Custody: Kramer vs. Reality
TIME.com | Page 1 | From the Magazine | Law | Posted Monday, Feb. 4, 1980
http://www.time.com/time/magazine/article/0,9171,954539,00.html
In divorce cases, as in society, rules are changing
While moviegoers have been weeping this winter over the wrenching divorce drama Kramer vs. Kramer, lawyers have been shaking their heads. Their plaint is not that the couple’s attorneys in the film are the least appealing characters since the Wicked Witch of the West, but that the courtroom scenes are legally out of date. Meryl Streep, playing a restless housewife trying to find fulfillment, has walked out on her marriage to Dustin Hoffman, a hustling young Manhattan adman, leaving him with their young son; 18 months later she wins custody of the child despite the husband’s devotion to the boy during her long absence. In the real world, psychiatrists or psychologists would have testified, the judge would have at least interviewed the child and probably would have allowed the father to retain the custody he had had since the split-up.
More and more, single dads are rearing their children. While women still get custody in the overwhelming majority of divorces, between 1970 and 1978 the number of children under 18 living with divorced fathers jumped by 136%; close to 500,000 divorced
In Roman tunes and after, the man was king: offspring were considered his property even if the marriage ended. That principle died in the 19th century as courts took on a guardian role and began to favor the mother, especially if the child was in his first five to seven years. The rule that generally prevails in the
While many judges cling to this “unfitness” test, things are changing. The emergence of job-holding mothers (59% of women 18 to 64 now work) has eliminated a leading legal basis for favoring the exwife. Fathers, encouraged by the new emphasis on equal rights, are increasingly inclined to put up a fight. Though his divorce occurred in 1970, Dancer Edward Villella has sued to retrieve custody of his son Roddy, now 10. (Quipped his exwife, former Dancer Janet Greschler Villella: “He probably saw Kramer vs. Kramer.”)
Once a father has obtained custody, whether by agreement or by court ruling, he faces lots of adjustments. If his work hours are a problem, he may have to find a new job. Most single fathers rely on female friends or parents to help; day care is often a must. Yet most appear to cope and find the sacrifices worthwhile. Says
One endorsement comes from Sidney P. Harden of
Some advocates of divorce-law change believe that only joint custody makes sense. Says Garry Brown, former head of Equal Rights for Fathers of New York State: “I don’t care how inadequate a parent is, a kid is entitled to his two loving parents.” Brown favors a system under which the child lives with one parent, while the other has unlimited visitation rights and a full voice in decisions involving the child’s rearing. On Jan. 1,
While few lawyers quarrel with the goals of joint-custody advocates, many question the wisdom of this arrangement. “It’s the easiest thing for a judge to decide,” says Family Law Expert Henry S. Foster Jr., professor emeritus at
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