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Could the (barely acknowledged) enforcement of social norms in family court custody orders be having a hidden impact on our culture?

Though I have seen no statistics on the subject, I would estimate that between one-quarter and one-half of all children in America will spend some portion of their childhood under the authority of a family court custody order. I base this estimate on current estimates of the percentage of out-of-wedlock births (approximately 30%) and the percentage of marriages ending in divorce (estimated to be 40-50%). Even the family court custody determinations that resolve by agreement, which the vast majority do, are impacted by the legal culture. Parents and especially lawyers are highly attuned to the factors that judges use in deciding custody and this awareness factors into the decision making that leads to custody agreements.

The elephant in the room that no one acknowledges is that family court judges use their own view of social norms in deciding custody. How much impact this is having on our culture? There is a clear distaste for bohemian parenting in South Carolina law.  See e.g., Bramlett v. Davis, 289 S.C. 85, 344 S.E.2d 867 (Ct.App.1986);  Cook v. Cobb, 271 S.C. 136, 245 S.E.2d 612 (1978).  Cook actually referencs a parent’s “bohemian” lifestyle as a basis for awarding a grandparent custody. Cohabitation and marijuana use that might not even be an issue in a California custody case would be considered by most South Carolina family court judges to be an outright bar to an award of custody. Fostering a child’s creativity is less regarded (perhaps because it is less quantifiable) than is fostering a child’s academic achievement.

Let’s assume, for the sake of simplicity, that there are two types of parenting styles: bohemian and bourgeois. Bohemian parents stress flexibility and creativity; bourgeois parents stress goal achievement and respect for authority. Bourgeois parents send their children to SAT prep classes because doing well on the test is a stepping stone to acceptance to a good college (which is a stepping stone to yet another goal). Bohemian parents let their children play in the kitchen because learning to cook is a good life skill and develops understanding of nutrition, chemistry, math and economics. Bourgeois parents are wonderful at turning out a generation of lawyers, engineers and doctors (and white collar criminals); bohemian parents are raising our next generation of artists, chefs and inventors (and street criminals). If Bill Gates’ parents were bourgeois they still fret that he dropped out of Harvard and nag him about completing that degree; if his parents were bohemian, they applauded his dropping out to follow his passion. Bourgeois parents typically prefer a homogenous suburban environment because their children’s social network is more within their control and safety is a greater virtue in bourgeois land. Bohemian parents typically prefer a heterogenous urban environment because their children are exposed to a diverse range of cultures and creativity is a greater virtue in bohemian land.

Both mindsets contribute to American culture. A completely bourgeois nation would be orderly, productive and more law abiding. It might not be very fun or flexible. It might be ill prepared to respond to changing conditions or a sudden crisis. It might rip apart as our country becomes more ethnically and culturally diverse.  A completely bohemian nation would be creative, inventive and chaotic. It might lurch from crisis to crisis yet always muddle through due to its flexibility and creativity.

My concern is that the family court strongly favors the bourgeois mindset over the bohemian mindset. In doing so, we may be making ill-advised custody decisions and shifting our culture in ways we may later regret. First of all, we need to value both mindsets as both mindsets have something to contribute to human happiness and advancement of our culture. I further think that, all other things being equal, a child with bohemian traits is best raised by the more bohemian parent (assuming the bohemian child is not out of control) and that the child with bourgeois traits is best raised by the more bourgeois parent (assuming the bourgeois child is not too rigid).

Family court judges come from an environment that overvalues bourgeois strengths and undervalues bohemian strengths (law is, after all, a very analytical undertaking). Their custody determinations shape the culture and parents and attorneys understand that representing the more bourgeois parent is quite helpful in a custody case. Better the parent in a strained marriage than the (male or female) parent shacking-up with the loving boyfriend. Better the parent who drinks alcohol regularly than the parent who smokes marijuana occasionally. The end result, I suspect, is that we are letting a generation of bohemian children be raised by bourgeois parents and creating a bunch of alienated children in the process (bohemians, due to their lesser regard for the importance of authority, already tend toward alienation). A generation of children who developed a love of science by working their way through a chemistry set is slowly being replaced by a generation of children learning science in summer science camps. A generation of children who developed a love of sport through informal child-organized games is slowly being replaced by a generation of children involved in adult-organized leagues. American’s and South Carolina’s legal culture might consider this a good thing; I’m not so sure.

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