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Jonathan Hafetz

Hi, I'm Jonathan Hafetz and Welcome to Law Film, a podcast that explores the rich connections between lawn film lore is critical to many films. Films, in turn, tell us a lot about the law. In each episode, we'll examine a film that's noteworthy from a legal perspective. What legal issues does the film explore? What does it get right about the law and what does it get wrong?

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Jonathan Hafetz

How is law important to understanding the film? And what does the film teach us about the law, and about the larger social and cultural context in which the law is embedded? Our films today are Kramer versus Kramer and Marriage Story. Kramer versus Kramer is a 1979 film directed, written and directed by Robert Benton, starring Dustin Hoffman and Meryl Streep, with Jane Alexander in a supporting role and Marriage Story is a 2019 film written and directed by Noah Baumbach, starring Adam Driver, Scarlett Johansson and then in the supporting roles, three terrific actors, all playing lawyers.

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Jonathan Hafetz

Alan Alda, Ray Liotta and Laura Dern. The films both depict the disintegration breakup of a marriage. They're gripping dramas on an interpersonal level. They're also dramas about the legal system and the legal process. So law plays a very big role in both films. And they are also, I think it's fair to say, reflections of their respective eras. Our guest today to talk about these two films is Angel Maldonado.

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Jonathan Hafetz

Angel is the Eleanor Montague Professor of Law and associate dean for faculty research and development at Seton Hall Law School. Her research and teaching interests include family law, feminist legal theory, race in the law, and international and comparative family law. Over the last decade, her scholarship has focused on the intersection of race and family law and the law's influence on social norms of post separation.

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Jonathan Hafetz

Parenthood. Angels, currently working on a book that examines how the law shapes romantic preferences and how these preferences perpetuate racial hierarchy and economic and social inequality. And she was a leading expert in this area. She's one of the reporters on the prestigious American Law Institute's Restatement of the law Children, the law, which is in progress. And she's the coeditor of two textbooks on family law.

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Jonathan Hafetz

She also serves on the editorial board of the American Bar Association's Family Law Quarterly. Before joining Seton Hall, Angell was a litigation associate practicing law in New York, and she also was a clerk for then District Judge Joseph Greenaway, who now sits on the US Court of Appeals for the Third Circuit. She received her B.A. from Columbia College and her J.D. from Columbia Law School, where she was a Harlem Fiske Stone scholar and a managing editor of the Columbia Journal of Gender in the law.

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Jonathan Hafetz

Angel, I should add, is also my colleague at Seton Hall, which is a wonderful colleague. So it's an honor and a privilege and a pleasure to have her on law and film today. Welcome, Angel.

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Solangel Maldonado

Thank you so much, Jonathan. It's a pleasure to be here. I'm very excited.

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Jonathan Hafetz

So the two films, Kramer versus Kramer and Marriage Story, are films and made 40 years apart 1979 from Kramer versus Kramer in 2019 for Marriage Story. So a lot's happened in between. Legally speaking, can you set the scene a little bit?

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Solangel Maldonado

So much has happened legally. I mean, the first thing is that in 1979, joint custody, joint physical custody was really wasn't an option in the vast majority of jurisdictions. So that, you know, that is very significant. And so when I went back and watch Kramer versus Kramer a couple of weeks ago, I kept thinking, well, wouldn't a solution have been to simply avoid the parents joint custody?

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Solangel Maldonado

They both love their child very much. The child had a good relationship with both parents and but that just wasn't an option back then. So that is something that has changed. We also now recognize that fathers are incredibly important. And initially in Kramer, the father was almost portrayed as a buffoon, right? He can't even, you know, make his child French toast in the morning.

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Solangel Maldonado

He doesn't know anything. And obviously that is very different today, right? We expect that fathers will be co-parenting, as much as mothers, even though something that hasn't changed is that in most in most cases, mothers still have primary physical custody. So a lot has changed. But then in some areas, not that much has actually changed.

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Jonathan Hafetz

Yeah. That's fascinating. And the whole joint custody, the idea of a lack of joint custody, meaning it's kind of all or nothing when two people are fighting for custody. That shapes Kramer versus Kramer. And also, to some extent, a marriage story. Even though joint custody is sort of on the table, and that that was something that both parties would agree to, would agree to.

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Jonathan Hafetz

You have it affecting the plot because Scarlett Johansson wants to move to California and Robert wants to New York. So in a sense, they both are. Both films are kind of made around the absence and the presence of joint custody. There's still this conflict.

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Solangel Maldonado

Yes. I mean, I think that's right, but a marriage story, it would just had had she not, had they not had another 3000 miles apart, that new York and California, then that would have been the perfect case for joint custody. And it seems that both parents were very involved with the child in the parenting. They were co-parenting the child during the marriage.

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Solangel Maldonado

So that so it's almost like that would have been an easy case. And I wonder whether the director had to add the distance in order to, to add this conflict, because otherwise this would be, you know, the case where the parents and the lawyers would all agree that joint physical custody would be workable. Let's all just stay in Brooklyn.

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Jonathan Hafetz

Yes. You have no. Yeah. You have no film, right? I think it would be resolved by joint custody. It sounds like they could have worked everything out. They weren't really fighting over the money until later. Because they were. It became a tool in the custody fight. They sort of needed this move. And this 3000 miles of separation. And of course, the other, other difference, which I can't help but remark on is, Kramer versus Kramer set Manhattan.

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Jonathan Hafetz

He's an advertising executive. Updated the marriage story 40 years later, set in Brooklyn. But anyway. So. Yeah. So going to Kramer versus Kramer first. Joanna, played by Meryl Streep, abandons her child for about 15 months. And in the meantime, as you said, Dustin Hoffman, who plays Ted Kramer, proves himself to be an excellent and committed father after starting out as really a terrible father, workaholic and care about seem to care about the kid much.

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Jonathan Hafetz

And he has this very strong bond with his son. So Meryl Streep returns and tries to gain or regain custody of her son. And Dustin Hoffman, despite what's happened in the last 15 months, faces significant obstacles. So I want to play a clip of Dustin Hoffman's discussion with his lawyer when he's learning about the case, and see if you can assess whether the advice is accurate that Dustin Hoffman gets from the lawyer.

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Movie Dialogue

I don't know the legal jargon for it, but I would think it's desertion. I mean, I don't mean to tell you your job is to Shaughnessy, but I just think I have an open and shut case. Well, first, Mr. Kramer, there's no such thing as an open and shut case where custody is involved. Well, I'm willing to bet your ex-wife has already found a lawyer.

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Movie Dialogue

And here's the closet. And we're back in New York to establish residency. Oh, the burden is on us to prove that your ex-wife and mother. And that means that I don't have to play rough. And if I play rough, you can bet they will do. And you want to take that risk? Yes. And it's going to cost you $15,000 and simply will go to appeal.

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Movie Dialogue

Would cost you more. I understand. Now, how old is the child again? My son is seven. One. Well, in most cases, involving a child that young right hand side of the mother, but she sign over custody. I'm not saying we don't have a shot, but it won't be easy. Mr. Kramer, tell me family are something I find very useful in matters like this.

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Movie Dialogue

I sit down and I write out all the pros and cons on an issue. I actually write them down and look at. I want you to do that. Okay? After that, if you're really certain you want to retain custody of your child and will, go in there and beat the off. Okay.

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Jonathan Hafetz

So, Angel, what do you make of the advice that Dustin Hoffman gets from his lawyer?

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Solangel Maldonado

So I think it was actually accurate advice. It may be. I mean, to those of us listening to the now, you know, 2023, we are disappointed, by a couple of things. Right? So the first thing is that the lawyer himself isn't sure that Ted wants custody. I mean, the fact that he's asking him make a list, sort of the pros and cons, and then let me know if you still want custody.

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Solangel Maldonado

Would we ask a mother that? Will we ever ask a mother to make a list and then let me know if you still want custody? But at the time, and actually not that long ago. I mean, I've been teaching 20 years and I have cases from the 1990s where judges in New York family court judges in New York would say to a father who was seeking custody, why do you want custody?

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Solangel Maldonado

Are you sure you want custody? And so it wasn't that long ago where we still weren't sure that why a father would want custody. But his lawyers advise that when it's a young child, a child of what's known as a child of tender years, that judges tend to side with the mother. Yes, that was definitely true then. And it was true not that long ago.

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Solangel Maldonado

And fathers actually litigated cases throughout the country, challenging the ten year presumption as violating the equal Protection Clause, as, you know, sex discrimination. And so it was just understood that young children should be with their mothers because children needed their mothers. That was just sort of what was expected. And a lot less weight was given to the father.

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Jonathan Hafetz

And it's so interesting how you say that pervades that. The advice of the ten year presumption and that presumption is internalized by the lawyer. It's like, why do you want to go through the trouble, the expense. I mean, it turns out that Ted Kramer, like, loses his job and gets a demotion because he has to spend so much time really being a sole parent.

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Jonathan Hafetz

So it really pervades everything.

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Solangel Maldonado

Yeah. I mean, I thought when I was watching the film, I thought of that how, you know, like we talk so much about the motherhood penalty or the family penalty, and it really is the person who is a primary caregiver. If you're trying to be a parent, though, careers are just not conducive to parenting. Or we know that if you're trying to take care of a child that has that can have a certain impact on your career.

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Solangel Maldonado

It did in the 1970s, and women have been talking about this and writing about it for a very long time. But here we see that a father is actually affected, as well. But we know that today fathers and mothers parent may suffer adverse consequences in the workplace because they are parenting.

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Jonathan Hafetz

Yeah. That's interesting, Fabrice Kramer, it's not even subtle. I mean, it's like it's just very clear that that's not your priority. I guess maybe today in many employment context matters, but employers would hide it a little bit more.

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Solangel Maldonado

Yeah, they would definitely hide it a little bit more. But back then it was why would a father be taking care of a child?

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Jonathan Hafetz

And so fast forward to the end of the case where, you have the courtroom battle and of course, a spoiler alert. Meryl Streep gains full custody and Dustin Hoffman gets only visitation and has to pay maintenance and support. There was no, as you mentioned before, no joint custody options. It's all or nothing. And now Streep gets everything insofar as the court battle is concerned.

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Jonathan Hafetz

Was this result accurate for the time?

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Solangel Maldonado

I think it was definitely accurate at the time. And keep in mind, the film was sort of coming at a time when divorce rates had been increasing. It was also a feminist movement, right. And so the fact that, you know, that Meryl Street, that, you know, Joanna leaves because she needs to find something, some sort of fulfillment right after going to college.

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Solangel Maldonado

But then once you know, she got married, the expectation is that she would stay home and not have her own career. But I do believe that this this was accurate. As Ted's lawyer says, we need to show that she is unfit. We need to prove that she is unfit. And so the focus is although custody cases are supposed to be decided based on the best interest of the child.

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Solangel Maldonado

The ten year presumption was a proxy for the best interest. It was assumed that, of course, it is in the child's best interest to be with the mother unless she is unfit and she had walked away, but she had never abused the child, and and now she was willing to take on full responsibility. And so the result isn't so surprising.

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Jonathan Hafetz

Well, what else would they have done here? To assess the best interest, if at all? Was it odd that they didn't? No one interviewed or asked the child what he wanted.

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Solangel Maldonado

Now we we are we do a lot more, having custody evaluators. And just keep in mind that there are a lot of us are very skeptical about the value of custody evaluators, because you're having someone who does not know the family to now try to interview the child, interview the parents, and try to make a recommendation to the court as to which custody arrangement might be, might be best.

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Solangel Maldonado

And you can see how there might be a lot of issues, with that. But now it's much more common. Of course, for each of the parties to have someone who will testify on their behalf so they'll have their own experts. And then you also have someone that's appointed by the court who will testify, you know, who will interview the family and then, you know, sort of make a recommendation.

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Solangel Maldonado

The court can also interview the child and assess what the child's wishes might be. But because judges don't have that much experience interviewing children, a lot of times it would be the guardian ad litem for, for example, who would meet with the child and basically assess what the child wants. And we would take into account the child's wishes.

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Solangel Maldonado

But that really is for older children. I mean, here the child who was 7 or 8, so he was a young child. And so the courts are they can give some weight, but it's really up to the court to decide how much weight to give to the child. Wishes, because children, what they want may not always be what's best for them.

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Jonathan Hafetz

So even at even today, at age seven, if the guardian ad litem was appointed for Billy the child in Kramer and clearly wanted to be with his father, that still might not necessarily have character.

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Solangel Maldonado

It is not dispositive. No, it is not dispositive. It is. It would be one consideration, one factor of many. But the court doesn't have to give it much weight at all. Now, if a child is older in some jurisdictions, by statute, if you have a child who is 12 or the other, state that the child is 14, then you absolutely have to give that child, which is significant weight.

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Solangel Maldonado

And that is because older children, you know, they basically talk with their feet, right? If you put a 14 year old in a home where they don't want to be, they're going to they're going to walk away, they're going to make it. They're going to make it very clear that they're not going to stay.

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Jonathan Hafetz

Right. And then, and then after they turn 18 and everything, the family court or then custody, it's it's no longer in the court. So, yeah, it's interesting that, you mentioned before the joint custody not being an option because that would have likely been the outcome here. Some form of joint custody. And instead you get this kind of heartbreaking ending where well, initially Dustin Hoffman loses in the court, gets heartbroken.

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Jonathan Hafetz

And then you have the final scene at the end where Meryl Streep shows up and says, here you have him. I don't want to have custody. So it's it's something about this all or nothing. And without this joint custody, it seems like everyone kind of loses out.

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Solangel Maldonado

Yeah, I agree, and but but I want us to keep in mind that although joint custody was not an illegal option in most jurisdictions, I mean, this really joint custody started really in the 1970s, you know, with fathers rights, you know, fathers rights activists, but parents could always enter into their own sort of informal arrangement. So, you know, given that that Joanna was living in New York and Ted was living in New York, they could have easily had an arrangement where Billy is spending two nights a week or three nights a week with Joanna, and the other days with, with Ted.

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Solangel Maldonado

And parents always have that ability to do that. And so I have friends, I have colleagues whose parents got divorced in the 1970s and their parents had joint custody. And when I've asked them, how is that possible? The state didn't recognize it. And they said, our parents just work something out between themselves. And so whatever, regardless of what the court ordered, they still they, you know, they got homes near each other.

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Solangel Maldonado

We drove out, we rode our bikes to the other parents home. And so parents always have the ability to do what they believe is best for their children. And so I think that's a good way of pointing out that the law does not dictate what parents have to do if they can agree.

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Jonathan Hafetz

Yeah. So here. Right. We see the outcome at the end. But who knows in in real life does have a set of morals. People. You know you can come a couple of days a week and they reached their own contractual agreement. Arrangement.

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Solangel Maldonado

Exactly. Remember, the court is there when you need the court, when you can't resolve issues, on your own. Now you're asking a third party, a judge who doesn't know your family to make that decision for you. I never think that that's the best outcome. And although not, I mean, one thing that neither film. Well, actually, a marriage story does bring in mediation very, very briefly, but then they end up sort of getting the big lawyers.

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Solangel Maldonado

But initially what they had planned to do was mediate. And that might actually be a better approach because it forces people to compromise. So I guess I would have liked to have seen more in a marriage story of why it was that probably Johansson's character was she was so opposed to mediation and really sort of quit. Pretty early on.

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Jonathan Hafetz

We'll get to that, because I think that I think there's a court ordered mediation or something, which is a great scene over support. But I want to just one more question. Kramer versus Kramer and we've kind of covered a little bit. But one thing that's striking about the film, 1979, it was the number one grossing film in the US and Canada of that year, swept the Oscars best film, best director writer Dustin Hoffman, Meryl Streep, both won an acting awards.

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Jonathan Hafetz

A beat out. For what it's worth, Rocky two alien, Star Trek, Apocalypse Now at the box office, not the Oscars at the box office. And it's, you know, it's just a family drama. It's very well made, but you're kind of amazing. This was the highest grossing film of the year. Why do you think that was?

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Solangel Maldonado

I think it was a phenomenal film, but I really think it has to do with where the culture was right. And so much was coming together. Divorce rates were going up. This is also around the time when states were liberalizing their divorce laws. I mean, keep in mind that in New York, adultery was the only ground for divorce until 1967.

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Solangel Maldonado

And so it was in the 1970s when now, it was much easier to get divorce. And then across the country, many states were adopting no fault divorce laws where you no longer have to show adultery or cruelty or abandonment or to get a divorce. So that was part of it. The other thing that I think was huge or, you know, really resonated with people is that, you know, the movie was in a sense sort of a feminist film, right?

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Solangel Maldonado

Joanna, who gets this amazing college education and she wants to do something with it, but she can't. It's almost like she's and she says she's not allowed to both be a mother and also have her own career, even though she can obviously do both. So I think that resonated. It was also, I think, the first time that we see that men, that fathers are really taking on a parental role and that we see that fathers can be just as effective and caregivers, as mothers.

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Solangel Maldonado

So I think all of that is sort of is coming together at a time when the country is dealing with not all divorce laws, the feminist movement, the increase in divorce rates and recognizing, again, I want to go back to sort of father's men who are bringing in the arguments of feminism, saying if women are going to have equal rights in the workplace, shouldn't we also have equal rights in the home and to raise our children?

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Solangel Maldonado

So I think all of that was coming together and really resonated with so much of the country.

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Jonathan Hafetz

Yeah, it does capture the zeitgeist in that sense, and I think that's why they make that shift from terrible father to great father. Meryl Streep seems like a little complicated, I guess. I wonder where your sympathies lie. And maybe it's just a gender perception, but it seems, you know, you first. You feel badly for your sympathies. Lie with her.

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Jonathan Hafetz

You know, Dustin Hoffman doesn't really care about her. He just steamrolls over her desires, her wishes. But then she kind of goes, and then she comes back, and then she says, just going to kind of take her child back. After leaving for 15 months. I feel like you end up at the end. They get you kind of back with.

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Jonathan Hafetz

On Meryl Streep having sympathy, but that's only because she gives up what you want in court.

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Solangel Maldonado

Yeah, I know this was hard. I mean, that's the thing I was I saw where both parties were coming from. So no one would would say that it's acceptable for any parent to abandon their child for 15 months. But then, as she explains it, you definitely understand that she was made to feel that she couldn't be a mother and also have her own interests.

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Solangel Maldonado

And it was it was destroying her. And so she felt that she was an inadequate mother because she wasn't satisfied to just be a mother. And so I understood why she left, and I understood that after some, you know, some she talked about in sort of therapy and she understood now that there's nothing wrong with her, there was something wrong with suicide that was forcing her to choose between being an individual of fully self, realizing the visual and also being a mother, and that now that she understands that, that there's nothing wrong with her, she can actually be a great parent to her child.

00;23;03;29 - 00;23;12;03

Solangel Maldonado

But in the meantime, the fact that it's all or nothing that's a problem with society and the law. That wasn't a problem with the parents here.

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Jonathan Hafetz

That's a great point. And that film really captures that. And then, as you said before, a lot of things have changed. Talk about things that have changed and some have. And in the 40 years later when we have our story. So here we have what on the surface seems to be a better marriage. On the surface, you think it is, right?

00;23;32;04 - 00;23;57;16

Jonathan Hafetz

It starts off where they're each reading thoughts about the other, right? Adam Driver or Charlie reading it about Nicole, played by Scarlett Johansson. And then you realize they're actually at a marriage counseling session and she doesn't like, you know, kind of wants to rip up everything she said. So the marriage is falling apart. On the surface, it looks like kind of an ideal Brooklyn marriage of two upwardly mobile people in 2019.

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Jonathan Hafetz

Nicole then goes to Los Angeles, where she's filming a pilot. She wanted to go back into TV and she brings with her her son Henry. It's supposed to be temporary, but then she decides to stay. How does that affect the situation? Nicole moving to Los Angeles, deciding to stay. What legal significance does that have?

00;24;18;16 - 00;24;38;15

Solangel Maldonado

Well, I must say that when I watched the film for the first time when it came out, I was very frustrated. As a lawyer, as a law professor, I guess I wanted the film to engage more with the jurisdictional issues, which I guess that would it be that interesting to most people who are not lawyers? But to me, I kept saying, well, where's the Uniform Child Custody Jurisdiction Act?

00;24;38;15 - 00;25;00;04

Solangel Maldonado

But you have to talk about this because it was very clear. But they were as as Charlie kept saying that they were a New York family. It doesn't matter that the parties had gotten married in California, that they went to California to visit family periodically. What mattered is what really mattered from the from a legal standpoint, is that the family was living in New York.

00;25;00;06 - 00;25;27;23

Solangel Maldonado

New York was the child's home state, and that means that New York only near court had jurisdiction to make any child custody determinations. The film doesn't grapple with that. And so that was really problematic. But the film sort of just assumes that once you moved to California, that now the California court has jurisdiction, which it does not, but maybe that's just sort of the lawyer, the nerd in me that found that very, very frustrating.

00;25;27;26 - 00;25;54;12

Jonathan Hafetz

I'm curious, but I do think it gestures at the issue because there's the references. Are they a New York family or an L.A. family? Right. But maybe it gets it wrong in terms of or misses the point about the arguments for their being a New York family, because the idea is she moves out there, he serves, he comes out to visit, she serves him with the divorce papers, and he kind of makes the matter worse by continuing to kind of come out and visit.

00;25;54;19 - 00;25;59;10

Jonathan Hafetz

So it got it wrong. So the basically this they would have been treated as a New York family.

00;25;59;13 - 00;26;27;13

Solangel Maldonado

Well. And so this is where again, the jurisdictional issues, you know, get a little bit complicated. So she moved to California. She would need to establish that she is domiciled in California, which will allow her to now file for divorce in California. But that doesn't change the fact that new York has jurisdiction for the custody issues. And so the state that has jurisdiction to issue the divorce decree is not necessarily the same state that has jurisdiction to make a child custody order.

00;26;27;20 - 00;26;50;27

Solangel Maldonado

And so in order for California to have jurisdiction to make a custody determination to address the custody case, the child would have to have moved to California and lived there for six months. And maybe that's what the director was sort of assuming that they had lived in California for six months. It wasn't clear to me, but if the child moved to California.

00;26;51;04 - 00;27;12;11

Solangel Maldonado

But there is a parent who remains in New York. Charlie remained in New York. The New York remains continues to be the child's home state. And it's only New York that should make that decision. But you're absolutely right that in the film it seems that because Charlie keeps going to California, it's almost as if he is consenting to California.

00;27;12;13 - 00;27;32;03

Solangel Maldonado

And then it wasn't great advice for, for the lawyer to tell them to basically try to establish a home in California. I mean, that goes to the substance if the court if the California determines that it has jurisdiction, now you're going to have to show that you have a relationship with the child and you're a good parent, then you're actually going to be here.

00;27;32;06 - 00;27;42;04

Solangel Maldonado

But the fact that now he has a California home really sort of destroyed, defeated the jurisdictional argument, which was really the stronger argument from the very beginning.

00;27;42;07 - 00;27;59;08

Jonathan Hafetz

Right. So it could have played out where they get divorced in California, but the child custody proceeding occurs in a New York court. It's not very sharp on it. I think it does dance around the point. Birth the lawyer play by and all that tells them. First you come visit and he says, no, you should have filed in New York.

00;27;59;08 - 00;28;14;22

Jonathan Hafetz

And when Adam Driver says, let's do it, he says, it's too late. Sort of seems like he gets kind of swept up. There's this question of whether the New York or the LA family, but the choices aren't really presented that clearly. It's interesting you mentioned that lawyer played by Alan Alda, and then the other lawyers in the case.

00;28;14;22 - 00;28;33;15

Jonathan Hafetz

I mean, the lawyers play a significant role in the film. I mean, the acting is fantastic, I think, but they're really more they play a bigger role, I think, in Marriage Story than in Kramer versus Kramer. And you got the three, you know, the three different lawyers. You have Bert Webb, Alan Alda, Charlie's first lawyer, the second lawyer, played by Ray Liotta.

00;28;33;17 - 00;28;57;10

Jonathan Hafetz

There's like a shark. And then Nicole's lawyer, played by Laura Dern, who's also very smooth, very good, very effective. So Alan Alda, Bert, I think you suggested maybe his advice isn't great on the legal issues, but his advice at the 30,000ft level was basically like, they're being fairly reasonable. Let them go to California. You should move out here.

00;28;57;12 - 00;29;16;20

Jonathan Hafetz

They're not fighting you over the money. You're going to spend a lot of money. You're going to have a lot of aggravation. You're going to wind up pretty much in the same place. So settle it turns out Adam Driver doesn't take that advice. He hires Ray Liotta, who goes in, you know, basically he says, you have your sister's wife, you have your jerk.

00;29;16;20 - 00;29;28;08

Jonathan Hafetz

Any my jerk to. And he goes in and fights. And at the end, after a lot of aggravation, they do kind of end up at the same place. So I don't know what. What do you think of the advice of both lawyers?

00;29;28;10 - 00;29;45;01

Solangel Maldonado

So Alan Alda, by initially again, going back to the jurisdictional issue was incorrect when he says, you should have filed in New York, but it's too late. Well, I don't know. Was it too late? Has it been longer than six months? I mean, that is the key. And every single state except for Massachusetts adopted this, the statute.

00;29;45;01 - 00;30;06;22

Solangel Maldonado

So Charlie should have filed in New York and then he could have litigated in New York. However, all in all, Alan Alda was correct that at the 30,000ft level, it was not going to make a difference. And the reason is that he said, once this is all this is all done and over with the two of you, you're going to have to parent your child.

00;30;06;25 - 00;30;27;01

Solangel Maldonado

And if Nicole's live in California and Charlie's living in New York, then it doesn't matter. You know where the child is living. The point is, both parents are going to have to continue to parent this child, and they're going to have to find a way to make it work. And so either Nicole's going to have to come New York to New York, or Charlie is going to have to go to California with a child who's going to be commuting across country.

00;30;27;07 - 00;30;52;09

Solangel Maldonado

And so in the end, I think all in all, the the advice was, you really need to find a way to, to make this work. And this is why, I'm a huge fan of mediation because rather than spending all this money on lawyers, the parents could come to an agreement with a mediator and do what's going to be best for their child for their family, without also trying to bring out the worst of the other parent in court.

00;30;52;10 - 00;31;12;03

Solangel Maldonado

That is one of the things that Ray Liotta and Laura Dern did, which I think is just so disappointing. They try to portray the other parent as unfair, try to portray Nicole as not try to portray Charlie as completely absent. And that's what custody battles force parents to do.

00;31;12;05 - 00;31;29;03

Jonathan Hafetz

It gets ugly very fast. There's that scene where they're ready to say it looks like they've agreed, right? And then Laura Dern and Scarlett Johansson see Adam Driver walking down the hall with Ray Liotta, the new attorney, and she says, Laura Dern says it's over. It's off the table. It's a it's a street fight now, which is what it becomes.

00;31;29;03 - 00;32;02;27

Jonathan Hafetz

And it gets very ugly, very fast. In terms of settlement as a Laura Dern. Nicole's lawyer, does she felt push her to a more aggressive position. Right. So if Nicole Scarlett Johansson's wishes to move to California, and there's no way Adam Driver is going to agree to that voluntarily, it's very clear. You know, he thinks that that means New York and they're going to be staying in New York is the only way to get to that result, to do what Laura Dern says, to stay out there, file for divorce, make him come out, basically get them to be established, even if they fudge it as a LA based family.

00;32;03;02 - 00;32;07;25

Jonathan Hafetz

And if they had gone into mediation, maybe right away they would have been back in New York.

00;32;07;27 - 00;32;27;11

Solangel Maldonado

Yeah. I mean, so this is where Laura Dern, Laura Dern, she does a great job for her client, right? And so Nicole comes to see her, and Nicole just doesn't think that that she that she's going to have the option of staying in California. Right. And she isn't even willing to allow herself to think that she can actually do that.

00;32;27;14 - 00;32;46;27

Solangel Maldonado

And Laura Dern, you know, basically says, tell me what you want. And then she basically tells her, like, this is how we can accomplish it. But in the process with Laura Dern isn't doing is that she's not thinking about how when this is all over, Nicole and Charlie still have to find a way to coexist and take care of their child.

00;32;47;02 - 00;33;09;14

Solangel Maldonado

And so she's focused on being an advocate, which, you know, you want to be a zealous advocate. But when we're talking about family law cases, especially custody cases, I mean, unlike commercial disputes, where maybe you won't see this person again in a custody dispute like this is your ex-spouse or the parent of your child, that person you're going to be, you're going to be seeing them for the next how many years.

00;33;09;18 - 00;33;21;00

Solangel Maldonado

It's also going to be seeing them like for the rest of your life. When your child gets married or at family events. And so that is something that that I think custody lawyers need to always be aware of.

00;33;21;02 - 00;33;51;21

Jonathan Hafetz

Yeah, it's really important. And to point that out in the film. Yeah, there are problems in the relationship. You know, they pointed out a driver had the extramarital affair, but they still have a fairly good relationship and something to build on in terms of post divorce. There's one instance where I think Laura Dern does push it too far, and I think maybe goes beyond what Scarlett Johansson wants, which is when, after Adam Driver agrees to move to California, they're going to do 5050 on the joint custody.

00;33;51;24 - 00;34;07;00

Jonathan Hafetz

But Laura Dern then gets a little bit extra. She's like, now I got you 55%. It's like an extra day every month. I don't know what the math turns out to be, and it seems like it leaves a bad taste in Scarlett Johansson's mouth. She's like, I didn't want that. I don't want that. I didn't want to win.

00;34;07;01 - 00;34;07;26

Jonathan Hafetz

Right?

00;34;07;29 - 00;34;27;29

Solangel Maldonado

Yeah. I was just very disappointed because it was the focus on winning. Right. And she says, like, I got you an extra day every two weeks or something like that. And like, why? Laura Dern is just so focused on winning. Okay. So I'm going to get you something more. You're going to be the primary parent, the parent with primary physical custody.

00;34;28;01 - 00;34;50;17

Solangel Maldonado

And what's the point of that? Right. And it's by the way, you would only have joint physical custody while he's in California. Right? So while he's in New York, obviously the child would continue living with Nicole. So it's almost like the lawyer just wants to to win, to be able to say, oh, I won, as opposed to we reached an agreement that made everyone happy.

00;34;50;20 - 00;35;04;01

Jonathan Hafetz

Loses sight of the larger picture. As effective lawyer as no one seems to combine, like the skills that she has with that sort of bigger picture that Alan Alda seems to have, which might have been another way to resolve the case.

00;35;04;04 - 00;35;23;24

Solangel Maldonado

But one more thing that I want to mention is just like I said and, you know, Kramer versus Kramer, I mean, the parties once the court, I mean, we saw that once the court made a decision how Joanna Kramer basically says to Ted, look, I'm not going to take custody. You you take it. So she decided, whatever the court may have decided, like, I want you to have custody.

00;35;24;01 - 00;35;46;11

Solangel Maldonado

Well, here. Although Nicole ended up with that extra day 55. You know, the custody split was 55, 45 at the very end. I mean, she says to Charlie, do you want to take him? And he said, it's your night. And he she says, no, you take him. So she gives him back that day, even though she's entitled to 55% of the time, she's giving it back to him.

00;35;46;17 - 00;35;49;01

Solangel Maldonado

Regardless of what the law says.

00;35;49;03 - 00;36;15;24

Jonathan Hafetz

They've come to their own, their own terms, which is going to Trump whatever the legal arrangement is. You mentioned the question of mediation. There's a scene in the film where it looks like it's a court super sized mediation where they're discussing support payments. This is just after Ray Liotta comes in that Laura Dern is saying, oh, he's got his, you know, real lawyer win for a street fight.

00;36;15;24 - 00;36;37;03

Jonathan Hafetz

Now then you see, right, Laura Dern and Ray Liotta having this very friendly chat outside the courtroom. It's all friendly. Where are you going to be at this party? You're going to be at this event. Then they go in there a lot, right? Well it's over everything, including the support. I want to play this clip for you. Hear what your thoughts are in terms of the context and the way the support payments and the other issues are discussed.

00;36;37;06 - 00;36;54;05

Movie Dialogue

Ten years ago, Charlie takes a risk when he first hires Nicole as an actress, and his play in New York City. He's a well-regarded up and coming director of the avant garde, and she's known as the girl in that college sex movie who takes her top off.

00;36;54;07 - 00;36;56;27

Solangel Maldonado

My client will not be a luxury artistic in.

00;36;57;04 - 00;37;10;29

Movie Dialogue

Many prestigious theater roles. Later, she becomes an actress of great credibility, and it's because of that credibility that she's offered the lead role in a major television show. This new opportunity.

00;37;10;29 - 00;37;11;24

Jonathan Hafetz

Is thanks to.

00;37;11;24 - 00;37;24;04

Movie Dialogue

Charlie. Your honor, we shouldn't have to pay support money at this point. In fact, Charlie is entitled to half her TV money, present and future earnings of the show.

00;37;24;07 - 00;37;33;24

Solangel Maldonado

Charlie's just received the enormous sum of $650,000 in the form of a MacArthur Greenbaum. This is for the character conducted during the nine.

00;37;33;24 - 00;37;35;29

Movie Dialogue

Installments over five years.

00;37;35;29 - 00;37;41;17

Solangel Maldonado

So by Jason is authentically exhibited to numerous ways.

00;37;41;20 - 00;37;46;18

Movie Dialogue

Debts that he's accumulated with this theater company that stars his wife.

00;37;46;20 - 00;37;57;12

Solangel Maldonado

Not only did she turned down a lucrative and successful career in movies to perform in his little theater, but she actually supplied Charlie with a loan early on to help out.

00;37;57;13 - 00;37;58;05

Movie Dialogue

Which he paid.

00;37;58;05 - 00;38;02;09

Solangel Maldonado

Back. She lent her name to the marquee, which was the principal reason people came to the theater.

00;38;02;09 - 00;38;04;19

Movie Dialogue

Well, that may have been true ten years ago.

00;38;04;21 - 00;38;26;05

Solangel Maldonado

And she helped establish Charlie's reputation. Now, over the next ten years, she was subsequently offered parts in movies, TV shows, most of which she turned down at Charlie's behest to be a mom and act in his place. So while we are willing to be flexible on support, we contend that half of Charlie's grant money be split between the parties.

00;38;26;07 - 00;38;26;22

Jonathan Hafetz

I don't see.

00;38;26;22 - 00;38;30;18

Movie Dialogue

How you can claim that she gets half of grand dedicated to his genius.

00;38;30;18 - 00;38;32;17

Solangel Maldonado

He became a genius during the course of the marriage.

00;38;32;17 - 00;38;33;12

Movie Dialogue

Oh come on, Laura.

00;38;33;15 - 00;38;38;27

Solangel Maldonado

Charlie himself, upon hearing that he received the prize, told Nicole that it belonged to her too.

00;38;38;29 - 00;38;41;22

Movie Dialogue

That's what people say when they win awards.

00;38;41;25 - 00;38;47;29

Solangel Maldonado

No, he was implying what was true. His genius was an intangible asset built during the marriage.

00;38;47;29 - 00;39;01;17

Movie Dialogue

Nora, I like how you refer to Charlie's Theater as a ramshackle downtown dump when you're arguing custody. But when you want more money, he's a big, rich, genius Broadway director. You can't have it both ways. Really?

00;39;01;17 - 00;39;02;16

Solangel Maldonado

Why not?

00;39;02;19 - 00;39;09;15

Jonathan Hafetz

This is extremely well written. A scene that I think triggers a lot of legal issues. What's going on here?

00;39;09;17 - 00;39;34;15

Solangel Maldonado

The first thing I want to say is I'm reminded of what amazing actor Liotta, the late Ray Liotta, was. And he passed too early. So I just wanted to acknowledge that. So what we see here is two people who initially we're not interested in, had agreed to basically divide everything equally. They weren't trying to get spousal support, they weren't trying to get a share of what, you know, these intangible assets.

00;39;34;15 - 00;39;58;10

Solangel Maldonado

Right. So the MacArthur grant, for example. But now that they're fighting over custody, what happens in other cases as well is that, well, if we're going to fight over custody, well, we're going to try to fight about everything else. And so this is this is the reason why sometimes people don't like lawyers very much. Right. Because the real issue here, what they cared about was custody.

00;39;58;12 - 00;40;24;25

Solangel Maldonado

But in a way we're using the money basically about the marital asset. Right. So his celebrity that is the MacArthur, her you know, Nicole's on sort of celebrity status, her contributions. We're using it sort of as a bargaining chip. I mean, that really is what's going on. And it's almost as if the clients, Charlie and Nicole, like, they really they don't really care.

00;40;24;25 - 00;40;33;04

Solangel Maldonado

And this is not what they're focused on, but their lawyers are just using whatever chip that they can use to try to gain leverage. It happens a lot.

00;40;33;07 - 00;41;01;03

Jonathan Hafetz

You can see their faces kind of turning as their lawyers are just turning to attack dogs for their respective clients in this scene. And thank you also for the note about Ray Liotta. A wonderful actor did pass unfortunately into early and it was great to see him in this film towards the end of his career. It's interesting. There's a remark by one of the associates in the film about criminal lawyers see bad people with their best divorce lawyers see good people at their worst.

00;41;01;06 - 00;41;12;22

Jonathan Hafetz

The scene kind of illustrates that a little bit, although the lawyers help bring out the worst in the client. But can be given a task to do with their advocacy, and they're going to do what they can to get to that end.

00;41;12;25 - 00;41;34;11

Solangel Maldonado

Absolutely. And that quote that is just so true. I mean, it's so true that divorce lawyers are good people at their worst. I don't know if the first part of it about criminal lawyers is necessarily true, but but the part about divorce lawyers being good people at their worst. Yes, divorce brings out the worst in people a lot of times, and sometimes lawyers contribute to that.

00;41;34;14 - 00;41;57;19

Jonathan Hafetz

In Marriage Story, I think really captures those points perfectly. Where you went from this situation where there was, well, what seemed a good marriage, but there was unhappiness, but there was. And the ability just going into a descent into this kind of horrible situation between Adam Driver and Scarlett Johansson before they revive at the end and they walk away with at least a working relationship going forward.

00;41;57;21 - 00;42;22;16

Jonathan Hafetz

Looking at the two films together, before we wrap up, we talked about the way things have changed, but you also mentioned about way things haven't changed. One interesting point raised by the films is the views of fathers and mothers. So at the end, when Dustin Hoffman's testifying, trying to win custody of a son, he makes an impassioned plea about why can't fathers be parents to fathers can be good parents, right?

00;42;22;18 - 00;42;45;22

Jonathan Hafetz

It's not just mothers and fighting against what you described as basically the presumption at the tender years doctrine. And then in Marriage Story. Right? Even after 40 years of change and all the different legal and social and cultural changes, Laura Dern is explaining to her client Scarlett Johansson. In the scene, she says the idea of a good father was only invented like 30 years ago and versus Kramer time right?

00;42;45;25 - 00;43;00;13

Jonathan Hafetz

For that. Fathers were expected to be silent and absent, unreliable and selfish, right? Exactly. What doesn't happen was before then, she says. But we expect mothers to be perfect, and you'll always be held to a different, higher standard.

00;43;00;15 - 00;43;19;18

Solangel Maldonado

I do believe that that is true, and many, many scholars have written about this. And even in my class, I sort of make the joke of cases where the father gets credit. There's a case that we cover involving a lawyer, a woman who's a partner in, the name partner and a very well known law firm in Florida.

00;43;19;20 - 00;43;39;13

Solangel Maldonado

And she's there's a custody case between her and her husband, who was an architect, and he was unemployed at the time when they were going through the custody dispute. But they had a nanny, but the husband was getting credit for picking up the kids after school or helping them with a project. But it was the mother who was who was doing everything like in the middle of the night.

00;43;39;13 - 00;43;56;12

Solangel Maldonado

The children went to her and once she got home from work, she's the one who managed everything, who got the kids meals. But the father gets credit for the joke. If he gets credit for pouring the kids a bowl of cereal or his mother's, what kind of unfit mother are you to give your kids a bowl of cereal?

00;43;56;13 - 00;44;18;13

Solangel Maldonado

Like, make sure you give them a warm breakfast. So we still have double standards? Absolutely. But it has gotten better. But we still still hold women to different standards. And I'll just say here, I started teaching. I've been teaching 20 years, but I remember maybe about ten years ago, a colleague who was a very well-known family law scholar, and we were just talking about something, and he was telling me about his love life.

00;44;18;15 - 00;44;36;18

Solangel Maldonado

And he said someone had set him up on a blind date with this woman, but he wasn't going to go because she had children, but they got her custody. And I said, okay, well, so what? He said, do you know what that means? Because she does not have custody of her children. If she doesn't have custody, I just don't think that she'd be a very good person.

00;44;36;21 - 00;44;53;01

Solangel Maldonado

And this is a law professor who is telling me this, like, okay, so we still have in in our culture and even in family law professor circles, people who are making assumptions that if a mother does not have custody, there must be something wrong with.

00;44;53;04 - 00;45;04;19

Jonathan Hafetz

These assumptions and a notions that are so deeply embedded in hundreds, thousands of years of, especially for our Christian culture to still have lasting for us. It's interesting, even as the law has evolved a.

00;45;04;19 - 00;45;05;19

Solangel Maldonado

Lot like.

00;45;05;21 - 00;45;14;12

Jonathan Hafetz

If you were advising on the set of Marriage Story and Noah Baumbach asked you for advice about his film, do I need to make any changes?

00;45;14;15 - 00;45;35;02

Solangel Maldonado

Well, again, I would want to just clarify the jurisdictional issues for me and not only for me, but for other family law professors, who have talked about the film. This was, you know, the real point. It's like, oh, let's, let's, let's make that a little bit clearer. But otherwise, I mean, I think the film was fantastically done.

00;45;35;05 - 00;45;57;01

Solangel Maldonado

I guess I would have wanted more clarification about initially a mediation, you know, what is it that really turned Nicole off the mediation? Because I thought the mediator was phenomenal, having the couple start out by writing all the things that made them fall in love with the other person. I mean, I thought that was just beautiful, and it's the way that the film ends, right?

00;45;57;01 - 00;46;12;28

Solangel Maldonado

You see just how much good there was in this relationship. So I would have liked to have heard a little bit more about, like, why she wasn't willing to mediate. Maybe it was the fact that she all along really wanted to go to California, and she realized that mediation wasn't going to get her there.

00;46;13;00 - 00;46;27;21

Jonathan Hafetz

Yeah, it's interesting. The film's not entirely clear about that. You can read it both ways. And yeah, I think he would have appreciated that criticism. He might have said, no, I need to get to the dramatic action. I need a conflict. So mediation, right. The movie ends after ten minutes. But yeah, that's a great point. That opening scene in New York.

00;46;27;26 - 00;46;42;23

Jonathan Hafetz

And he clearly know Bombeck clearly, even if he doesn't get everything exactly right, it is definitely informed by the lived experience in the legal apparatus around divorce and custody, because there's a lot of law and a lot of legal points that are for me.

00;46;42;26 - 00;46;49;03

Solangel Maldonado

They're both two phenomenal films. I'm very happy to have done this and to have had the opportunity to go watch them again.

00;46;49;05 - 00;47;04;14

Jonathan Hafetz

Yeah. Angel, thanks. It's been so great to have you on law and Film. And the films are both available for streaming. Versus Kramer is on Amazon and Marriage Story is on Netflix. It may be on other sites as well, but you can definitely find them there. So thanks again, Angel.

00;47;04;17 - 00;47;05;16

Solangel Maldonado

Thank you so much.