Pluralism, Parental Preference, and Child Custody

Modern child custody law faces an important challenge in responding to pluralistic and evolving gender and parenting roles. Professor Scott finds rules favoring maternal custody, joint custody, and the best interests of the child wanting; she argues that the optimal response to the current pluralism in family structure is a rule that seeks to replicate past parental roles. This "approximation" standard promotes continuity and stability for children. It encourages cooperative rather than conflictual resolution of custody, thereby ameliorating the destructive effects of bargaining at divorce. It also recognizes and reinforces role change in individual families, encouraging both parents to invest in parenting before and after divorce. Although an approximation approach might disappoint those who believe that custody law can serve as a transformational tool of social reform, Professor Scott argues that mandating conformity to prescribed family roles is costly and ultimately ineffective. Her proposed framework allows families to function according to their individual values and preferences while subtly encouraging the restructuring of parental roles in the direction of desirable reform.