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University of Arkansas at Little Rock Law Review

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The judiciary's role in divorce related child custody disputes has been transformed in the latter half of the twentieth century in response to the changing characteristics of American families, changing perceptions of the needs of children, and an overwhelming case load increase. The transformation occurred in two distinct phases, and a third is currently in process.

In Phase I, from the late 1960s (the beginning of widespread "no fault" divorce) to 1980, the child custody court was a fault finder functioning through adversary procedure. The court's job was to identify a single custodial parent and assign that parent primary legal rights to the child after a trial about which parent was a better custodian for the child.

Phase I courts conceived of a custody dispute much like a will contest. The parents' marriage, like the decedent, was dead. Parents, like the heirs, were in dispute about the distribution of one of the assets of the estate--their children. The Phase I court's role was, after trial, to determine which heir/parent was more morally or psychologically worthy to control the children. The goal of the proceeding was a one time determination of custody "rights" which created "stability" for the future management of the asset. The winner was, however, largely predetermined by gender biased substantive standards that eliminated the seeming indeterminancy of the "best interests" test. Once the court distributed custody rights, its role in facilitating the ongoing process of reorganizing the child's relationships with both parents was over, except for the enforcement or modification of its initial award, tasks also accomplished through adversary process.

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Family Law Commons