Citation

Moloney L. Fam. Court Rev. 2008; 46(1): 39-52.

Copyright

(Copyright © 2008, Association of Family and Conciliation Courts, Publisher John Wiley and Sons)

DOI

10.1111/j.1744-1617.2007.00182.x

PMID

unavailable

Abstract

This article provides a brief critique of presumptions about parenting and children seen through the lens of family law. It argues that, historically, decisions largely followed gender-based and/or moral presumptions of the day and that sometimes these were in tension with each other. Sometimes, too, as in the biblical story of Solomon's judgment, biological parenthood was contested and/or gender did not provide a ready answer. The article argues that, as children's rights and the best interests of the child increasingly came to dominate the decision-making rhetoric, a Solomon-like belief has nonetheless persisted, that judicial ingenuity and sophisticated investigative resources can determine the underlying truth of a dispute and lead to the correct outcome. The evidence, however, points in the direction of significant predictive limitations to the legal, social, and psychological knowledge bases supporting most postseparation parenting decisions. It is argued that what is needed is a formal shift in emphasis from a somewhat idealized commitment to discovering the truth in most contested cases to a focus on good decision-making processes. It is suggested that most transitional families are best served by an emphasis on good, respectful processes associated with good-enough decisions that formally acknowledge the limitations of our capacity to predict. Good processes and good-enough decisions are in turn best supported by a clear emphasis on children as individual agents, who, though dependent on adults, are entitled to the full panoply of human rights.