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parchment-and-petrichor · 7 years

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Look, publishing community. We need to talk.

About ten years ago, you let the Twilight series take over the world, and with it, naive young girls’ belief that overly protective stalker boyfriends were something to strive for. Since the series’ completion, readers and moviegoers alike have vowed to do better. We hoped to put these toxic ideals behind us with every conversation we had about the problematic nature of Stephenie Meyer’s books. We hoped in doing so, we could finally move forward to read and support more wholesome, meaningful content.

Yet somehow, you chose to invest your money in Sarah J. Maas, and unleashed a whole new, far worse beast upon the world.

Why are we still letting toxic romances dominate the YA genre? Have we learned nothing from the likes of Meyer at all?

Let’s take a step back for a moment. As with her first series, Throne of Glass, Sarah J. Maas set out to write another fairy tale retelling in her latest A Court of Thorns and Roses series. By the time Mist and Fury begins, we’ve all but cast the Beauty and the Beast pretence to the wind. In perhaps the most dull first third of any novel, Feyre is suffering extreme depression and PTSD following the trauma incurred at Amarantha’s wrath. I am wholeheartedly here for portrayals of PTSD in YA. In fact, I encourage it. And given how much of a non-entity it is in Throne of Glass following Celaena’s pre-series traumas, this almost seems like an improvement on Maas’ part. But not when it goes on and on and on for 200 pages. Reading about any protagonist moping in self-pity is a 50-page deal at most. I get we’re supposed to see Feyre’s lack of self-worth at the start of this novel. I get that her trajectory is clearly one of her realising her value and gaining empowerment. Fine. But you can tell that story in 150 less pages. Believe me, as someone who has opened a novel with significant scenes of abuse and trauma, I know what it means to cut back. It pays to trust your reader and rein it in sometimes.

Which comes to one of the most blatant transgressions Maas commits: her lack of editing. Sure, at this point, she’s kind of well-known for her signature long sequels. But larger word counts do not good writing make. This novel could have easily been a solid 400 pages without the faffing about she does in the beginning.

There are some books that really excel in being split into distinct acts. Separating segments via setting or plot shifts can really solidify the narrative, but Maas’ acts can be separated out according to isolated moments sliding along a scale of boring, great, horrifying, and dire. Which is not what you want out of a narrative arc.

I actually thoroughly enjoyed the middle of this novel. For 200 pages, it seems like Maas has begun to atone for all her grievous harm done in her previous works. She introduces some interesting female characters for Feyre to befriend. The friend dynamic of Rhysand’s council is easily one of the strengths of the series and I wish she could have introduced them by the end of the first book. Amren in particular is a fascinating character, who, for a hot second, seems like she might kick some ass in a dark, ruthless, gory kind of way. She and Feyre have a great scene where they’re given permission to go out on a mission and be badass. I was excited to see where this would go and I looked forward to seeing these new battle sisters doing some serious damage together. Unfortunately, there are once more, long interludes where Amren keeps herself locked up, decoding things while the others go out and do the exciting stuff. Until the climax of the novel, the best, most dynamic addition to the cast has been shafted. As are all of the female characters in this series.

Here’s the thing.

For the most part, I like the girls in this book. At face value, they’re great. Nesta, Amren, Mor, and Feyre could all hold their own in battle as easily as they could all have a slumber-party style ki-ki over wine together. But the patriarchal world they’re placed in does no favours for them. Maas’ faerie world is build up by patriarchal traditions, where the men are led by their territorial, violent animal instincts:

“What’s normal?” I said.

… “The … frenzy … When a couple accepts the mating bond, it’s … overwhelming. Again, harkening back to the beasts we once were. Probably something about ensuring the female is impregnated. … Some couples don’t leave the house for a week. Males get so volatile that it can be dangerous for them to be in public, anyway. I’ve seen males of reason and education shatter a room because another male looked too long in their mate’s direction too soon after they’ve been mated.”

This hyper-masculine tradition also happens to heavily feature treating women like commodities they can use and throw away whenever they like. Rhysand, a character Maas tries so hard to pass off as a celebrated feminist, even tells Feyre in the heat of passion that, “I want you splayed out on the table like my own personal feast”. Every single one of Maas’ male characters, including, and especially Rhys, is a product of this tradition. But instead of engaging with commentary about how toxic such a worldview is, Maas just lets her characters carry on in this reality without consequence, self-awareness, or rebellion against it, as can be seen by Rhys’ explanation of women’s place in the kitchen, and Feyre’s subsequent acquiescence to that role as Rhys' partner:

“It’s an … important moment when a female offers her mate food. It goes back to whatever beasts we were a long, long time ago. But it still matters. The first time matters. Some mated pairs will make an occasion of it– throwing a party just so the female can formally offer her mate food … But it means that the female … accepts the bond.”

This old-fashioned, dare I say, archaic misogynistic ideal is just treated as the norm, effectively cementing every other male fantasy writer’s depiction of patriarchal societies as the ultimate world-building feature of the genre.

I don’t know what Maas is thinking, but whatever it is, it’s not cute.

Why are we still putting fantasies set in patriarchal worlds on such a high pedestal? It’s fantasy! What’s more, it’s 2017! You can’t tell me it’s more realistic to write a patriarchal society than literally any other kind in a fantasy world. When Maas, a woman writer creating her own world from scratch, has the chance to do whatever she wants, this is what she gives us?

One of the most horrifying scenes in A Court of Thorns and Roses (which is also shockingly overlooked) is Rhysand drugging Feyre and turning her into his slave whore without her consent. Maas sweeps this under the rug with a quick explanation that is all justified to a.) save Rhys’ fearsome reputation among the other realms, and b.) protect Feyre from the horrors of Amarantha’s kingdom. Just when I thought this particular plot was given its much needed closure (shut it down, Sarah. Shut it down right now!), the slave whore plot rears its ugly head again:

“I had heard the rumours, and I didn’t quite believe him.” [Keir’s] gaze settled on me, on my breasts, peaked through the folds of my dress, of my legs, spread wider than they’d been minutes before, and Rhys’ hand in dangerous territory. “But it seems true: Tamlin’s pet is now owned by another master.”

“You should see how I make her beg,” Rhys murmured, nudging my neck with his nose.

Keir clasped his hands behind his back. “I assume you brought her to make a statement.”

“You know everything I do is a statement.”

The only difference is, Feyre’s aware and consenting this time. Still, the skimpy dress and incredibly graphic touching on Rhys’ part all in the name of creating a diversion isn’t good enough to justify his actions. Rhysand’s created a thinly-veiled excuse to once again, objectify Feyre, touch her inappropriately in front of everyone, and lay claim to her when she’s not his to claim:

“Try not to let it go to your head.”

…I … said with midnight smoothness, “What?”

Rhys’ breath caressed my ear, the twin to the breath he’d brushed against it merely an hour ago in the skies. “That every male in here is contemplating what they’d be willing to give up in order to get that pretty, red mouth of yours on them.”

…His hand slid higher up my thigh, the proprietary touch of a male who knew he owned someone body and soul.

His eyes on the Steward, Rhys made vague nods every now and then. While his fingers continued their slow, steady stroking on my thighs, rising higher with every pass.

People were watching. Even as they drank and ate, even as some danced in small circles, people were watching. I was sitting in his lap, his own personal plaything, his every touch visible to them.

This isn’t romantic, this isn’t sexy, and it’s straight up not okay!

At what point did this series just turn into a horrific Princes Leia/Jabba the Hut smutfic? I know the only ones imagining what it might’ve been like had Leia been chained to Sexy McSexMachine instead of a giant blob are usually the pervy weirdos. Meaning no one in their right minds would want that mental image. Absolutely no one. In fact, the moment that image popped into my head, the final implosion of Rhys and Feyre’s sexual tension was made all the more cringe-worthy. There’s a reason Carrie Fisher spoke so strongly against Jabba and the gold bikini. She knew what it meant to be objectified, something Maas does not succeed in exploiting with Rhys’ choice to put Feyre in these skimpy outfits not once, but twice in this series. While yes, putting her in these outfits is ultimately a con-game, why should he be lauded for still playing by patriarchal rules in the first place? Shouldn’t the correct course of action be to break down those gender barriers?

All I have left to say about that is, I’m sorry, Sarah. You wrote that Leia/Jabba fanfiction. You made your bed. Now lie in it.

I suppose it’s about time to address the elephant in the room: Rhys. Oh boy… I don’t know how someone can pull together a character’s development so offensively, but Maas somehow wins the prize. He spends the entire first book as a lackey to the villain, doing the best he can to humiliate and emotionally manipulate Feyre. Now, we’re expected to believe he’s not only Feyre’s true love (oh, sorry… mate), but a feminist icon? I’m sorry. No. Did we already forget that he drugged her and made her dance for him in Leia’s gold bikini? It happened. I’m not about to let people forget it…

Readers fall all over themselves over him for coming to Feyre’s rescue when she begs to be saved from her wedding to Tamlin. On the surface, he’s set up to directly juxtapose Tamlin’s controlling over-protectiveness by letting Feyre do whatever she likes. Yet there’s still an unhealthy amount of Rhys manipulating situations in order to do what he feels is best for her. Not what Feyre thinks is best for herself, but what he thinks is best. Every single decision Feyre makes is based on Rhys’ influence. Nothing she does is for herself. By making Rhysand’s word law, Maas effectively strips Feyre of her agency, ironically, the one thing Rhys has attempted to help her regain in the first place.

What’s more, I don’t know who any of these characters are outside of their relation to Rhysand. They all revolve around him, because in Maas’ paraphrased words, he’s the most beautiful, powerful, strongest male in the kingdom. I honestly don’t need this overcompensation to make up for how toxic he is as a person. Not to mention, his male friends are nothing but carbon copies of him. Cassian and Azriel share his colouring and Ilyrian wings. I’ve seen plenty of fanart out there depicting the full cast of characters and I can never tell one male character from the another, nor one female character from another. The men (Azriel, Cassian, and Rhysand) are handsome and dark haired, the women (Feyre, Nesta, Elain, and Mor), beautiful and blonde. Again, the only stand-out is Amren, who is woefully underrepresented and poorly used in the novel. When you have a white cookie cutter template for every character in your patriarchal world, you’ve gotta step outside your box to deliver some diversity at some point. Otherwise, everything’s just vanilla with a side of racism.

If you think Rhys is the only male character abusing women in this novel, you would be dead wrong. Every single female character in this series has an honestly triggering backstory involving rape, whether emotional or physical. This novel is undoubtedly the sort of thing that should come with a warning. I’ve seen copies with warnings that the series is not suitable for young readers on the back cover, but it’s both irresponsible to then market it as YA, and not discuss rape and abuse responsibly. In fact, given how frequently Maas uses the rape card and how non-existent any discourse concerning the consequences is, I’d say this is a dire case of romanticising rape. And I’m tired of seeing readers obsessing over series like these en masse. It's doing nothing but perpetuating rape culture.

Mor in particular has a brutal rape backstory. This is made all the more upsetting by how eager her father is to sell her off to the highest bidder, and her desperation to lose her virginity on her own terms:

“I wanted Cassian to be the one who did it. I wanted to choose … Rhys came back the next morning, and when he learned what had happened … He and Cassian … I’ve never seen them fight like that. Hopefully I never will again.I know Rhys wasn’t pissed about my virginity, but rather the danger that losing it had put me in. Azriel was even angrier about it–though he let Rhys do the walloping. They knew what my family would do for debasing myself.”

“I wanted my first time to be with one of the legendary Illyrian warriors. I wanted to lie with the greatest of Illyrian warriors, actually. And I’d taken one look at Cassian and known. … He just wants what he can’t have, and it’s irritated him for centuries that I walked away and never looked back.”

“Oh, it drives him insane,” Rhys said from behind me.

What’s worrying here is that while the men are praised for playing the patriarchal system to protect their women, female characters like Mor aren’t shown the same respect for protecting themselves. Mor’s entire character arc is punishment for her female sexuality, kept completely out of her control. Not once does a female character speak out against her sexual abuse, nor do they seek justice for it.

In a recent interview, Maas has stated that she only writes sex scenes if they further the plot. When literally everyone’s backstory hinges on sex, whether consensual or otherwise, I find that doubtful. If there’s one positive thing i’ll say about Maas, it’s that i’m glad she’s leading the charge for sex-positive female characters. But empowering are these characters really, when they’re defined by their desirability to men and their past sexual traumas? Sure, Feyre has sexual agency, but what else does she have? Especially in a patriarchal world where this is expected of her, and she doesn’t even use this “power” to her advantage…

Look, I’m glad Feyre’s getting pleasured the way she wants it, when she wants it, and the detailed depiction of her sexual stimulation might help girls become more aware of their own bodies and sexuality. But when this is the highest profile series featuring female sexuality in the YA market right now, what kind of example are we really setting here?

Feminism doesn’t begin and end with sexual expression. It’s more than that and Maas’ characters have to join that fight. Especially given it’s one of the highest selling fantasy series in the market right now. Sarah J. Maas is not the feminist role model we need for this generation of girls.

We need more than this.

In short, I’m absolutely shocked and appalled that so many people blindly gave this book 4 and 5 stars. Even those who acknowledge how problematic Maas’ writing is. Is it really worth overlooking blatant normalised rape culture to call something your favourite series? As I said from the outset, we’ve already been there with Twilight. An entire generation of girls fell head over heels for Edward Cullen, a 100+ year old stalker who dictated Bella Swan’s ever action and motivation. Now, here we are again, encouraging a new generation of teens to swoon over this sexy, emotionally manipulative product of rape culture, without any acknowledgement of the consequences.

We need to do better. Starting with readers. Starting with authors. Starting with publishers.

It’s time to hold ourselves accountable for the content we praise and allow kids to read. Because toxic masculinity and rape culture are not values to uphold. We live in a world where the President of the United States can brag about grabbing women by the pussy without recourse. Where old, white men are constantly dictating women’s reproductive rights. Where women are catcalled in the streets and victim blamed for the clothes they wear. Where girls can’t even go out at night on their own without the threat of sexual assault.

Is this really what we want to teach our daughters, sisters, students, friends? That it’s okay, to allow passing men to objectify us, just because they have power over us?

Listen, girls. This is the thing: men have power over us so long as we give it to them. So long as we keep laying down and accepting that we’re weak and in need of defending, they’ll keep doing it. And people like Sarah J. Maas will keep holding to those gender expectations. They’ll keep defining romantic ideals based on hyper-masculine overprotective, possessive men.

It’s up to us to redefine romantic ideals. To tear down toxic masculinity and uplift healthy, equal relationships based on mutual respect.

Because you’re worth so much more than that. You deserve better than Rhysand. Align yourself with people who value you for who you are and not just your body. Listen to them when they praise you for your talents. Accept their recommendations when they stumble across media showcasing aspirational women rising above the status quo. You are more than just an object holding a man’s attention. You are yourself and you deserve the world.

Look beyond the smokescreen of Sarah J. Maas’ works and aspire to be something more.

#sarah j. maas #acotar #acomaf #anti-acotar #anti-maas #fantasy #feminism #YA #young adult #toxic masculinity #female sexuality #rape culture

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echoeternally · 7 years

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Whaddya think of Niles and Rhajat, both as same gender s-supports and as unique characters, with their personalities

Ooh, Fire Emblem question! I like these.

Let’s start with Rhajat, who is Tharja. As an S-Support, she was an obvious choice to be a given, considering the devotion both she and Tharja had for the Avatar in their respective games. Rhajat is overall a softer version of Tharja, I guess because she’s younger, but perhaps her environment helped raise her to be a little nicer. (Just a bit.) She also tries to fit in more with the army, something that Tharja didn’t go out of her way to pull off, if she really ever tried. I like both as characters, but I enjoyed Tharja’s dry, biting, and dark humor more than Rhajat’s, probably because it felt newer at the time.

Niles is a fun character, I think. He perfectly embodies Nohr’s representation, in which they are viewed as full and true enemies in Birthright, but are given vastly more sympathetic perspectives in Conquest and Revelations. NIles is a character with depth, in which his surface appearance is a criminal/thief scum type of guy, but as you get to know him, you learn that he’s fiercely loyal to Leo, and develops unlikely friendships with the rest of the army. Plus, I think a lot of people enjoy saucy double entendres. As the same gender S-Support for the player character, he’s a good choice.

More below the cut, because this gets longer.

Ok, so, I do love that there are same gender options, but I’m very annoyed at the lack of them. Rhajat, while an obvious choice, is from the second gen, and I’m personally not a fan of second gen romances with the Avatar, especially in Fates, where…well, if you never have any of the kids join the army, you’re not missing anything from the core story, excluding all Xenologues. Niles, while a good choice, doesn’t have an overly complex relationship with the Avatar himself. (I hate saying Avatar, btw, because Corrin sounds so much nicer.)

Characters that most certainly should have been same gender romance options would be: Azura, Camilla, Soleil, Felicia, Flora, Jakob, Silas, and Kaze, with maybe room for two more male options. (I think most would want Xander and Ryoma, or otherwise Leo and Takumi, because duh, but I have a personal pick in Saizo, because jealous brother / overprotective charge shenanigans, and probably Shigure, because second gen boy even if I’m not in favor of it.)

Ranting mode engaged below, watch out.

Let’s start with reasoning for ladies. Azura not being a romance option for femCorrin is literally, what’s the word, queer-baiting? She’s literally written as a character with a very specific interest in the player character, and she’s absolutely considered the “canon” love interest for manCorrin. So, that’s a load of crap that she can’t be one for femCorrin, because “no gays allowed.” (Yes, I am fully aware of the late game & story incest thing, but I’m considering that as either an oversight on IS’s team, or perhaps a careful attention to history. Either way, doesn’t change Azura being the big romance option for Corrin, and should have carried through both ways.)

Camilla should absolutely have been a romance option for femCorrin. The way she fawns over manCorrin and gets down to the romance with him, but not femCorrin? She literally fusses and adores femCorrin the exact same way. Furthermore, Camilla is stated several times in spots of the game to like strong women. I get that it doesn’t have to mean that she’s gay, but come on. (Again, I get the incest vibes, but again, this works for manCorrin, and should work for femCorrin just as well.)

Soleil is one that I shouldn’t even have to type out. Yeah, I know the history about the whole “wrongly interpreted” dialogues from Japanese to English. That doesn’t matter in regards to Soleil’s very canon tastes in female characters. Even if one argues that liking cute girls is a thing that people do that doesn’t make them gay, sure, fine. In a game that literally lets people pair up characters for romance and goes the distance to have a female like other females, but literally sticks up its nose at the prominent closing point, ESPECIALLY with the player’s own character, who can literally get with another female that is literally an equivalent to this one? Like…there is no justifying that. I’m not a fan of gen 2 romances with Avatars in Awakening or Fates. But if they’re going to be there, at least try to make it fair.

Felicia and Flora are probably the less commonly desired options, since the above three are, I believe, the big three. However, considering that Felicia has a very specific and special bond with manCorrin, and that it should equally translate to the same bond with femCorrin, that should go without saying that it should work out easily. Furthermore, it’d be cute as all hell, fight me on this. Flora, literally a very depressed, very repressed, Corrinsexual character, is probably the biggest one that should have gotten with Corrin either way. Not because pity party, but because of any character that understands Corrin, while also having a dynamic relationship with them, while also having a very significant dialogue tree that somehow didn’t lead to her falling for femCorrin (are you seriously kidding me, with that wish thing, come on), Flora is easily one of the better options for a gay romance with Corrin that didn’t happen.

Let me try to be a little more curt with the guys, since…this is all old hat. But anyway! Silas is first, because he’s basically the “canon and straight” femCorrin selection. Best friends thing, blah blah, S-Support. I’d roll my eyes at how very designated he was…if he had a completely different attitude around manCorrin. But he doesn’t. Silas is just as adamant about helping manCorrin, and just as intimate, as he is with femCorrin. He literally reads as a character full of love for Corrin, regardless of gender. How does that not make sense as a same gender romance? Because he and Azura should have literally been the top options for the gay players to have.

Kaze makes me want to scream with how painfully obvious of an option he should have been. He’s this really nice guy that is swallowed with guilt over failing to save Corrin. After reuniting with them, he goes to incredible lengths to make amends and renew his loyalty to them. Kaze literally vows to be your retainer by choice, something that Felicia, Jakob, Flora, and Gunter never had. And then…he admits his love for Corrin…only if Corrin is a girl. EXCUSE ME? He literally reads as someone that is over the top in love with Corrin, but only if Corrin is a lady? Come on!

Jakob is literally the same thing as Kaze, because in spite of being instructed to be Corrin’s retainer, he is absolutely mad with devotion. It amazes me that Jakob is just as entranced with manCorrin as he is with femCorrin, but whoops, can’t be gay, so he is literally prevented from getting with manCorrin. There’s no reason why, there’s nothing that holds him back, and if manCorrin confessed love to him or if he did the same confession as he did with femCorrin, it would easily work out. But nope, too gay, can’t have.

Saizo and Shigure are kind of “have them or leave" them options. Yeah, Xander and Ryoma make more sense, because adamant desire to have Corrin reunite with them. Yeah, Leo and Takumi could make sense, because jealous younger brother that actually is crushing on their adopted sibling, which…sounds gross, but whatever, it happens. There’s no second gen male character available, and Shigure makes sense since he’s available on both routes, and probably the most desirable second gen male, which is still gross, but sure.

Meanwhile, Saizo is probably the oddest option. One silly reason is because every other sibling makes sense as a gay option for Corrin, so why not him? Considering how obsessed with Ryoma he can be, it would make an easy jump for him to be easily infatuated by who he’s charged to protect. Tsundere is also fun to have as an option for romance, so why not one for the gay romances? It works nicely. Plus, he dated Kagero before Fates, so guess what that would make him? The ever elusive bisexual representation, golly!

Bonus option overall would have to be Charlotte, because honestly, any royal, noble, or other rich character should do her good for money. How gender honestly formed to be a barrier for her is just slapped on for no reason.

Not every character needed to be a gay option. Having any options at all was nice for IS to give. Fans have made gay hacks to grant those options be available. This is probably a tired series of arguments.

But, they wouldn’t be necessary if we were given a sizable number of selections. Hacks wouldn’t be necessary if fans didn’t have to take the very concept of having gay options into their own hands. And just having the option of gay romances shouldn’t be a gift in today’s world; it should be a given, since players are flexible and each one has a different perspective and experience. There shouldn’t be limits in places that are completely unnecessary.

Niles and Rhajat were decent first steps, but the time for that is beyond over. So, there should be a really attempt to either make a better, diverse cast, or just allow any option for every option. Hopefully, the next Fire Emblem for the Nintendo Switch will at least try to make a difference. We’ll see.

#askecho #tattwege-edgweg #fire emblem #gay options #gay #romance #rant #fire emblem fates #niles #rhajat

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melissawalker01 · 4 years

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On May 3, 1930, a large advertisement for Robert Z. Leonard’s film The Divorcee asked the readers of the Washington Post, “Has Love a Chance in Today’s Hot Pursuit of Pleasure?” Loosely based on Ursula Parrott’s 1929 novel Ex-Wife, the film starred Norma Shearer, who won an Oscar for her portrayal of the title character. From the opening scene in which Jerry, played by Shearer, boldly insists that she and Ted (Chester Morris) get married and “make a go of it” as equals, the filmmakers signaled that Shearer’s character was a quintessential “new woman,” committed to a form of female equality and independence defined by male standards. Jerry’s determination on this point is so strong, in fact, that upon discovering Ted’s affair with another woman three years into their marriage, she promptly retaliates by having an extramarital sexual encounter of her own. Ted, after learning of her infidelity, demands a divorce. Jerry plainly has overestimated the extent of her equality—a sentiment echoed in the advertisement when it teased: “Her sin was no greater than his—but she was a woman!”

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Once again single, Jerry vows to enjoy her freedom and to keep her bed open to all men except for her ex-husband. She quickly, however, becomes dissatisfied and physically drained by her new life of sexual adventure. Escape presents itself in the form of a married friend named Paul (Conrad Nagel), who proposes to divorce his wife Dorothy (Judith Wood) so that he and Jerry can begin a new life together. Indeed, Dorothy is Jerry’s counterpoint throughout the film. Whereas Jerry is beautiful, Dorothy has been tragically disfigured in a car accident on the night of Jerry and Ted’s engagement. Jerry and Ted married for love, but Paul, who was heavily intoxicated when the accident occurred, married Dorothy only out of guilt. While Jerry accedes to Ted’s insistence of a divorce, Dorothy refuses to concede marital defeat and will not give Paul the divorce he so desperately desires. Comparing herself to Dorothy, Jerry realizes the many ways that she has wronged her own union with Ted. Jerry thus arrives, as one reviewer explained, at “the realization that her own marriage has been a failure because she has not had the same determination [as Dorothy] to see it through.” She resolves to find Ted, and the two have an emotional reunion in which they promise to make their new marriage a success.

By the conclusion of The Divorcée, Jerry—and by extension, the audience—have learned several lessons. First, Jerry’s desire for marital equality is foolish and unrealistic. The film does not criticize a sex-based double standard; rather, its message is that in trying to emulate men, women can lose sight of what is truly important: love and marriage. The pitiful Dorothy is the true female center of the film—she is not beautiful, but she appreciates the value of being married and is willing to fight for Paul. Moreover, the film says, sexual freedom does not ensure happiness, especially for women. Prior to their mutual transgressions, Jerry and Ted plainly enjoy a fulfilling sexual relationship. Jerry’s life as a wanton divorcée, however, is unsatisfying, and only a chance encounter with Paul prevents her from becoming a hardened seductress. Finally, while divorce is sometimes a necessity, it is also frequently the result of easily avoided misunderstandings. Only in reunification—a theme that understandably became a popular Hollywood ending—can Jerry and Ted rediscover their former happiness and lead constructive lives.

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The Divorcée quickly became one of the “stand-out hits of the early summer season” of 1930, and popular demand extended its run throughout the nation. The media’s descriptions of the film—press coverage alternately described it as “a chapter out of modern life,” “a Metro-Goldwyn-Mayer production dealing with a great social problem,” and “the most sophisticated treatment of the question of divorce”—highlighted its varied appeal to audiences. By 1930 divorce had indeed become a reality of everyday American life. At the same time, however, many Americans were deeply anxious about what the escalating divorce rate meant for the family, women, and the very future of the nation. Such fears were fanned by an emergent group of experts who spent the first several decades of the twentieth century identifying a “crisis” in American marriage. These self-appointed experts, some from within the academy and some with little or no formal training in sociology or related fields, came from different parts of the political and ideological spectrum. They agreed, however, that marriage (particularly for the white middle class) was in a period of crucial transition and that married couples could not handle this transition effectively on their own. The general belief that marriage was in trouble was hardly new. Social critics and clergyman, in fact, had been decrying a “marriage problem” for most of the nation’s history. But these early critics had focused their efforts on convincing the American public of the indissolubility of the marital union and, if this former effort failed, of the need for uniform divorce laws in order to prevent most divorces. By the 1920s, however, this debate had grown increasingly stale and the arguments ineffective. The ostracism that had once accompanied the decision to divorce had subsided, and the voices of experts began to supplement, and in many cases replace, those of religious authorities in the national conversation about marriage in the United States.

As the nineteenth-century understanding of marriage as a duty faded, experts worked to convince Americans to take an active interest in the health of their marriages. They focused much of their attention on women, the traditional guardians of the home and the individuals deemed primarily responsible for the continuing changes in family life. Experts believed that if marriage was going to be a “companionate” venture—a relationship based on love and satisfying sexual relations—divorce was an important safety valve for husbands and wives who were trapped in loveless unions. They hoped, however, that by studying marriage in an objective manner, they could develop strategies that would slow the rising divorce rate and, more important, improve the general quality of American marriages. To this end, experts launched research studies intended to quantify marital success and taught marriage courses at universities. Some even began to experiment with a European technique known as “marriage counseling,” anticipating that they could prevent both ill-advised unions and unnecessary marital breakups. These efforts, in turn, laid the groundwork for a new understanding of what it meant to be married in the United States.

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The nineteenth-century idealization of married, romantic love was a key ideological origin of this transition. Stereotypes of Victorian prudery aside, many American men and women—especially those from more privileged economic backgrounds—clearly expected to have intimate, loving relationships with their chosen mates. During courtship, they exchanged impassioned letters and expressed hopes that their fervent feelings would not subside after marriage. Once married, they expected to place their obligations to one another and to their growing families above those to their extended families and their civic responsibilities. Nineteenth-century Americans, therefore, gradually began to view marriage as a central life experience from which they could derive happiness and forge satisfying personal bonds. This ideal, of course, was often difficult to achieve. The Victorian belief in the innate differences between men and women, in particular, impeded the full realization of marital intimacy and romance. Many husbands and wives, in turn, struggled to share common experiences and interests with their spouses.

Nineteenth-century marriage advisers (primarily ministers and physicians) nevertheless regarded this new emphasis on love with a sense of trepidation. One root of their concern was the fact that many nineteenth-century Americans believed love to be an uncontrollable emotion. While they considered it to be a prerequisite for marriage, they did not necessarily believe that all love was eternal. If marital love was lost, no prescribed action could recapture the feeling. Critics, therefore, tried to inject a more practical view of marriage into discussions of the institution. They argued that love was a choice and that young married couples could take concrete steps to ensure that their unions remained happy. In print, advisers reminded their readers that if these efforts failed, their marriage vows remained binding. It was desirable, in other words, to be content—rather than miserable— while fulfilling ones’ duties. When nineteenth-century marriage advisers pointedly rejected the possibility of divorce, however, they betrayed a fear that not all Americans understood the sanctity of their marriage vows. This concern was not necessarily misplaced. Divorce, in a very limited form, had been available in the United States as early as the colonial era and spread in the years following the American Revolution. No sooner, it seemed, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. While the two acts—dissolution of empire and dissolution of marriage— existed on vastly different scales, the language used by the patriots and lawmakers to justify both was strikingly similar. Furthermore, the legitimization of divorce beyond the very strict rules of English common law helped the American legal system to sever its dependence on the English model. The theoretical legitimization of divorce as a means of ending a “tyrannical” (or sexually promiscuous) union, in other words, was ingrained in a distinctly American legal system from its onset.

The mere legality of divorce, however, did not ensure that divorce was widely available or publicly condoned after the nation’s founding. Until well into the twentieth century, couples could not divorce legally by mutual consent. While divorce laws varied widely from state to state, “fault” divorce always required that one spouse prove that the other was guilty of adultery, desertion, or some other serious failing. Until the mid-nineteenth century, an aggrieved spouse in many states had to petition his or her state legislature in the hopes of obtaining a divorce decree. Only as the number of petitions proliferated did legislators begin to move divorce cases into the courts.

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The nation’s slowly rising divorce rate went largely unnoticed until the 1850s, when it became a rallying point for social critics who saw the rate as irrefutable evidence of a creeping moral decay in American life. In the 1870s and 1880s, many state legislatures made their divorce laws more stringent in (unsuccessful) attempts to decrease the number of couples eligible for divorce. Their efforts became even more urgent once a Department of Labor study in the late 1880s confirmed that the United States led the world in divorce. Interestingly, the conservative opposition to divorce rarely called for its prohibition. The potential for chaos if couples resorted to extralegal means to end their marital unions, paired with the laws’ origins in the Revolution, ensured that calls for an outright ban were muted. Plus, conservatives did not have a ready alternative to divorce for unions in which spouses flouted moral convention by committing adultery or violently assaulting their partners. The common trope of the victimized wife seeking a divorce as a last resort was too powerful an image for divorce conservatives to assail. Instead, they fought unsuccessfully for the passage of a federal divorce law that would supersede the lax laws of so-called divorce havens such as Indiana, South Dakota, and, later, Nevada.

Some men and women in the nineteenth century did support relaxed divorce laws, but their views could hardly be classified as prodivorce. Several women’s rights advocates, notably Elizabeth Cady Stanton, were in favor of divorce because it gave women a modicum of control in the face of an otherwise patriarchal institution. This stance proved divisive, however, as many other activists believed that divorce hurt women by leaving them without financial support. Other divorce supporters asserted that the availability of divorce allowed for better marriages. They pleaded in its favor, therefore, not because the availability of divorce subverted existing marriage norms, but rather because its accessibility augmented the value of marriage to American society. Their primary argument was that since the marital union was perfectible, any unions that failed to reach this high standard should be dissolved, leaving the divorced couple to pursue perfection with better-suited mates. This camp held that, at the present time, divorce was necessary but envisioned a future in which it could be eradicated. The exact details of this plan were vague, although they generally involved making it more difficult to get married. One commentator, for instance, felt that “the greatest social evil in our country is the marrying habit.”

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What was truly problematic about the “marrying habit” in the minds of many Americans was not only its relationship to the rising incidence of divorce but also the perception that the wrong types of people were getting married and having children. Specifically, a significant number of the nation’s most educated women were remaining single because (among other reasons) they did not want to give up their careers—as would be expected of them—after marriage. The fight for women’s rights, as well, threatened to separate women from their traditional duties as wives and mothers. Furthermore, the birth rate among native-born, white citizens had been in a steady decline since the early nineteenth century, whereas the immigrant birth rate (considered far less desirable at the time) was quite high. President Theodore Roosevelt undoubtedly did not assuage such concerns when he popularized the idea that given present trends, native-born, white U.S. citizens were in danger of committing “race suicide.” Such rhetoric, when paired with anxieties about the divorce rate, contributed to a full-fledged sense of crisis in regard to the state of family life in the United States. Ironically, only a small percentage of Americans were getting divorced in the late nineteenth and early twentieth centuries. According to some historians there were fewer than two divorces for every thousand marriages in 1870. Certainly, many other couples created their own extralegal marital “exits,” prompted either by relationship woes or other necessity. The evidence nevertheless suggests that most Americans’ motivations for divorcing were hardly frivolous. Court records, for example, indicate that husbands and wives only sought to end their unions in extreme circumstances, such as when an offending spouse had long since disappeared, failed to provide basic necessities, or had committed adultery.

While many divorcing men and women also knew what the courts needed to hear in order to decide in their favor and may well have tailored their cases to fit such expectations, the low divorce rate nevertheless points to the serious personal and social consequences that accompanied the decision to divorce in Victorian America. At the time, after all, “evil” was the word most frequently paired with “divorce” in the popular press and in religious and legal circles. Most popular fiction, in turn, portrayed divorce as shameful and emphasized its harmful effects on individuals and society at large. The deleterious consequences of divorce were particularly evident for women. For wives without independent financial means, the infrequency of alimony allocations meant that divorce could lead to reduced circumstances or even destitution. Plus, divorce clearly represented a grave failure for any woman who embraced a Victorian identity as the moral guardian of the home, especially if her husband had succumbed to temptation and committed adultery. Many Americans believed divorced men and women to be morally suspect, and the divorced faced an uncertain social future based on their decision to end a marriage, no matter what had motivated them to do so.

The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).

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There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.

The American marital entity has an interesting lineage as a legal category. It is directly tied to one religious set of concepts and beliefs. Looking back into its legal history, we see that marriage was not created de novo as an American institution. As a legal relationship, its content and terms were drawn from British institutions that had evolved rules exemplifying rigid relationships.

In England there was a direct historic connection between the state religion and the legal treatment of intimate relationships. Marriage was a sacrament administered by the church and subject to its rules. Under the common-law system in effect in England until fairly recently (as legal institutions go), issues concerning the creation and dissolution of marriage and other aspects of family formation were left to the ecclesiastical courts. It was not until the passage of the Matrimonial Causes Act of 1857 that jurisdiction over marriage and divorce was transferred to civil courts. Consistent with the precepts of their religious approach, these courts viewed marriage as a lifelong commitment. An annulment or, failing that, desertion, was virtually the only route out of an unhappy union. The Church of England’s ecclesiastical courts could grant a divorce “from bed and board,” which allowed couples to live apart but not remarry. Divorce was theoretically available, but only through a special act of Parliament, and between 1800 and 1836, an average of three such bills of divorce were granted each year. Generally, access to divorce was limited until the late twentieth century. This view of the presumed permanence of marriage was also evident in colonial America, where divorce could be granted by a secular judiciary, but this rarely happened. In fact, prior to the mid-twentieth century in the United States, judicial divorce although increasingly more common over time than in the colonial period, was available only for “cause.” “Cause” could include adultery (in New York this was the only cause that justified divorce in 1787), as well as “impotence, adultery, intolerable severity, three years’ willful desertion, and long absence with presumption of death” (Vermont in 1798) and “gross misbehavior and wickedness in either of the parties, repugnant to and in violation of the marriage covenant”. Today in Utah you can seek a divorce on various grounds including adultery, impotence and desertion. Speak to an experienced Draper Utah divorce lawyer to know the various under which you can seek a divorce from your spouse.

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An “innocent” spouse could ask the state to sever the marital tie when she or he was successful in demonstrating the “fault” of her or his mate. Fault grounds indicated there had been some egregious offense to the very marital union. States such as New York at that time permitted divorce only for very serious offenses that were considered to undermine the nature of the marital connection, such as adultery. Other states considered the amorphous category of “cruelty” to be a sufficient basis for dissolution. Colonial divorce laws varied considerably by region, with the northeastern states tending to be slightly more liberal than their southern neighbors. In the United States there was no established state religion, but the relationship between religious perceptions and beliefs about marriage and the construction of state principles regarding that connection were still evident, if attenuated. The individual states incorporated common-law concepts and definitions from the religiously shaped English rules into their laws governing family. American judges tracked the religious rhetoric of their English counterparts when considering issues involving the family. Divine laws governed family relationships, setting out the natural order for the individuals who entered them. The content of the marital relationship was also divinely structured. In what has become one of the most famous concurrences in the American legal tradition, in the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley made what is still considered the classic statement regarding the common-law perception of the divinely determined distinct roles of husbands and wives. The organization of the traditional family in the British and American legal tradition was also patriarchal, with the husband—“head” of the family—owed obedience and domestic and sexual services from his wife. In return, he was obligated to support her and their children. The husband’s role conferred rights as well as responsibilities, including the right to punish family members. Because he bore responsibility for their actions, a husband had the right to reasonably chastise both wife and children. His support obligations also gave him a corresponding right to the earnings of his wife and children, and to control over their property.

Further, the view of marriage expressed by Justice Bradley and the divinely ordained respective positions of the spouses also limited the expectations and opportunities for married women in the larger society. The marital family’s hierarchically organized and well-defined gender roles placed the spouses in different spheres. Women, excluded from many of the public aspects of life, were perceived as appropriately dependent. As the Bradley concurrence in Bradwell expressed, their true calling was considered to be the home and family.

This ordering of domestic life was intuitive—a response to the natural dependency of women. Common law imposed disabilities on women that supported this ordering of the world. Married women were not able to own property or make contracts. In some instances they could not even be held responsible for their own torts or crimes. Their husbands, perceived as controlling them absolutely, were charged instead.

The common law expressed a structure in which the distinct specializations of the spouses complemented each other: the wage earner and the housewife; the protector and the protected; the independent and the dependent. Each spouse needed his or her complement in order to attain and maintain a whole, complete family entity, one that provided for all its members’ needs. This specialization, bringing together the head and the heart of the family in the form of husband and wife, allowed the marital family to function in a self-sufficient manner, providing both economic and domestic resources to the unit.

This unequal, if complementary, positioning of men and women within the common-law family became problematic for women when divorce became more prevalent under no-fault statutes. These statutes changed a fundamental aspect of marriage. Marriage in its common-law manifestation was considered a lifelong commitment, but no-fault divorces ushered in a revolution in our way of thinking about the permanence of the relationship of marriage. No-fault meant much easier access to divorce. In many states divorce became available on unilateral demand of one spouse even over the objection of the other that the relationship could be salvaged. Men who wanted to be free of their “faultless” wives (as determined under the previous fault divorce statutes) no longer had to bargain with those wives and buy their complicity in the divorce process through concession of property or other economic incentives.

Initiated by both wives and husbands, no-fault opened the divorce floodgate and exposed the economic vulnerability of the common-law assignment of ownership of all wages and property to the wage earner. Wives were not considered entitled to a share of property accumulated during the marriage, since they did not earn the money to buy it and typically title was in the husband’s name. As a result, women found themselves and their children destitute at divorce.

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The discouragement of married women from participation in the workplace and investment in a career also had more general negative economic implications. After a divorce, women found that they had to work in the marketplace as well as in the home, yet the old vision of marriage had discouraged them from honing the skills they needed to do so. All this has changed, of course. The no-fault revolution coincided with another revolution in the way we understand the world—the gender equality movement, which ushered in massive changes in all phases of life, including marriage.

No Fault Divorce In Draper Utah

The move to no-fault divorce might have altered our view of marriage, but the gender equality revolution altered the way women perceive their societal, nonfamilial roles. It seems hard to believe that it was less than a century ago that women won important political and civil rights, such as the vote, which was achieved in 1920 with the passage of the Nineteenth Amendment. Even after women achieved the right to vote, they were still excluded from service on juries. Although the first women were summoned to jury service in 1870, as a rule, women were systematically denied or exempted from jury service for the next century, usually for reasons that were considered “benign” and “practical”. It was not until 1994, in J.E.B. v. T.B., that the Supreme Court declared that peremptory challenges based on sex violate the equal protection clause of the Fourteenth Amendment. Until recently, the common-law rule was that a woman’s domicile (essentially her legal place of residence) was always the same as her husband’s. This caused difficulty for many married women, as a person’s domicile is used in determining numerous legal entitlements, categories, and qualifications. Because a woman’s legal identity had traditionally been merged with that of her husband, her domicile was assigned based on her husband’s place of residence, and a woman had no control over this determination. As divorce laws changed and women’s destinies were less tied to the institution of marriage, the inappropriateness of this situation became more obvious. The common-law rule began to change in the 1970s, and the American Law Institute finally ratified this change in 1988.

Prenuptial Agreements

Prenuptial agreements have come to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties. Even while they do so, recognition is typically given to the changes in gender expectations. If you are planning a divorce and have a prenuptial agreement in place, consult with an experienced Draper Utah divorce law. The lawyer will review your prenuptial agreement and advise you on whether the agreement will be held valid by the court.

Child Custody And Child Support

The past few decades have witnessed a dramatic increase in the divorce rate in the United States and elsewhere, a phenomenon that reflects and influences changing social attitudes toward marriage and the family. When offspring are involved, the divorce process becomes further complicated by considerations over custody and visitation rights. And when the parents themselves cannot resolve these issues, the courts are faced with the difficult task of making a custody decision.

First, despite important differences in the amount of time they spend with their infants and young children, both fathers and mothers are significant figures in the infant’s world from a very early age. By the end of the first year, infants recognize both parents and prefer them to unfamiliar adults. By this time and increasingly during the second year, infants respond differently to each parent, reflecting the development of a rudimentary appreciation of each parent’s unique role in their world. The research indicates that there are more similarities than differences in infant responsiveness to fathers and mothers: They protest separation from either parent, delight in being reunited with them, and play comfortably in the presence of either father or mother. By all accounts, it is apparent that infants develop emotionally salient attachment relationships with each parent by the end of the first year. In short, both mother and father are “psychological parents” to their young infants, even when the father does not assume major caregiving responsibilities. There is every reason to assume that the psychological salience of each parent persists as the child grows older.

Second, even though both parents are important figures in the infant’s world, mothers and fathers differ significantly in their caretaking roles and responsibilities in most homes. Mothers typically assume basic caretaking tasks such as feeding, cleaning, dressing, soothing of distress, and preventative protection from harm. When they play with their babies, they use low-key verbally-oriented and toy-mediated games. In contrast, fathers are typically much less involved in routine caretaking tasks. Rather, they spend a greater proportion of their time engaged in play–specifically, a vigorous rough-and-tumble, physically stimulating kind of play.

The adjudication of child custody disputes raises important and interesting questions, among them the role of fathers as caregivers. For many years, courts have assumed a preference for the mother, contending that a mother’s nurturance and love constitute irreplaceable components of early socio-personality development, particularly during the “tender years.” More recently, however, judges have been using a more egalitarian “best interests of the child” guideline, in which mother and father can compete on a more equal footing for the custody of offspring. Yet this new guideline is a mixed blessing. Although it opens the door to fathers, its conceptual ambiguity permits a wider latitude of subjective judgment on the part of judges, which often results in an implicit maternal preference. The question of what are the child’s “best interests,” and how these may be served by a custody decision, is crucial if this decision-rule is to play a useful role in the custody adjudication process.

In hearing a custody dispute, a judge is faced with an unusual and difficult decision. Most legal disputes focus on the documentation of facts relevant to a case; child custody decisions entail more subjective judgments of parental caregiving competence. Furthermore, custody disputes cannot be resolved on the basis of judicial precedent. Rather, they must be addressed on a case-by-case basis, taking into consideration the unique history and circumstances of the family in question. The judge’s decision-making is further complicated by the predictive nature of the custody award. That is, he or she must consider the long-term ramifications of the decision, including the future economic and living conditions of each parent, the developmental needs of the child, and the potential availability of extrafamilial support systems. Finally, custody decisions rely heavily upon a judge’s discretionary powers in applying legislative guidelines to the particular family in question.

To be sure, most parents who divorce can agree on custody of the children without seeking judicial help. Despite the dramatic increase in the rate of divorce over the past two decades and the broadening of legislative guidelines to put parents on a more equal footing in seeking custody, fewer than 15% of the couples who divorce will proceed with a fully contested custody battle. And, of course, the overwhelming majority of custody awards are to the mother: Fewer than 10% of divorce decrees award children to the father. In many cases, fathers who receive custody do so with the consent of the noncustodial mother.

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But although the proportion of disputed custody cases seems to be stable, the absolute number of disputes is increasing sharply due to the rising divorce rate. Coupled with the gradual changes in parental roles evoked, in part, by the increasing number of working mothers, it is reasonable to expect that the number of divorce petitions in which both parents want custody will continue to increase in the years to come. Therefore, it is important to clarify the guidelines by which judges resolve these disputes. The legislative guideline that currently prevails in most states–that is, awarding custody according to the “best interests of the child”–is historically the least explicit. Interestingly, English legal tradition long asserted a paternal preference, reflecting a time in which offspring were regarded as heirs to privilege and wealth and as parental property. Thus the father was viewed as the primary guardian of his legitimate children and, in the event of a dissolution of the marital bond, he assumed exclusive custodial rights. With the changes in social structure wrought by the Industrial Revolution and changes in social philosophy provoked by writers like Locke and Rousseau, this common law assumption gradually broke down. Instead, by the 19th century, both English and American law put the wife on an equal footing with her husband: Both were to receive equal consideration in a custody decision. In practice, however, this usually resulted in an implicit maternal preference, because custody decisions were based on evaluations of parental fitness and wives, as the customary initiators of divorce action, were in a better position to argue against their husbands. Concurrently, an explicit maternal preference when the children were in their “tender years” (generally speaking, under the age of seven) helped to consolidate this implicit bias for the mother in the courts. In short, changing judicial guidelines were reflecting changing social values. Childhood was increasingly viewed as a period of nurturance and education, and mothers typically assumed a major role for both. Early in the 20th century the maternal presumption became consolidated in judicial decision-making, sometimes by explicit statute but more often in the form of case law.

Jurists assumed that, except in instances when the mother was clearly unfit, it was consistently best for the child to benefit from the love and nurturance provided by the mother. They were supported in this assumption by contemporary psychoanalytic theory, which stressed the unique role of a mother’s love to early psychological development.

More recently, however, the maternal presumption has been increasingly questioned in favor of a more egalitarian guideline. Much of the impetus for this reconsideration has come from social critics who regard the maternal preference as inherently sexist and a perpetuation of traditional gender roles. The dramatic rise in the number of working mothers in recent years and the concurrent increase in demand for infant and preschool childcare services are particularly salient manifestations of the changing American family. Thus the traditional family system in which mother is a fulltime caregiver is no longer the norm, and this has undermined the rationale for an explicit preference for mother in custody disputes. In addition, of course, there are a number of instances in which an explicit maternal presumption is clearly inappropriate, such as when the father or another person has assumed sole caregiving responsibilities, or when the mother is abusive or neglectful. Finally, many critics contend that the maternal presumption focused attention on judicial evaluations of parental fitness rather than on child-centered concerns. Thus the purpose of the best interests guideline is to encourage an appraisal of the custody dispute in light of the contributions (actual and potential) of each parent to the child’s present and future needs.

Problems with the Best Interests Of The Child Guideline

This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted. A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child’s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?

There is no easy answer to this question, and opinions vary widely. Some legal scholars advocate a more limited interpretation of the child’s interests in order to curtail the court’s discretionary powers in deciding child placement cases (e.g., custody, foster care, etc.). On the other hand, some experts argue that “psychological parenting” should be the primary consideration in determining child placement; that is, to whom has the child developed a lasting emotional bond? There is, in short, no clear consensus concerning what constitute the child’s primary interests in determining a custody award.

Assuming that the best interests guideline is meant to include factors other than physical well being alone, a second question concerns the limits of this construction. That is, how do we evaluate the parental caregiving practices that promote the child’s best interests? Is one parent’s warm but permissive approach preferable to another’s less affectionate limit-setting? Should judges prefer a custody arrangement that is likely to foster a strong traditional gender identity in the child? These and a range of similar questions surround most custody decisions and concern the implicit goals and values that underly a court’s preference for one parent over the other.

It is doubtful that there is much broad consensus within most Western societies concerning these child-rearing goals and practices. As with differences in lifestyle, parents vary greatly concerning the traits and characteristics they seek to develop in their children, and they employ a range of practices for achieving these goals. This diversity contributes to the heterogeneity of a society, in fact, and courts have traditionally hesitated to infringe upon parental freedom to raise their children as they prefer. Indeed, apart from those instances in which state intervention is mandated by manifest child abuse or neglect, greater concern has been voiced over the state’s overregulation of parental decision-making in areas such as education, religious training, and medical care. In short, society encourages a great deal of freedom and diversity in child-rearing goals and practices and, by and large, the courts have insured this freedom. In the adjudication of child custody disputes, however, judges frequently rely on subjective judgments of a parent’s caretaking style that are often based on personal values and beliefs. Sometimes these judgments concern the “moral climate” of the home. In some cases, a judgment is based on a parent’s occupational commitments, political affiliations, expectation of remarriage, or economic circumstances rather than his or her relationship with the child. In short, these judgments of caretaking often involve intuitive, usually unarticulated value judgments that are relative to the values and beliefs of the judge determining a custody settlement. These values are likely to reflect sociocultural and social class biases as well as religious beliefs and moral attitudes. Importantly, they usually entail judgments of parental fitness, with secondary regard for their actual or potential effects upon the child. Thus a second difficulty with the best interests guideline concerns judging the parental practices that contribute to a child’s best interests. In the absence of a prevailing social consensus, judges tend to use their own intuitive value judgments that may or may not reflect child-centered concerns.

It is important to note, however, that intuitive judgments of parental practices are not limited to jurists. Indeed, “expert testimony” from various sources, including psychiatric witnesses and social workers, has been criticized as being largely subjective and value based, and thus unreliable. In other words, any subjective assessment of a family is likely to result in speculative and unreliable judgments. Furthermore, this unreliability is especially likely when the family is under stress (as in a custody battle), when normal patterns of interaction are affected by emotional turmoil. Thus it is doubtful whether assessments of family interaction at the time of a custody dispute–by a judge or an “expert witness”–yield meaningful information about parent-child relationships. A third ambiguity in the best interests guideline concerns the time frame within which a child’s interests are appraised. Divorce presents parents and children with immediate and difficult adjustments. Should judges seek a custody arrangement that helps the child to negotiate these short-term transitions? Or should longer-term concerns take precedence if they conflict with more immediate needs? These, too, are questions of judgment about which legislative guidelines or judicial precedent offer little guidance.

Taken together, the major difficulty with the best interests guideline is the broad interpretational latitude permitted judges in deciding custody disputes. Disagreement exists concerning which of the child’s many interests should be included in a judge’s deliberations, how these interests are translated into judgments of parental child-rearing practices (and how these practices should be assessed), and whether short-term or long-term concerns should take precedence. These conceptual ambiguities thus delegate a good deal of discretionary power to judges, with the result that custody decisions may be based on implicit value judgments that are relative and thus inappropriate to legal decision-making. Of course, these interpretational problems are most acute when the child’s best interests are broadly construed, but to some extent they are inherent within any such inclusive formulation.

In view of this, some legal scholars have called the process of child custody adjudication “indeterminate”–that is, there are often no reliable, objective and legally satisfying ways of awarding custody to a parent according to the child’s best interests. Whereas some custody cases are always relatively easy to resolve (such as when one parent is abusive, or has abandoned the family, and the other parent has not), for the majority of cases there exist no generally accepted, easily applied decision-rules by which the child’s best interests may be determined fairly and objectively. The same case presented to two judges may be decided in very different ways. The indeterminacy of child custody adjudication also has important implications outside the courtroom. Legal guidelines usually serve as negotiating parameters by which the parties to a dispute can assess their relative chances of success in adjudication and modify their demands and expectations accordingly. Under the best interests rule, fathers and mothers are provided little information of this kind. Thus articulate and consistent custody guidelines are necessary both for the adjudication process and for the interpersonal bargaining that precedes it. What is the solution to judicial indeterminacy in custody cases? Some have suggested a return to more specific, all-encompassing legislative decision-rules (e.g., custody awarded to the mother if the child is age 5 or younger; custody awarded to the same-sex parent with older children). This would limit judicial discretion, but a proportion of disputes would certainly be resolved unfairly. Another proposal is for a greater emphasis on predivorce mediation to encourage parents to seek their own solution to the custody dispute short of a court battle. A third–and more radical–alternative is to decide custody disputes by some random process: in essence, a judicial coin-flip.

Such an approach would acknowledge the inherent inability of the court to make an objective, reliable custody award, and would prevent the noncustodial parent from feeling that he or she was judged to be a less adequate parent than the spouse with custody.

Short of these alternatives, it is clear that judicial decision-making in custody disputes entails highly idiosyncratic considerations that must be addressed on a case-by-case basis. The history of the family in question, the wishes of the child, the nature of the temporary custody arrangements, the quality and quantity of predivorce parental caregiving involvement, and prospective living conditions for the child with either parent are all considerations (to name a few) that should figure prominently in a custody award and that are likely to vary from one family to another. The important question, however, is whether there exists a valid overall framework within which these factors can be considered and by which further information may be requested and evaluated. In other words, judges and lawyers require some general understanding of the nature of family functioning in intact and divorced homes in order to properly interpret and weigh these considerations relevant to the child’s best interests. Operating within such a framework, jurists may be less likely to base custody decisions upon idiosyncratic and value-laden considerations. It is in providing such an overall knowledge base that psychological research may have a limited but important role in the adjudication of child custody disputes. This is particularly true concerning the role of fathers as caregivers, which is the topic of this review.

One very important factor differentiating mother-child from father-child relationships is the quantity of caretaking. In traditional homes, of course, the mother is usually relegated childcare as well as other domestic chores while fathers spend most of their day away from the home. With the reappraisal of gender roles during the last decade, one might anticipate a softening of these traditional childcare assignments within the home. Several recent studies of time use suggest, however, that fathers are still largely uninvolved in routine caretaking tasks.

Taken together, these differences in the quality and contexts of mother-infant and father-infant interaction reflect a basic difference in each parent’s role vis-à- vis the baby. In most instances, the mother is the infant’s primary caretaker, even when she is employed outside of the home. That is, she more typically provides for the baby’s basic needs–feeding, bathing, diaper-changing, soothing of distress, preventative protection from harm, and similar ministrations–as well as being a salient social partner in low-key play. In contrast, the father’s typical role as a secondary caretaker is less focused around specific caregiving activities and more focused on vigorous, physically stimulating play with the baby. Play is thus a more basic interactive context for infants with their fathers than with their mothers; in addition, different kinds of play activities also distinguish each parent. In short, infants begin to know and develop expectations for each parent in somewhat different social contexts.

Does this division of roles mean that fathers are less competent than mothers in basic caretaking tasks? Evidently not. If you are a father, speak to an experienced Draper Utah divorce lawyer for advice on how you can get custody of your children.

Fathers are competent and responsive caretakers, whether their competence is appraised in terms of the occurrence of certain caretaking behaviors or their responsiveness to infant cues. Similarities in mother-infant and father-infant nurturant and caretaking activities have been noted for parents in other cultures as well. Such findings are ironic in view of the strong tendency of fathers to eschew caretaking roles at home. In other words, fathers can be highly competent caretakers when called upon to do so, even though they seldom assume such responsibilities spontaneously. Instead, they spend a greater proportion of their time engaged in vigorous, physically active play with their infants.

Taken together, the research on mother-infant and father-infant relationships indicates that fathers are preferred as play partners from a relatively early age, and mothers are preferentially sought when infants are fatigued, alarmed, or stressed. As earlier indicated, the paternal preference is unsurprising in view of the contexts in which infants typically encounter their fathers and the kinds of exciting, physically active games fathers play. Infants seem to learn that fathers are fun to play with during the second year. Similarly, infants’ preferences for their mothers under stress are also unsurprising in view of the maternal caretaking role in most families. Mothers typically feed, bathe, clothe and, importantly, comfort their babies when the infants are distressed; infants seem to learn early on that their mothers are a source of soothing. Thus mothers and fathers differ importantly both in their caretaking roles and, it seems, in how they are perceived by the baby from an early age. Mothers as primary caregivers in most families spend a greater amount of time with their infant sons and daughters and assume greater responsibility for routine caretaking tasks, even when they also work outside of the home. Fathers as secondary caregivers spend less time with infants overall but devote a greater proportion of their time to physically vigorous, arousing play. These differences in parental involvement are manifested early in differences in infant responsiveness. Infants prefer their fathers as play partners and respond more positively to them in these situations. Under conditions of stress, however, they turn to mothers, reflecting different expectations for each parent that develop during the first year. In short, infants learn about their mothers and fathers in different contexts, and develop different expectations for them as a result.

Often a child can become a mere cipher in conflicts over custody. Finding the right balance between the claims of two separating partners is not easy. Judges have more commonly been willing to award custody of young children to mothers on the ‘tender-years’ principle: the idea that, because of the strong natural bond between mother and child, if young children cannot be with both parents, they are better off with their mother. So, while the case for women in the custody battle may be strong, it is increasingly recognized that men, too, have grievances to be addressed and that current law can disadvantage them in a number of ways. In the vast majority of cases, custody of children on divorce is awarded to women, and contact orders, largely made to men, are often broken. There are particular cases where court decisions are likely to strike anyone as totally unfair—a non-working wife who ends a marriage because of another liaison may well be awarded children, house, and most of the couple’s financial assets, notwithstanding her responsibility for the collapse of their joint family-building project and her lack of any financial input. She is free to introduce unofficially into the family structure another man to replace the natural father in the lives of her children. With the growth of these disadvantages has come the loss of many of the previous advantages of marriage for a man, as traditionally the best way of securing not only a steady sex life, but also status in the community, and a substantial and satisfactory personal project in which he could reasonably regard himself as a vital element.

Given these tensions, it is not difficult to see why the closing years of the twentieth century should have seen demands for a new approach to child custody based on the principle that, even if divorce can end relationships between adults, it is important to maintain the child–parent relationship. The presumption is that a continuing relationship with both parents will enable both of them to offer physical, emotional, and financial support to their children. The practical goal, then, becomes a matter of seeking to ensure reasonable contact for both parties. But ‘reasonable contact’ is an imprecise concept, varying from contact on alternate weekends to a more extensive and rigid division of time mapped out in terms of days or even hours per year. So joint or shared custody, in the sense of children’s time being relatively equally divided between parents, has become the arrangement of choice for some on the basis that it finally establishes the principle of equality and the equal legal standing of women and men. It may also be promoted from the child’s point of view, as it is, for example, in parts of the USA, where co-parenting may be advocated as a matter of a child’s rights—in this case, a right to live with either parent for some of the time. But the burden such arrangements impose on children should not be underestimated. It is often argued that disruption for children can be justified if it represents an escape from extremely difficult domestic situations. But, in general, the effects of divorce on children are poor and can be measured in terms of low educational achievement, difficult relationships with parents, especially fathers, and other emotional problems.

So all this leaves us with the fundamental question of who should care for the child when a couple splits up. For this we need to understand the judgement King Solomon passed. There is, though, more to the story of Solomon’s judgement than this. Faced with the equal balance of the two rival claims, Solomon intends, or at least pretends to intend, to take a sword and split the child in two. The false claimant is ready to accept this. But the true mother calls for an end to the legal battle and its dire outcome, saying that she is ready for the sake of her child to allow it to go to the other claimant. Solomon gives the child to her for, by her willingness to sacrifice her own interest, she has unintentionally demonstrated the truth of her claim.

In many ways, equal joint custody resembles the solution proposed by King Solomon—the child must live a split life between two homes, with little time or opportunity to create a place for itself in either, and much of its potential time with peers taken up by outings with a displaced parent. In these circumstances, it may be that some parents will express their love for the child by relinquishing maximum rights, asking only reasonable and modest access, in order to give the child a life of its own.

Cases involving extreme violence represent, of course, the outer limits of the way in which custody can serve the needs or preferences of parents and ignore the vulnerability of children. But, even where violence is not a factor, contact and residence rulings can be a way, deliberate or not, for one parent to exercise control over the other, making it impossible for the other parent to gather up the threads and start again, free from harassment and disruption. There are no easy answers to post-separation arrangements looked at from the point of view of the children themselves. It would be better if parents could recognize this and acknowledge that their own decision to split up means that, as far as their children are concerned, their security, home life and frame of reference for living their lives has been unpicked. If it is difficult to secure fairness for both parents, it is even more difficult.

Reconstituted Families

In practice, separations often bring into already complex situations new people, both adults and children, who have their own needs and perspectives. For, while the initial situation may be focused on the problem of how two individuals are to share their children’s lives between them, in practice one or both partners may bring someone else into the picture, posing a challenge of adjustment both for the adults and for their children. As far as the adults are concerned, it may be difficult to accept that their children are living with the person who has replaced them in their partner’s life. It will be difficult if the new mother or father is not caring properly for the children, but in some ways just as difficult if they are doing so successfully. A mother, particularly if she is not responsible for the breach, may find it very hard to accept that the woman who is responsible for it has taken over her role and formed a bond with her children. The same applies to fathers. A man, too, may find it hard to accept the reality of his children living with the man who has taken over his own role.

Custody and access are, of course, intended to protect parents’ relationships with their children and also to secure the best interests of those children. But these are difficult goals to reconcile. Even in the best of cases, children do not like to be asked to choose between their parents. Listening to the child’s voice is a worthwhile step, but no one should be deceived into thinking that that is a universal panacea. Like the apocryphal traveller whose request for advice evokes the response ‘I would not start from here’, in most cases the child does not want the split in the first place. What children most need and most want is what normal family life provides: a chance to build their own lives and relationships with their peers, with their parents in the background for support and comfort, and preferably not as judicially ordered companions for parent and child outings.

What children want, sadly they will not always get, and sometimes society itself will pay the price. But it is worth adults at least being clear about what they are doing and not deluding themselves with anodyne suggestions that their children will be happier, or at least benefit, when their aspirations for simple childhood constants are shattered and exchanged for a new life that includes mobility, fluctuating relationships, new ‘siblings’ to negotiate with, and new parental whims to accommodate. The old mantra ‘I am only staying with you for the sake of the children’ may often have been the simple truth in the past and in many cases could have been the better choice. From the child’s point of view, it may still be so. For, on the whole, children like families—the family is a child-friendly institution and only secondarily there to keep adults happy.

Child Abuse

If your spouse is abusing your child, you should seek custody of your child. Proving child abuse is difficult as the child may be scared to speak out against the abusive parent. You will require the services of an expert witness.

Although no uniform theory is available to provide consistent answers to disputed issues between conflicting parties, there should be a common goal for all professionals acting as expert witnesses. That is, all theories and expert witnesses should work toward the best interest of the child. However, different professionals may disagree as to what is in a child’s best interest. Under this premise, lawyers need to know the fundamental similarities and differences of all theories and models of child abuse and neglect such that expert witnesses can be called upon who will select the most accurate and impartial view of the child’s best interest. In short, the knowledge provided by the expert witness should serve the functions of verification, confirmation, conversion, and education in order to increase maximal judicial validity of evidence presented in court.

Responsibilities Of The Lawyer In Using Expert Witnesses

In legal proceedings dealing with victimization, the court may require concrete and comprehensive information from experts in order to establish the evidence of responsibility, causality, liability, and damages. Therefore, the lawyer involved will need to have accurate knowledge of the (1) perpetrator (e.g., intention), (2) victim (e.g. impact), (3) victimization processes (e.g., form of maltreatment), and (4) social and legal dispositions (e.g., removal of the victimized child from the abusive environment).

Resolution for these issues relies heavily on subjective explanations and interpretations of circumstantial evidence and facts. Because of the subjective nature in explanations or inferences, the experts used by the legal profession will thus generate possibly controversial and incompatible opinions about various objective phenomena of child abuse and neglect. Therefore, in dealing with the diverse theoretical backgrounds of the experts, lawyers need to have a clear understanding of evaluation criteria for assessment of expert testimony. That is, each expert should and can be characterized in terms of his/her theorization of child abuse and neglect. Since clinical and psychological testimonies are frequently based on some theories that may have no empirically verified foundations, lawyers handling of child abuse and neglect cases, with or without the assistance of other professions, should always evaluate the admissibility of expert testimony in reference to multidisciplinary theories and knowledge. Therefore, the judicial validity of future expert testimony will rely heavily on the competency and willingness of lawyers in testing its admissibility in the areas of necessity, reliability, validity, understandability, and importance.

Above all, it relies on the ability of lawyers to identify different origins of various theoretical foundations used and to differentiate their feasibilities for application to the legal issues involved.

Child Support

In regard to the state maintaining a primary interest in the dependency component of the parent-child relationship, the cases and legislation are very clear. The economics of the tie are for state determination. Husband and wife cannot negotiate child custody and support free from judicial scrutiny and approval. The state retains an interest in these arrangements and the right to assess and alter any settlement the spouses may reach upon divorce even to modify existing arrangements in the best interests of the child.

Economic or dependency issues concerning the ongoing needs of children that are addressed in the divorce context can be compared with the nonmarital situation. Historically, marriage defined the status of children in relation to their parents and the claims they could make upon or through them. The presence or absence of marriage determined which children were labeled “legitimate” or “illegitimate” and, thus, either granted or denied benefits accrued by their parents under state insurance and compensation schemes.

The U.S. Supreme Court has reduced the significance of marriage in regard to the parent-child connection. It did so first in regard to mothers when, in Levy v. Louisiana, it held that denying damages to “illegitimate” children as a result of the wrongful death of their mother is a violation of the equal protection clause of the Fourteenth Amendment. But fathers’ connection to children has also evolved so as to not require its mediation through the institution of marriage. Unmarried fathers now have rights and responsibilities for their children that were not part of the common law scheme of things. Nonmarital children are entitled to benefits historically reserved for their marital counterparts, such as parental support, workers compensation benefits, and the right to recovery in the event of a parent’s wrongful death. Such improvements recognize the reality of dependency is more important than the status of the parents’ relationship.

Draper Utah Divorce Lawyer Free Consultation

When you need legal help with a divorce case in Draper Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with temporary orders. Modifications of Divorce Decrees. Child Support. Child Custody. Property Disputes. Retirements Issues. QDROS. Mediation. And Much More. We want to help you.

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aretia · 4 years

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No Fault Divorce In Draper Utah

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Divorce Lawyer Draper Utah

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No Fault Divorce In Draper Utah

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Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Divorce Lawyer Draper Utah

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No Fault Divorce In Draper Utah

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Divorce Lawyer Draper Utah

No Fault Divorce In Draper Utah

Prenuptial Agreements

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Problems with the Best Interests Of The Child Guideline

Reconstituted Families

Child Abuse

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Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

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Divorce Lawyer Draper Utah

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No Fault Divorce In Draper Utah

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Problems with the Best Interests Of The Child Guideline

This legislative intent may be significantly undermined, however, by the ambiguity concerning how the child’s “best interests” are to be determined. Judges are provided few explicit decision-rules to determine what a child’s best interests are, much less rules that take into account a child’s changing developmental needs. Even when statutes provide broad guidelines defining the child’s best interests, these guidelines are seldom very explicit and judges are offered no guidance concerning which of these interests are most important in determining custody. This leaves judges broad discretion in defining these interests, with the result that custody awards can be determined on the basis of highly subjective criteria that may vary widely on a case-by-case basis. Alternatively, many judges simply adhere to a maternal presumption despite the changed mandate. In short, one of the greatest problems with the best interests guideline is the current lack of certainty concerning how this expression should be interpreted. A fundamental question, for example, concerns which of the child’s many “interests” should predominate in a judge’s deliberations over a custody award. Fundamentally, of course, children require the basic necessities that promote physical well being: adequate nourishment, a warm, safe home environment, sufficient health care, clothing, and an interpersonal environment that is not overtly abusive or oppressive. Beyond these basic necessities, however, there is considerable controversy concerning which of the child’s other needs merit primary consideration. Is it important that the child be with the parent who has provided the most care in the past (i.e., ensure continuity of care)? What of the child’s future educational or religious training? Should jurists be concerned with the child��s “character development”? Is continuity in living circumstances important? Should the child be with the same-sex parent? To put it simply, should the child’s best interests be strictly construed to mean only the basic requirements of adequate caregiving, or should the courts be more interested in the child’s optimal development?

Reconstituted Families

Child Abuse

Responsibilities Of The Lawyer In Using Expert Witnesses

Child Support

Draper Utah Divorce Lawyer Free Consultation

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Divorce Lawyer Draper Utah

youtube

No Fault Divorce In Draper Utah

Prenuptial Agreements

Child Custody And Child Support

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Problems with the Best Interests Of The Child Guideline

Reconstituted Families

Child Abuse

Responsibilities Of The Lawyer In Using Expert Witnesses

Child Support

Draper Utah Divorce Lawyer Free Consultation

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

Recent Posts

How To Legally Get Separated

Family Lawyer Magna Utah

Real Estate Liability

Provisional Patent Law

When To Sell Your Business

What Are Estate When You Die?

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Divorce Lawyer Draper Utah

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No Fault Divorce In Draper Utah

Prenuptial Agreements

Child Custody And Child Support

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Problems with the Best Interests Of The Child Guideline

Reconstituted Families

Child Abuse

Responsibilities Of The Lawyer In Using Expert Witnesses

Child Support

Draper Utah Divorce Lawyer Free Consultation

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

Recent Posts

How To Legally Get Separated

Family Lawyer Magna Utah

Real Estate Liability

Provisional Patent Law

When To Sell Your Business

What Are Estate When You Die?

Source: https://www.ascentlawfirm.com/divorce-lawyer-draper-utah/

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