Let’s Talk About Nicole, Charlie, and Nora

Since mid-December, every family law attorney in the country has shared the same two clients – Nicole and Charlie. The protagonists of Netflix’ huge critical and commercial success, Marriage Story.

Everyone asks about it. Before I can even answer “Did you see it?” the same four questions inevitably follow in rapid succession: “Is it accurate?” “Did it feel real?” “Are you Alan Alda, Laura Dern, or Ray Liotta?” “Did it end the way you thought it would?”

To which I answer: “A bit.” “Yes!” “I also like to think of clients as people; Laura’s awfully stylish, so . . .” “no, you’re not going to hate me when the divorce is over” and “Not exactly.”

Then I add, unsolicited, “I just hope Marriage Story doesn’t do any lasting damage to the way people perceive custody issues, but I’m not sure it won’t.”

Here’s what I mean:

It was almost exactly forty years ago that a movie about divorce and child custody rolled into awards season up for everything. It had an amazing cast, a great director, swept the Oscars, and shaped the way many – too many – people viewed divorce and custody for at least the next two decades, if not more, and not in a good way.

That movie was Kramer vs. Kramer. Dustin Hoffman was one Kramer (Ted), Meryl Streep the other (Joanna). In Kramer, Johanna left Ted and their six-year-old son, Billy, to “find herself.” She had been the prototypical stay at home mom; Ted was the prototypical workaholic; she left; he didn’t even know Billy’s school schedule.

Fast forward, Ted learns how the be a father, loves the kid (that was up in the air to about the mid-point of the film) has bonded with him; Johanna comes back, wants custody; they fight it out in a nasty courtroom scene; she gets custody; in the last shot, she – somewhat inexplicably – gives  custody back to Ted and heads off for California.

That’s Kramer vs Kramer in a nutshell. The fallout from it, however, fills volumes. It’s been the subject of law review articles for years. Because, the one ringing movie-truth that came out of it was loud and clear: “Mothers always get custody . . . always, despite everything, including leaving.”

Of course, that wasn’t true in real life, especially under the circumstances in the film, but reality seldom makes for a ninety-minute movie. But, the image of a distraught Dustin Hoffman when his lawyer gives him the news that he ‘lost’ with a shrug and, “Well, she’s the mother,” was the face of family law for years. That message, repeated as if gospel by many divorce attorneys, was if you were a ‘good father’ and wanted custody, you had to destroy the mother in court.

Marriage Story has a something to say about the ‘good father.’ It’s relayed by Nora Fanshaw, Nicole’s attorney. She’s played by a stunning Laura Dern (quick aside, she owned 2019) who won a Golden Globe for her performance. The award was probably guaranteed by her two-minute monologue on ‘good fathers’ and custody.

“Let’s face it, the idea of a good father was only invented like 30 years ago. Before that fathers were expected to be silent and absent and unreliable and selfish  . . .” is how it starts. That could be a direct reference to Kramer vs Kramer, just off by a decade, for the simple reason that until 1979 movies weren’t exactly overflowing with great, engaged dads. Even George Bailey wasn’t around Zuzu and the rest of the kids all that much.

Nora adds that fathers are accepted “for their fallibilities” while mothers have to be “perfect” and, as far as the courts are concerned, will “always be held to a different, higher standard.”

She says all this after advising Nicole to not talk about drinking wine with dinner when she meets with a court-appointed custody evaluator. The courts can “accept an imperfect Dad” but not a Mom who drinks wine. .

That’s where I have a problem with Nora. In a family law matter, no one is perfect. There is no perfect parent – mother or father or adoptive parent. Moreover, the system isn’t built on measuring and comparing levels of perfection before rendering decisions

As a matter of fact, the pretense of perfection – “Nope, I don’t even have a glass of wine with dinner’ is not only a lie, it’s sanctimonious. There is nothing like sanctimony to take a straightforward family matter and turn it into a court case out of a Dickens novel.

There’s a clue as to why Nora says this – by the way, while I don’t agree with everything she says, I love the way she says it, it is a great scene – is in her last scene with Nicole, describing the settlement:

NICOLE (clinking glasses) OK, good. Thank you for everything, Nora

NORA You’re welcome, doll. (pause) And when Charlie’s in LA, I got the custody breakdown to be 55/45, so you’ll have Henry one extra day every two weeks…

NICOLE I thought we made it equal.

NORA I tweaked it at the last minute. I just didn’t want him to be able to say he got 50/50.

NICOLE But I don’t—

NORA Bragging to his friends.

NICOLE –want to do that.

NORA Take it! You won.

NICOLE (sadly) Uh huh.

There it is – winning.  Family law is not about winning, it’s about equitably ending a marriage so both parties can finally get out from under the stress and move ahead with new lives. Nora’s unwanted win for Nicole is chintzy and hollow and could have  – with clients not as in sync with each other as Charlie and Nicole – thrown the whole matter back into litigation.

I don’t know how I would have handled a client coming to me in 1980 after seeing Kramer vs Kramer and absolutely sure he had no chance at custody because ‘mothers always win.’ But, I do know what I’ll tell clients who walk through our doors today – especially clients like Nicole or Charlie – after watching Marriage Story: we have a real shot at settling this in mediation – just be yourselves. No one is perfect.