Custody law traditionally has been conceived as a contest for a prize. The winner of the contest is “awarded” the prize of custody, i.e., the right to continue parenting a couple’s children, and to have the final say in all matters concerning the child. The loser is consigned to a secondary role, that of an occasional visitor. Many noncustodial parents, having been marginalized in this way, bitterly resent the term visitation. As one writer put it: “The words ‘custody’ and ‘visitation’ belong to prisons and hospitals.”1 Feeling as if they have been, or are being, excised from their children’s lives, some parents may give up trying to be involved in the parenting of their children.2
Theorizing that removing the stigma of losing custody and of being demoted from a parent to a “visitor” would reverse the process of driving fathers out of their children’s lives, suggestions have been made to change the terminology in a way that emphasizes that a parent who loses custody nevertheless remains a parent. Accordingly, one type of proposal that has been gaining a lot of traction is to discontinue the use of terms like custody and visitation, and instead use terms with fewer negative connotations, such as decision-making responsibility, residential responsibility and parenting time.3
While terminological changes undoubtedly are beneficial in terms of removing the stigma of losing custody (and the loss of parental authority and respect it entails), they are not a complete solution. They do not alter the basis on which residential responsibility and parenting time are allocated between the parties. They do not make the legal standards clearer or more responsive to changing conceptions of male and female parenting roles, or to the needs of children for a meaningful relationship with both parents. If these kinds of things are goals, then something more than terminological changes alone will be needed.
My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:
- Marilyn Gardner, Yours, Mine, Then Yours Again, Christian Sci. Monitor 13 (May 3, 2006) (quoting a shared parenting supporter) ↩
- See Frank F. Furstenberg et al., The Life Course of Children of Divorce: Marital Disruption and Parental Contact, 48 Am. Soc. Rev. 656, 663-64 (1983) (finding that two years after a divorce, half of noncustodial fathers have virtually no contact with their children at all); see also David Blankenhorn, Fatherless America: Confronting Our Most Urgent Social Problem 22 (1995); Mavis Hetherington & John Kelly, For Better or for Worse: Divorce Reconsidered 118-21 (2002); Cynthia R. Mabry, Disappearing Acts: Encouraging Fathers To Reappear for their Children, 7 J.L. & Fam. Stud. 111, 114-18 (2005); Solangel Maldonado, Beyond Economic Fatherhood: Encouraging Divorced Fathers To Parent, 153 U. Pa. L. Rev. 921, 946-47 (2005); David D. Meyer, The Constitutional Rights of Non-Custodial Parents, 35 Hofstra L. Rev. 1461, 1469-70 (2006); Judith A. Seltzer, Relationships Between Fathers and Children Who Live Apart: The Father’s Role After Separation, 53 J. Marriage & Fam. 79, 85 (1991). ↩
- Peter V. Rother, Balancing Custody Issues: Minnesota’s New Parenting Plan Statute, 57 Minn. Bench & B. 28 (Dec. 2000) (noting the reason for allowing parties to use terms other than custody and visitation in a parenting plan is that those concepts represent possession and control.) ↩