Some writers have seriously suggested the drawing of lots as a solution in the average custody dispute.
Goldstein, Freud & Solnit (1973) in their provocatively titled book
Beyond The Best Interests Of The Child have made the main case for a presumption of sole
custody. Contact with the non-custodial parent is seen as inevitably conflict ridden, resulting in confusion, loyalty conflicts, and, ultimately, maladjustment
for the child. The solution is to give total power and control to one parent and that the non-custodial parent lose his or her legal right to access their
child. They argue:
Once it is determined who will be the custodial parent, it is that
parent, not the court, who must decide under what conditions he or she wishes to raise the child. Thus, the non-custodial parent should have no legally
enforceable right to visit the child, and the custodial parent should have the right to decide whether it is desirable for the child to have such visits.
Goldstein, Freud, & Solnit are quite clear that such visits, even if
allowed, are not worth much. As they readily, even blithely, acknowledge, “a visiting or ‘visited' parent has little chance to serve as a true object of
love, trust and identification, since this role is based on being available on an uninterrupted day-to-day basis.” So much for the non-custodial parent! But
what if both parents are equally acceptable? How then to determine custody? In such a case, the authors suggest that:
a judicially supervised drawing of
lots...might be the most rational and least offensive process for resolving the hard choice.
“Curiously enough, the research that has been done on the issue of children's needs after divorce consistently points to
conclusions that are diametrically opposed to those recommended by these three authors. Specifically, it has been demonstrated that children need, frequent and continuous contact with both parents.
Thus if we were to follow the proposal of Goldstein, Freud, & Solnit, the first of these needs would be frustrated by the tenuousness and insignificance of the child's relationship with the non–custodial
parent, and the second would be frustrated by the escalating power struggles that would doubtless characterise many, if not most, of the inter–parental relationships. Such conflicts would ensure as
a direct result of the severe imbalance in parental control over the child's relationship with the parents” (Saposnek 1983). Moreover, as Roman & Haddad (1978) noted:
The authors do not cite, nor does their exist, any social science data to support
the proposition that a single official parent is preferable to two.
The psychological basis of
Beyond The Best Interests Of The Child is simply
unsound (Katkin, Bullington, & Levine 1974).
“We know of no studies that show the legal death of one parent, and the complete subordination of the child to the other’s possibly distorted views, is a preferable step for the child’s future
development. If anything, there is much more evidence that it is potentially damaging to the child to be completely subject to one parent’s will” (Strauss & Strauss 1974).
Yet the position taken in
Beyond The Best Interests of The Child is the accepted one. It has been assumed, in the absence of
any evidence, that after a divorce one parent and one household are not merely the arrangement of choice, but the only possible arrangement. Children need stability, and stability comes in a variety
of forms. We need not assume that stability equals one primary parent and one primary home. Stability can also mean a relationship of constancy and permanence with two parents in two separate homes. A
child's life may be temporarily disrupted by separation, but it can become stabilised again in new forms. Children need to know that their needs will be taken care of. They need to be able to predict
that their lives will go on much the same way as before their parents' separation. Children need to identify positively with both parents––not be pushed into situations in which they are forced to
express loyalty to one parent over another (Galper 1978; 1980).
Goldstein J, Freud A & Solnit A J (1973).
Beyond The Best Interests Of The Child The Free Press: New
York. pp 74–76
Saposnek D (1973). Mediating In Child Custody Disputes. Jossey–Bass: New York.
& Haddad W (1978). The Disposable Parent: The Case For Joint Custody. Holt, Rinehart & Winston: New York. p 109
Katkin D, Bullington B & Levine M (Summer 1974). Review: Above and Beyond The Best Interests Of The Child: An Inquiry Into The
Relationship Between Social Science And Social Action. Law and Society Review. 8: 669-687
Strauss P & Strauss J (June 1974). Review Of Beyond The Best Interests Of The Child. Columbia Law Review. 74: 996-1015.
Galper M (1978). Co–Parenting of Children Following Divorce. Running Press: Philadelphia. pp 74–76.
Galper M (1980). Joint Custody and Co-Parenting. Running Press: Philadelphia