Family Law and Emotional Rights 213Fortunately, family law's shortcomings in addressing the emotional well-being
of children have not been ignored. The National Task Force for Children's
Constitutional Rights has begun to write a children's amendment to the constitu-
tion which would afford children certain rights (Wynne, 1997). The amendment
would grant children many rights which include the right to a safe home and "the
right to the care of a loving family or a substitute which approximates such a family
as closely as possible" (Wynne, 1997, p. 187). This amendment would effect every
state, which could potentially help protect children's emotional rights by forcing
every state to consider the child as a person, rather than the property of his or her
biological parents, as Wynne suggests. However, the amendment will do little for
cases such as Baby Jessica's when both families appear to be loving. Although the
changes in family law are underway for third-party custody disputes, laws already
exist for custody disputes between biological parents. These laws and the degree to
which they consider the emotional well-being of children are discussed next.
Some specifications have been outlined for custody decisions in divorce cases.
The Uniform Marriage and Divorce Act of 1970 provides a list of factors judges
should consider in child custody cases (Crosby-Currie, 1996). Because laws in
every state differ, the factors vary from state to state. One factor that is considered
in custody decisions in every state is the child's wishes. Despite the indication that
utilizing the child's wishes in a custody determination was designed to protect the
child's emotional best interests, research indicates asking a child about his or her
wishes regarding a custody dispute has a negative impact on the child's well-being
(Currie-Crosby, 1996). In fact research indicates custody disputes, regardless of
whether the child is asked about his or her wishes, are detrimental to children
(M. Bussey, 1996). Bussey used a systems perspective to examine the detrimental
effects of divorce on children. Some of the systemwide interventions for children
of divorce have included legal reform. Because of the abundance of psychological
literature that indicates divorce has long-term detrimental effects on most children
(M. Bussey, 1996; Crockenberg & Forgays, 1996; Lee, 1997; Short, 1998), some
states have begun to change the legal process for divorce (M. Bussey, 1996). For
example, parent-targeted interventions are often mandatory instead of voluntary,
and some states such as California have court-mandated mediation for all disputed
cases. Family law has begun to work with psychologists in an effort to reduce the
negative impact divorce has on children's emotional well-being. In 1992, a program
to help children cope with divorce was established, and referrals were primarily from
a family court judge, who posed the question of whether such programs should be
mandated on a statewide or nationwide basis (M. Bussey, 1996).
Although research indicates that law and psychology have begun to intersect
when it comes to custody disputes between biological parents, there have been
criticisms regarding the adequacy of the law for such disputes. As discussed previ-
ously, states use the Best Interest of the Child standard when determining custody
cases between biological parents. Kurtz (1997) argues that the Best Interest standard