court found most offensive.
In sum, the most relevant criteria in child custody
cases are those that have a direct bearing on the child’s
development and maturation in a warm and loving
environment. Matters that have no direct bearing,
such as the private sex life of the custodian, should be
ignored. The focus should be placed upon the child’s
emotional and psychological well being, not upon the
alleged moral unfitness of the particular custodian. Of
course, parental unfitness sometimes may be one side
of the coin and detriment to the child may be the
other side of the same coin. The court, however, may
best promote justice to the child by concentrating on
the child’s welfare and detriment.
One of the most comforting things to a judge who
handles custody disputes is the knowledge that if he
makes a mistake it is subject to later correction. Custody
and visitation awards in most states are not final;
they may be, and frequently are, modified. There have
been criticisms regarding the lack of finality in custody
decisions and it has been recommended that, once an
award is made, it should not be subject to modification.
Texas, by statute, forbids modification for 6 months
after the initial order. From a lawyer’s point of view, this is throwing the baby out with the bathwater.

Themargin for error in the initial disposition is too great,
and to protect the child there must be power to modify.
This does not mean, however, that there should not
be strict requirements of proof in order to obtain
modification, nor that the security and continuity of
the parent-child relationship is not an important and
often decisive factor in modification proceedings.

Types of Custodial Arrangements
In divorce cases the favored placement is an award
of the child (or children) to one parent for custodial
purposes with visitation rights granted to the other.
The legal custodian usually is granted autonomy and
does not have to share decision making with the other
parent, although by agreement or decree some issues
such as schooling or religious training, may be subjects
for mutual decision. The terms of visitation depend
upon numerous factors, including geographic proximity,
school and work schedules, the desires and needs
of the parents and children, and how visitation previously
worked out in practice.
Courts generally seek to accord “reasonable visitation”
to the noncustodial parent and to perpetuate
meaningful on-going parent-child relationships. What
is deemed to be “reasonable” depends upon all of the
facts and circumstances of the individual case. However,
it is quite common to award weekend visitation
every other weekend in the case of school-age children,
plus alternating holidays and a period of some weeks
during the summer vacation. Sometimes a week day
dinner is added for the parent having visitation. Preschool-age
children are accorded more selective treatment
and in the case of many teenage adolescents,
they visit when and if they feel like it, no matter what
the court decree provides.
Within the past decade there has been a tremendous
increase in the number of cases where the father seeks
either sole custody or joint custody with the mother.
Occasionally, courts have awarded joint custody in
contested proceedings but ordinarily joint custody occurs
where the parties consent to that arrangement.
The term “joint custody” comprehends (a) joint decision
making on major child rearing issues, and (b) a
sharing of physical possession. Of course, minor issues
may have to be decided on an ad hoc basis by the one
in immediate control, and the sharing of physical
possession need not be on an equal time basis. Some
“joint custody” arrangements are difficult to distinguish
on an operational level from sole custody plus
“reasonable visitation.” Moreover, some separate families
have tried a “nesting” arrangement where the
parents take turns moving into and out of the family
home while the children stay put.
There is little disagreement over joint custody as an ideal. As often stated, it most closely resembles the
situation which existed when there was an intact
family, and a child should have the right to an ongoing
and meaningful relationship with both parents.
The problem, however, is workability. The experience
of most judges and lawyers has been that, to be workable,
joint custody requires optimal conditions. There
must be geographical proximity, a favorable school
and work schedule, suitable physical arrangements,
and a spirit of parental cooperation that places the
child’s welfare foremost. Unfortunately, these favorable
conditions usually do not exist. Moreover, samplings
of public opinions suggest that most fathers do
not want sole or joint custody.
Notwithstanding the practical problems inherent in
joint custody arrangements, since the publication of
Roman and Haddod’s (1978) book, The Disposable
Parent, concerted efforts have been made throughout
the country to make joint custody the preferred arrangement.
A few states, including California, New
Hampshire, Nevada, and New Mexico, have statutes
that seek to make joint custody the norm and mandate
that, where both parents agree, a presumption arises
in its favor. If the court fails to award joint custody,
it must set forth its reasons. Ifsole custody is awarded,
the court is directed to favor the parent most likely to
give frequent access to the other parent, and the court
is empowered, after investigation, to award joint custody
at the request of only one parent. Other states
have passed statutes that in effect merely authorize
the courtto consider and award joint custody.
Joint custody should be reserved for exceptional
circumstances, such as where civilized parents generally
agree as to what is for the best interests of the
children and feel free to communicate regarding their
welfare. Moreover, court ordered joint custody may be
a “cop out” for a particular court that wishes to avoid
a meticulous assessment of the facts of the individual
case. A father’s demand for sole or joint custody also
may be part of an overall strategy in divorce litigation.
Although I question the practicality and wisdom of
California-type statutes, I do agree that lawyers and
therapists as well as courts should be alert to the fact
that joint custody may be a viable alternative when
conditions are favorable. Far too often in the past the
alternative was overlooked. Finally, the emphasis
upon maintaining access to both parents generally is
in the child’s best interests, and usually it would be
highly detrimental to give the custodial parent a veto
over visitation as recommended in Goldstein et al.
(1973, p. 38)

Judicial Attitude Toward Expert Testimony
Courts react to expert testimony in various ways
depending in part on the training, background, and
experience of the individual judge. A few judges are
psychiatrically oriented; perhaps more are cynical
about expert testimony in general and psychiatric
testimony in particular. One reason for cynicism is
the so-called “battle of the experts” ·which is often
staged in court. The court’s own staff or witness may
be more convincing than forensic stars.
The model judge keeps an open mind, hears both
sides, is skeptical regarding expert testimony, and
conscientiously weighs the evidence. The judge is no
amateur when it comes to fact finding. Moreover, the
court, under our form of government, is the agency
responsible for the community’s conscience and that
is answerable to a consensus. Whether an accused
should be convicted or acquitted upon his defense of
insanity ordinarily is a social and moral decision, and
the same often istrue on the issue of who gets custody.
Thus, the role or function of the expert in child
development, when he testifies as a witness, is to
provide grist for the judicial mill. Often the expert
testimony will be crucial or decisive, but at other times
it will be offset by competing expert testimony or
significant facts and circumstances. In Europe, the
prevalent model is to hear the testimony of the senior
professor at the forensic science institute and rarely
is the senior contradicted. In this country, however,
cross examination and rebuttal testimony are at the
heart of our due process.
There are frequent proposals that we abandon the
adversary process for a panel of experts, especially in
child custody disputes. Even if constitutional, the
wisdom of such a move is highly questionable. Far
better and more acceptable under our system is the
adaptation of the adversary process in the handling of
child placement issues. Such may be done by helping
to ensure that the court has access to all relevant facts
and opinions in custody cases. Two techniques may
accomplish that end: first, for such cases the court
needs a competent professional staff to investigate
and report; and” second, in contested cases ordinarily
the child or children need and deserve their own
counsel.
Role of the Child Psychiatrist
From the lawyer’s point of view, the child psychiatrist
or other expert on child development may have
two functions in connection with custody litigation.
The two roles are distinct but inter-related. One involves
evaluation, treatment, counseling, or therapy.
The other is forensic: the specialist is a potential
witness.
With regard to evaluation, the individual child psychiatrist
must determine whether or not he must see
the family and its members or merely the child or
children. For purposes of testimony, ordinarily, where possible, it is better for the expert to see the entire
family constellation since then his or her findings and
opinions will carry greater weight and conviction. He
will have seen the whole picture, including the interrelationships
among family members.
Due to the trauma occasioned by the divorce and
postdivorce process to children as well as parents, a
program of treatment may be in order for the children.
The potential legal difficulty in such situations is that
there may be a conflict of interests. The psychiatrist
should make it clear, preferably in writing, what his
or her ground rules are when he accepts such a child
as a patient, and what, if any, disclosures he or she
intends to make to a. particular parent. If properly
handled, confidentiality will be owed to the child
patient, not to his parent, even though the latter pays
the bills. A parent’s waiver of confidentiality (such as
by bringing a custody action) may not be held to be a
waiver by the patient-child.
In some states, moreover, a rule has developed that
the psychiatrist may come under the larger umbrella
oflawyer-client privilege where the lawyer engages the
psychiatrist to assist him by interviewing the lawyer’s
client or the child before trial. Ifthe psychiatrist takes
the witness stand, however, there may be a waiver of
confidentiality.
The child psychiatrist or other expert also serves
an important function in trial preparation. Lawyers
differ as to their levels of sophistication (if any) with
reference to psychiatric knowledge and insights. The
experienced forensic expert may be valuable for determining
trial strategy and tactics in general as well as
the form and content of his own testimony. Similarly,
the experienced trial lawyer may help the expert to
articulate his facts and opinions in most convincing
fashion. The fact that the expert is subjected to crossexamination
by the other side should not be viewed as
an insult, because if no questions are forthcoming, it
could mean that the expert’s testimony was ineffectual.

Practical Tips for the Expert Witness
The child psychiatrist who is called upon to testify
in a custody dispute should be aware that as an “expert”
he is a privileged character. Most of us are not
free to voice opinions from the witness stand. The
“expert” is an exception, whether his testimony is in
response to hypothetical questions or in normal fashion.
Moreover, the individual psychiatrist may testify
as a treating physician at one point, and as an expert
at another, in which event he or she is entitled to
ordinary witness fees for the former and the fees of
an expert for the latter.
It is an old ruse for the cross-examining attorney to
ask the expert if he is being paid for his opinion, and
if so, how much? Although it is tempting to respond
that he is being paid for his time not his opinion, be
wary of fencing with lawyers. They are on their own
turf, and the odds are against you. It is best to state
accurately the financial facts and not to give hostile
counsel an opening. Badgering a witness often is counter-productive.
Do not play into the cross-examiner’s
hands by showing anger, justified or not.
If you have overgeneralized or failed to note exceptions
or qualifications in your testimony, freely admit
such to be the case. Remember, the laywer who called
you will have a chance to “rehabilitate” your testimony
if need be on re-direct examination. The favorite tactic
of the cross-examiner is to get you out on a limb and
have you saw it off. The fall may be precipitous. That
may be avoided by sticking to facts and opinions you
can back up and document. If there is room for a
difference in opinion, graciously acknowledge such to
be the case,
Insist upon a careful briefing and preparation before
trial so that you will know in general and in advance
what the questions will be on direct examination and
what the probable questions will be on cross-examination.
Do not get up tight about challenges to your
professional status or reputation. Attacking the credibility
of a witness is standard practice and should not
be taken personally.
With regard to custody and visitation issues, show
flexibility, because you may be dealing with a prediction
as to future behavior. Where possible, speak in
terms of the child’s needs and desires, apart from
those of a parent. For example, a child’s need to know
and associate with both parents may carry more
weight than a parent’s need to see the child. There
are some things you may say with more assurance
than others. As for the latter, be prepared to qualify
or explain.
The expertise of the child psychiatrist that may be
decisive is his other awareness of the dynamics of
particular relationships. If the expert is able to describe
fairly what is going on within the family and its
inter-relationships, it will be a positive aid to the
court’s decision. Reasons and examples supporting
any recommendation or evaluation and, in some cases,
psychological testing, may give weight to expert testimony.
Courts are more interested in family dynamics
than in psychiatric labels.
Finally, remember the compromising character of
law. In most custody cases neither contestant wins a
clear-cut victory. One (usually the mother) gets custody
and the other (usually the father) gets reasonable
visitation rights. Unless there are exceptional facts or
circumstances, that result is predictable.

Conclusion
The law of child custody is not written in stone. In  a given case a particular judge weighs and balances all
of the facts and evidence presented before him. The opinion or recommendation of a child psychiatrist
regarding custody is only one of the elements considered. Increasingly, however, such testimony is crucial
and decisive.

The recommendations of the Group for the Advancement
of Psychiatry, Committee on the Family
(1981), set forth criteria to be used in decision making
in custody cases:
The court’s determination should aim at providing the
child with an ongoing relationship with as many members
of his or her family of origin as possible….
The court should not confirm the moral condemnation of
one parent by the other since the child’s welfare is badly
served by the loss of trust such condemnations engender….
In determining parental competence, the court should
seriously consider the comparative willingness of the two
contestants to provide the child access to the other parent,
to siblings, grandparents, and other relatives.
The child should not be considered merely a passive
recipient of parental care but also a concerned and willing
source of support for both parents…the child has a need to
express and channel concern about all family members,
including the noncustodial parent (146-147).
The above criteria were respectfully recommended
to courts that adjudicate custody matters. Of course,
they are not the only factors for decision making and
due to the eclectic nature of law they are not the only
guide-lines courts will consider. Moreover, it may be
somewhat naive to suggest that courts should not
“confirm the moral condemnations of one parent,”
especially if the claimed immorality has a direct bearing
on the child’s welfare. At best we may hope that
courts will focus on detriment to the child rather than
upon parental “unfitness” as such.
Both law and psychiatry get into the business o predicting future human behavior. That is dangerous
territory. There are so many variables. And humility
is in short supply. A custody decision is a prediction
as to what is best for the child. Fortunately, if there
be egregious error, the prediction is subject to modification
upon review. Although from the psychiatric
point of view continuity, stability, and the security of
child placement may be paramount, from the legal
point of view it is a blessing that where need be child
custody may be changed.
Goldstein et al. (1973) in Beyond the Best Interests
of the Child pose the case of the Dutch Jews who left
their children with gentile surrogates during World
War II and what was to be done with the children
when surviving Jewish parents returned. The Dutch
authorities handed the children over to their natural
parents. The eminent authors suggest that the children
remain with the surrogates. From this lawyer’s
point of view, there should be no rule of thumb; each
case should be decided on the basis of its individual
facts. Psychiatric generalizations should not decide
concrete cases. It should be the dynamics of the individual
case that controls the particular result. And the
psychiatric recommendation or prediction is but grist
for the mill.

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