In Marriage Story, tensions over Henry’s custody are of course the most salient and emotionally taxing parts of the story. While the lawyers try to position their clients as the most appropriate person for their child to live with, the clients themselves are at best ambivalent about the posturing, knowing and respecting one another’s parenting skills as they do, but simultaneously feeling compelled to abide by their lawyer’s advice and by the legal machinations of a system that has taken on a life of its own. This story thread is brought visually home in a scene where Henry is actually physically tugged back-and-forth between his parents. In another equally disturbing scene, while being meticulously prepped for the interview she’ll be having with the court investigator, Nicole’s lawyer advises her almost matter of factly, “dads are accepted for their fallibility, moms are held to a higher standard, sort of like Jesus, God and Mary- Mary was a virgin who gave birth to Jesus while god is the father, and god didn’t even show up….it’s fucked up but it’s the way it is”. It’s the underbelly of psychological warfare, the fuel for animosity that oftentimes could just as easily be managed, kept at bay and even nurtured into a healthy co-parenting arrangement. Is that good lawyering? Is that wise counsel? Does that kind of advice account for the impact it will have on real and lasting relationships between parents and children? Relationships that will continue long after the divorce is over.
The tug-of-war scene reminded me of when a number of years ago I was the GAL on a case in which Sean, a young boy about 12 years old, was subjected daily to the enmity between his parents and their venomous custody dispute. When Sean and I began to talk about his living arrangements he said to me “you know how when people go out to dinner and at the end of the meal the waitress brings the check and everyone starts fighting about who should pay for it but no one really wants to?” That’s how I feel.
Sean’s powerful image stayed with me and helped me create language around co-parenting that I hope is more in line with positive, child-centered outcomes: for instance, I encourage parents when talking to their children to refer to “their home with mom and their home with dad” instead of “mom’s house” and “dad’s house”, language which seems to me (albeit inadvertently) to give children a message that neither house is truly their home. The word “co-parenting” also states an eventual goal (if not an immediate actuality), and is certainly better terminology than “custody” and “visitation” which references children as chattel and harkens back to family law’s evolution from contractual property rights. In Massachusetts there has been recent legislative attempts to amend divorce statutory language from “physical custody” to “residential responsibility”, and “legal custody” to “decision-making responsibility”, again language that’s less oriented toward property rights and more descriptive of parents’ actual intentions.
It often takes time for laws to catch up with social changes and norms, and even longer for individuals to adapt to family constructs they never envisioned or desired at the time they married. However, it seems to me that children in restructured families will continue to feel better supported as social acceptance grows for a variety of family constellations, and laws support and undergird that diversity.