Paradigm Shifts and Pendulum Swings in Child Custody

The impact of child custody law’s paradigm shift to the gender-neutral best interests of the child standard in the 1970s almost defies description. Rather than basing custody decisions on gender- or status-based presumptions, judges were suddenly charged with making individualized determinations without presumptions or a clear default position. As Joan Kelly noted:

. . . each recommendation, each decision made, considers the individual child’s developmental and psychological needs. Rather than focusing on parental demands, societal stereotypes, cultural tradition, or legal precedent, the best interests standard asks the decision makers to consider what this child needs at this point in time, given this family and its changed structure . . .

Having judges exercise the state’s parens patriae power was not new; not knowing what the judge would say or what might happen if the parents did not agree was new. Parents who made daily decisions about their child during the marriage suddenly faced an unpredictable legal process before a judge. In a highly formal, but often truncated, proceeding, the judge would tell parents with whom the child would live and what decisions each could make.

The best-interests-of-the-child process for an individual child is the ultimate exercise in examining the “how” and “why” connections between behaviors, attitudes, and attributes of parents and the psychological and developmental characteristics of their children. Finding the best interests of the child is an attractive public policy and a lofty objective, but it is a difficult operational standard. When compared to the legal presumptions it replaced, the best interests standard has been assailed as indeterminate and unpredictable.

Judges, without the requisite training in child development and adequate resources to fully investigate these intensely fact-sensitive cases, tend to rely on their own value.’ While many judges continued to look at the importance of stability, past caretaking and emotional bonds, others considered a variety of factors, leading some to argue that the neutral best-interest standard hurt mothers. The last forty years have seen various attempts to reign in judicial discretion with new presumptions, preferences, and lists of factors.

This is an excerpt from a law review article: 42familylawquarterly381