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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.

  • Greg:
    This is an interesting discussion for both attorneys and psychologists. You should submit this blog to the American Psychological Association (APA), the ABA Family Law Section and the American Academy of Matrimonial Lawyrrs (AAML) for further debate. Diana Gould-Satzman and her husband Richard, both attorneys in Los Angeles, would probably be very interested in this topic. for They are very involved in all three organizations and could put you in touch with the right people if you are interested in getting more people involved in this debate.

  • the California pothead

    Actually, I agree that we’re conducting a vast but uncontrolled experiment in government-supervised parenting….but we’re also conducting unsupervised experiments in financial policy, antibiotic use, copyright protection, and (obviously) drug policy; that’s how government works. Furthermore, I’m afraid that any so-called ‘scientific’ conclusions regarding custody could leak from the obvious sort regarding parents’ drug use or untruthfulness into other statistical-but-impersonal measures like race, gender, or IQ. As a scientist, I’m the first to fear that government might find statistical indicators of “bad parenting” which nonetheless are protected by civil rights. If “science” says fathers suck at parenting, would that get enshrined in law?

  • Kris

    Such an interesting topic and thoughts. Would love to see it revisited in light of the continued slow legal acceptance of marijuana use.

    As a parent in a state where marijuana is still illegal, I find myself wondering how to continue to explain it to my children. Is marijuana evil because we live in a “marijuana evil” state? Are the courts wrong?

    It’d be so much easier to simply teach them the dangers, as one would about cigarettes, alcohol and medicines in general — without the not-black, not-white, but very gray clouds surrounding it.

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