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From Fathers Property to Childrens Rights; the history of child custody in the United States (book review)

Mary Ann Mason, (1994)

Columbia University Press. ISBN 0-231 08046-8. Available UK @ 24.00 . hardback.

Mary Ann Mason is Associate Professor of Law and Social Welfare at the University of California, Berkeley. In this book she examines child custody disputes in four key areas; divorce, child protection, adoption and in the new reproductive technologies. She takes a broad historical view starting with the Puritan period and finishing with the contemporary scene. History and legal scholarship are skillfully combined in this fascinating review. She traces the development of child custody assumptions and decisions in the four key areas from a position where fathers rights were absolute to the development of a maternal preference through to no fault divorce and the nominally gender neutral best interests of the child standard. All of these developments are linked throughout to the role of the state and the development of American Feminism.

In terms of contemporary practice she is critical of the the ascendant position that social science has assumed in the the determination of custody disputes. She favours a legal, rights based approach and is critical of family mediation as a new social science paradigm, which works against the interests of women. She has argued this line elsewhere and recently had an article in the Guardian which essentially was a feminist critique of mediation in divorce (The Faulty Balance of Power - Guardian Society p 6-7, 7.6.95).

The book is an important contribution to an increasingly controversial and ill tempered contemporary child custody debate. It is well written, erudite and is very interesting and accessible. Mason's feminism leads her to the position where she supports a legalistic rights based approach as being in the best interests of women. In doing this many would feel that she does not take sufficient regard of the way that this approach has limited child custody options, upheld traditional gender stereotypes and worked against the interests of children. Mediation, although it has many faults and is heavily criticised by Mason, may now be the best way out of the child custody conundrum.

Mason's book deserves to be seen by the many who are involved in the current discussion on child custody . At 24 for the hardback copy I would imagine that few will be able to afford to read it outside of an academic or public reference library.

Arthur Baker

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