Law & Contemporary Problems symposium examines child custody decisionmaking, April 26

April 11, 2013Duke Law News

Law & Contemporary Problems, Duke Law School’s venerable interdisciplinary journal, will host a symposium on child custody decisionmaking on April 26.

The invitation-only symposium will bring together leading scholars of child custody law to reexamine pathbreaking work published by L&CP in a 1975 symposium issue titled “Children and the Law.” In particular, the symposium will address Harvard Law Professor Robert Mnookin’s article, “Child Custody Adjudication:  Judicial Function in the Face of Indeterminacy.” 

“Mnookin’s article is one of the most frequently cited and influential works on child custody adjudication,” said Katharine T. Bartlett, the A. Kenneth Pye Professor of Law and co-editor of the symposium.  “It was a broad-based critique of the ‘best interest’ standard used to make custody decisions for children, not just in the divorce context, but also in the child welfare context and in others.  It is a very subjective, open-ended standard that allows the judge to draw on whatever his or her own personal intuitions are about what’s good for children.  So the decisions it produces are not predictable. They’re not objective.”  Some of Mnookin’s subsequent work examined how use of an indeterminate standard can affect bargaining between the parties to a dispute, explained Bartlett, the former dean of Duke Law School who served as a reporter responsible for the child custody provisions of the American Law Institute’s Principles of the Law of Family Dissolution (2002).

“In this symposium,” said Bartlett, “we will reexamine, almost 40 years later, the basic best interest critique from a variety of perspectives.”

Symposium participants come from law and social science and are leaders in their respective fields.  Some, like Bartlett and her co-editor Elizabeth Scott, the Harold R. Medina Professor of Law at Columbia Law School, are exploring alternatives to the best interest standard and what prospects they have for adoption and success, how the law has changed, and the extent to which the best interest standard is still the reigning law.  Other authors are addressing the child welfare context and matters of parental authority, exploring the relationship between parental rights and children’s best interests. Psychological perspectives will focus on issues relating to negotiation and child custody and shared custody or “shared time parenting.” A number of the papers relate to the changing definition of “parent” and the parent-child relationship.

Each symposium presenter will have a commentator, among them Duke Law Professors Kathryn Bradley, Doriane Coleman, and Kimberly Krawiec who all write and teach in areas relating to family and the law.  Mnookin, the Samuel Williston Professor of Law at Harvard Law School and a specialist in negotiation will attend as a general commentator, said Bartlett.

“We’re delighted that he has agreed to join us,” she said.  “He no longer works in the child custody area, but he instigated much of the debate that remains ongoing, and he will be commenting on all of the individual papers presented.  We’re very excited about it.”

Read symposium abstracts.

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