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Family law’s massive sociological experiment(s)

Last night, while driving to the birthday party of my friends’ son, I was speaking on the phone to one of my oldest and dearest friends (the best man at my wedding).  He lives in Northern California, where he has custody of his two children from a first marriage.  He also has a license from the State of California to not only consume but to grow medicinal marijuana.

I had to hang up on him mid-conversation because I had arrived at the party.  At the party one of the guests was there with her two nieces.  She’d had custody of these nieces for the past few years, in part, because her sister was a habitual marijuana smoker.

Both California and South Carolina (and probably every state in the United States) are conducing giant experiments into the factors that should decide child custody.  California has decided that regular use of marijuana, if regulated by the state, should not be a factor in determining custody; South Carolina has decided that such use is per se evidence of parental unfitness.  Is California correct?  Is South Carolina?  Is the truth somewhere in the middle?

We could study how marijuana use effects parenting.  Tens if not hundreds of thousands of custody determinations a year are being made in which one or both parents consume marijuana. So long as a sizable portion of our population consumes marijuana and we allow our court system to determine child custody, there’s no reason to think these numbers will decrease.  It might be useful if we actually studied the issue rather than basing decisions regarding one of the most important intimate relationships people will have on unanalyzed value judgments.   Instead California continues to base its custody decisions on unexamined values (marijuana okay) while South Carolina, doing the same, reaches the opposite conclusion (marijuana evil).  And it’s not just marijuana use and parenting: the family courts conduct myriad sociological experiments regarding child custody without actually preserving or studying the results of these experiments.

Ironically, the conversation with my friend on the way to the party regarded how the family courts are conducting a giant sociological experiment on having the government act as continuing arbiter of custody and visitation issues during a substantial portion of a child’s minority, an issue I blogged on here.  My friend, a scientist, wasn’t convinced that such unstudied sociological experiments were taking place within our family courts.  His own experience shows that they are.

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