Divorce in Movies: Kramer vs. Kramer

Released in 1979, the movie Kramer vs. Kramer is a cultural benchmark, a snapshot of the fractured American family, and a must-see for anyone interested in family law.

Ted Kramer is a successful guy who is speeding his way to the top at his advertising agency. When the movie begins, Ted has just been handed his agency’s most valued new account, cementing “one of the five best days” of his life.

He is surprised then, when he returns home, that his wife, Joanna, is determined to leave because she doesn’t “know who she is” anymore. She is deserting Ted not only with an entire ad presentation to prepare for the next day but also with their six-year-old son, Billy, to take care of.

Right away we’re close to choosing sides and laying blame: How can she walk out on her home and child? But what we’ve already seen of Ted makes it fairly clear why she might have decided to walk out. She may be leaving the family, but he’s hardly been a part of it. Harassed, running late, and taking his son to school on the first day after his wife has left, he asks Billy: “What grade are you in?” Answer: first. Ted didn’t know.

Over the next 18 months, we see Ted and Billy settle into a routine, but Ted’s work is suffering because of home stresses. When Joanna returns, having found a new well-paying career and a therapist, and demands custody of her son, they enter into the brutal court battle that gives the film its title. As their respective attorneys sink to surprising lows to fight their custody case, Ted and Joanna are shocked with their lawyers’ brutality with the other.

Although our sympathies do tend to be with the father—mainly because we have watched him change—we are basically just acting as witnesses to the drama. The movie has encouraged us to realize that these people are deep enough and complex enough, as all real people are, that we can’t assign moral labels to them.

I won’t tell you the ending, because I don’t want to spoil the film for you if you haven’t see it. I would like to share a few insights into two cultural and legal issues about divorce at that time.

Divorce in Film: the Hays Code

The Motion Picture Production Code, commonly known at the Hays Code, was a set of film industry moral guidelines that was applied to most U.S. films from 1930 to 1968. Under the Code, divorce was rarely, if ever, portrayed on screen because “sanctity of the institution of marriage and the home shall be upheld.”  If divorce was portrayed, it must be only for sound reasons, as a last resort, and never lightly or flippantly. As a result, films during the Code years used annulment, had happy endings where couples got back together, and had bad marriages ending in death (if by murder, then the murderer was always punished under the Code’s “compensating values” rule).

Today, there is no Hays Code. Instead, since in 1968, movies are rated under the following system: G for general audiences, M for mature content, R for restricted (under 17 not admitted without an adult), and NC-17 (originally X) for sexually explicit content.

Kramer vs. Kramer was one of the first major movies to depict realist divorce after the Hays Code.

The “Tender Years” doctrine

Ted Kramer First Meets With His Attorney
Ted Kramer: I don’t know the legal jargon for it, but I think it’s “desertion.” I don’t mean to tell you your job, but I think I have an open-and-shut case.
John Shaunessy: Well, at first Mr. Kramer, there’s no such thing as an open-and- shut case where custody is involved. I’ll bet your ex-wife has already found a lawyer who’s advised her to move back to establish residency. The burden is on us to prove that your ex-wife is an unfit mother. That means I’ll have to play rough. If I play rough, you can bet they will too. Can you take that?

Until the 19th century, English family law gave custody of the children to the father after a divorce, mainly because women had few individual rights and obligations. In 1839, the Custody of Infants Act gave some discretion to the judge in a child custody case and established a presumption of maternal custody for children under the age of 7 years with financial support from the fathers. In 1873, Parliament extended the presumption of maternal custody until a child reached 16. Fathers could only gain custody if they could prove that the mother was unfit.

In the United States, the tender years doctrine was gradually replaced toward the end of the 20th century. Legislation of most states now advocates the seemingly gender-neutral “best interests of the child” doctrine of custody. That said, some judges still firmly believe young children belong with their mothers.

Long-time New York attorney Raoul Felder about divorce law after the movie. “Suddenly I had fathers in my office asking for custody of their children,” he said. “Kramer vs. Kramer challenged the long-held notion that mothers should automatically be awarded full custody of their children. The film marked the beginning of the standard that’s become commonplace today, that the court places the child’s best interest over the presumption that mothers are automatically deserving of custody.”