You be the judge.
I’ve written those words a good many times over the years. I’d spell out a situation and say “you be the judge” sometimes to give people a sense of what it’s like to judge a case before you. Sometimes, though I’d use those words to show just how dramatically a judge got it wrong.
Well it turns out that Sanford Braver at Arizona State University did the same thing, at least figuratively. This article tells us that Braver led a team of researchers who inquired into the public’s acceptance or lack thereof of the concept of equally shared parenting (Psych Central, 5/3/11).
They did a study the article describes this way:
Survey participants in the first study were asked to imagine they were a judge deciding a series of hypothetical cases. In one case vignette, the mother provided 75 percent of the couple”s pre-divorce child care-giving duties. In another vignette, the father provided 75 percent of the couple”s pre-divorce child care-giving duties. And, in the third vignette, the parental couple was described as having divided the pre-divorce child care 50-50.
So Braver, et al asked participants to in effect “be the judge.” And lo and behold
The researchers also found that for survey participants, in most of the custody cases they were asked to decide, they judged that equal custody was strongly preferred, a preference that current law does not generally allow unless the two parties agree…
“The striking degree to which the public favors equal custody combined with their view that the current court system under-awards parenting time to fathers could account for past findings that the system is seriously slanted toward mothers, and suggests that family law may have a public relations problem,’ said lead author Sanford L. Braver.
The study will be published in the May edition of the journal Psychology, Public Policy and Law.
So it’s interesting that when everyday citizens are asked to “be the judge” in custody cases, they demonstrate what the article calls a “strong preference” for 50/50 parenting. We’ll obviously want to get a look at the study itself when it comes out, but in the past, Braver has been one of the most scrupulous and well-reasoned of the researchers into divorce and custody issues. So I’d be surprised to find any flaws in his methodology.
The larger issue of course is the dramatic difference between public preferences and elite decision-making. I’ve complained a good bit recently about the gaping chasm that separates the well-established social science on things like what benefits children, domestic violence, child abuse, child custody and the like, from judicial decision-making on those issues. An impartial observer could be excused for concluding that the judges just don’t know the science, or if they do, don’t care about it.
Well, it looks like something similar is going on here. Like the gulf between science and family law, there’s also one between public desires and court decisions. I need hardly add that public desires seem to agree with the social science on what benefits children. About that, only the courts are out of line.
Into the bargain, the public seems to have accepted what “gender equality” actually means – that in custody decisions, mothers and fathers be treated equally. That of course stands in stark contrast to feminist organizations which, with a single minor exception, invariably oppose even the slightest expansion of fathers rights in custody matters. The same can be said of family court judges and the family law bar.
In short, what happens daily in family courts across the country contradicts both sound social science and the wishes of the people. It’s a classic case of elites deciding what’s best for the unwashed masses regardless of what we want and regardless of what’s morally and scientifically right.
Or, as Professor Braver said more tactfully,
“Decision-makers need to recognize the widespread opposition to the current standards that award equal custody only rarely. If they think those standards are nonetheless necessary, they need to be more active in defending and justifying their preferences to the public,’ Braver said.
I’d only add that the reason they don’t do a better job of “justifying their preferences to the public” is that they have nothing with which to do so. If there were sound social science to support the award of almost 90% of primary custody to a single sex, don’t you think we’d have seen it by now?
The social science isn’t there. That’s why we never hear a “justification” for that which is patently unjust.
Of course Braver was speaking rhetorically. He of all people knows the social science on child well-being, the value of fathers to children and so forth. His point was precisely that those who daily deprive fathers of children and children of fathers have no support for what they do.
It’s not the first time that “the people” showed themselves to be ahead of elites. Elites always have turf to defend; if they didn’t, they wouldn’t be elites. And when you’re defending your source of funding or your previously articulated wrong ideas, you’re likely to engage in a bit of intellectual dishonesty, or worse.
“The people” on the other hand are not so compromised, so they often get it right where elites get it wrong. They have no “prior commitments.”
And so it is in Braver’s study of decision-making in custody cases.
What should be true in custody cases and what is true are like tectonic plates moving in different directions and creating vast pressures as they collide. I predict an earthquake.