Law: Custody: Kramer vs. Reality

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In divorce cases, as in society, rules are changing

While moviegoers have been weeping this winter over the wrenching divorce drama Kramer vs. Kramer, lawyers have been shaking their heads. Their plaint is not that the couple's attorneys in the film are the least appealing characters since the Wicked Witch of the West, but that the courtroom scenes are legally out of date. Meryl Streep, playing a restless housewife trying to find fulfillment, has walked out on her marriage to Dustin Hoffman, a hustling young Manhattan adman, leaving him with their young son; 18 months later she wins custody of the child despite the husband's devotion to the boy during her long absence. In the real world, psychiatrists or psychologists would have testified, the judge would have at least interviewed the child and probably would have allowed the father to retain the custody he had had since the split-up.

More and more, single dads are rearing their children. While women still get custody in the overwhelming majority of divorces, between 1970 and 1978 the number of children under 18 living with divorced fathers jumped by 136%; close to 500,000 divorced U.S. fathers are now rearing sons and daughters without the help of a wife. At the same time, many other ex-spouses are trying another fast-spreading arrangement: joint custody, in which fathers and mothers share the responsibilities for the rearing of their kids.

In Roman tunes and after, the man was king: offspring were considered his property even if the marriage ended. That principle died in the 19th century as courts took on a guardian role and began to favor the mother, especially if the child was in his first five to seven years. The rule that generally prevails in the U.S. today—that custody must be based on the "best interests of the child"—was articulated in a landmark decision in 1925 by Benjamin Cardozo, then a New York State Court of Appeals judge. Though the rule is sex-blind in principle, men seldom win custody in the 10% of the cases that go to court. "The courts are prejudiced against fathers," insists Leonard Kerpelman, a Baltimore lawyer who champions fathers' rights. "Unless the mother is a prostitute, a drug addict or a mental defective, she is automatically assumed to be the better qualified to have custody."

While many judges cling to this "unfitness" test, things are changing. The emergence of job-holding mothers (59% of women 18 to 64 now work) has eliminated a leading legal basis for favoring the exwife. Fathers, encouraged by the new emphasis on equal rights, are increasingly inclined to put up a fight. Though his divorce occurred in 1970, Dancer Edward Villella has sued to retrieve custody of his son Roddy, now 10. (Quipped his exwife, former Dancer Janet Greschler Villella: "He probably saw Kramer vs. Kramer.")