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The need for this 'redefinition' would be considerably reduced if a legal principle with a high level of predicability of outcome could be found. Under the new rule: 'The primary caretaker test assumes that bonds exist between the primary caretaker and the child; they are evidenced by the caretaker's sacrifice and devotion.
The test also assumes that the child reciprocates this devotion.' In this way, Fineman is able to dispense with any expert evidence which might go to issues of quality of care and, it would seem, any reporting from expert witnesses on how the child(ren) might perceive the situation.
Fineman's proposal for a primary caretaker rule comes after a lengthy analysis of how the helping professions have been effective in altering public perceptions with respect to both the procedural and substantive issues in family law.
Like Goldstein et al, Fineman's wish for a return to a single criterion on which post-separation parenting decisions might be based, arises, at least in part, out of a concern for the vagueness of the 'best interests of the child' principle.
This principle has dominated thinking in family law for many years.
Fineman notes that historically, it 'created problems for the legal system ...
because it [the best interests test] was indeterminate'.
She argues that it is these deficiencies which have given the helping professions a foothold via the successful promotion of alternative decision making procedures.
Having established that foothold, she believes that the helping professions have 'redefined' separation and divorce as an emotional and psychological crisis which needs psychological rather than legal intervention.
In the United States, there is a battle for the hearts and minds of the separated and divorced and for the policy makers who make recommendations about principles that guide decisions about post-separation parenting.
In its simplest form, this battle is over whether the breakdown of a marriage is best understood and dealt with as a legal event with legal consequences, or whether it is more useful to see marriage breakdown from an emotional and social point of view as the ending or restructuring of human relationships.
Though perhaps a little more benign in its execution, this is an orientation which once again objectifies and depersonalises the child.