This is from today’s New York Times and fills in some of the details. It ties back to my last post. Obviously there are many disputes over the facts and I have no access to any information beyond what is available to the public. But this article (and a little reflection over the weekend) do raise some questions that interest me.
First, you can see the ways in which politics and family law become intertwined. Miller’s rejection of Jenkins is related to her rejection of homosexuality. It’s a little hard to identify cause and effect here, but likely it’s all interwoven on a personal level. But whatever the realities for the two women, the involvement of others seems to me to be at least in part motivated by ideological commitment–in this case, deep opposition to lesbian and gay parenting on the one side and support for it on the other. In this way a case becomes a cause.
I’m afraid ideology has come to rule the day. Unless you accept the position that a lesbian parent is always a bad parent, it’s hard to see how you can make a judgment that Miller is right here. If some lesbians are decent parents, then don’t we really need to let this case be decided on its specific facts–which is presumably what the courts have been trying to do?
This brings me back to the question–discussed in part in the last set of comments–about an individual’s obligation to follow a court order even if they think it wrong. While I am somewhat sympathetic to that viewpoint it seems to me to potentially wreak havoc with family law in particular. Surely many parents who are unsatisfied with judicial resolution of custody claims would prefer to follow their own judgment of the correct outcome. But equally surely, we cannot let them do that. It will make a mockery of judicial resolution of custody cases if we assert that litigants are entitled to disregard results where they have a really sincere belief they are wrong.
There’s another theme you can see illustrated in this case–the importance of the continuing role of parents post-separation. Both women here are legal parents of the child. (I understand that not everyone is happy about that, but I think there is no disagreement about the legal status.) Original custody was with Miller. But Miller interfered (in a big way) with her child’s relationship with the child’s other parent. Because we believe that a child should maintain contact with both her/his parents, that’s a basis on which one can ask to switch custody. That’s what happened here–Jenkins was given custody because she would facilitate contact with Miller.
The idea that a court will favor the parent who will better facilitate contact with the other parent is an interesting one. It’s not entirely clear to me whether it rests on an assumption that contact with both parents is always better for the child or whether it reflects a recognition that parents have rights, too. It’s probably a mix of both. Still, it’s a pretty common precept that you will see expressed in many cases. And we generally stick with it, even where the parent with original custody can articulate specific concerns about the influence of the other parent.