Parental Autonomy and Children's Welfare

Elizabeth S. Scott, Columbia Law School


This essay examines trends in child custody law in the past decade or so, and argues that many of the substantive and procedural legal developments can be understood as an unplanned but coherent effort to influence divorced and separated parents to function more like parents in intact families, by giving them some semblance of the authority and respect that they enjoyed before dissolution. These reforms encourage parents to cooperate and to maintain their commitment to fulfilling their responsibilities to their children through a regulatory scheme that treats them as fiduciaries entrusted with their children's welfare. A fiduciary model of regulation embodies an insight that was lost under traditional custody law - that legal deference is important in promoting role satisfaction and in encouraging parents to dedicate themselves to their children's interest. This theme is prominent both in reforms of substantive custody law that recognize the parental status of both parents and in procedural innovations that encourage parents to take greater responsibility for deciding custody arrangements. At the same time, the growing emphasis on domestic violence as a factor in custody law is a critical component of a fiduciary model of regulation, because it reinforces the boundary of acceptable parental behavior. One recent legal development - the recognition of custody and visitation claims by grandparents and other non-parents - runs counter to the implicit adoption of a fiduciary model of family regulation. This reform, intended to serve the benign purpose of preserving relationships between children and adults who are important in their lives, instead may undermine children's welfare by imposing burdens on parents that diminish role satisfaction. Thus, counter-intuitively, reforms that seem to reinforce parental "rights" serve to protect the parent-child relationship, while those that are designed to promote the child's interest threaten to frustrate the child's most important bond - the relationship with her care-taking parent.