Why the “Best Interest of the Child” Standard Actually Fails Children

As the conversation escalates in North Dakota over Measure 6 and across the nation about what truly is in the “best interest of the child” when it comes to divorce or separation and custody matters, can we all step back a moment and truly look at what experts agree in this day and age, is in the best interest of our children?

Every state preaches ‘best interest’ but there is nothing concrete about it – anywhere our family court system. Every state right now has their own definition. Every judge brings to the table their own bias. And every family, their own set of issues, battles and concerns.

While possibly well intentioned decades ago when first established, current best interest standards, custody rulings and determining factors of who should be awarded custody are at the very least out-of-date if not totally ignorant of the changing roles in society, not to mention the past couple decades of current social science research findings on what truly is in the best interest of the child.

Reform is needed. And below are just a few of the reasons states should stay out of the decision making between fit, willing and able parents.

1) Most states current ‘best interest of the child’ factors and rulings become an either/or situation for kids. Either you go with mom, or you go with dad. The other parent is instantly minimized and marginalized regardless of their roles prior to any family split. An example; two parents are both wanting, willing, able and capable of raising and co-parenting their children. Out of 13 factors a judge looks at to determine what might be in a child’s ‘best interest’ – one parent is perceived to have a slight edge over the other in one simple factor. Just one out of the 13. That parent essentially ‘wins.’ Meaning, they are awarded primary placement, leaving the other parent more often than not, minimized both in parenting time and decision making.

2) In states where shared parenting isn’t encouraged or isn’t mandated be considered as best possible, the door is wide open for judicial bias. And you may be shaking your head and listening to attorneys and judges say this doesn’t happen, but is virtually impossible for this not to occur. Say one parent wishes to home school their child. One judge may believe this is far superior to public education, this parent would most likely win custody of the children due to the “bias” of that particular judge. Conversely if the same case was heard in a different court, where the presiding judge believed the opposite to be true as far as schooling was concerned, the ruling would most likely be entirely different. Each of the ‘best interest’ factors are ensnared with countless examples of where these same types of biases to come into play. No mandate to at least consider shared parenting as best possible between two fit and willing parents, leads to a very haphazard process and attorneys telling their clients they do not know what will happen in court, which in turn, drives ongoing, expensive and damaging to the kids as much as anyone, litigation.

3) Judges who make family court rulings are most often trained in the ‘best interest’ factors by their own State Bar Associations. Check your own state’s records to see how often any of them have ever voluntarily come out in support of a shared parenting measure that has been brought forward. Hand picked research showing its best to minimize one parent is what is most often perpetuated at a time current research shows in fact, The more shared parenting that is awarded – as close to 50/50 as possible with two fit parents – litigation is significantly reduced.

4) Judges most often making these ‘best interest’ rulings are lawyers, trained in law, not in psychology, family dynamics or taught how to recognize physical or emotional abuse. How often do you think they’re following up in the home to see how well the kids are doing?

Edward Kruk in his landmark book, ” The Equal Parenting Presumption: Social Justice in the Legal Determination of Parenting After Divorce writes:

The high potential of judicial bias in sole-custody-oriented parenting after divorce disputes results from the fact that judges are not trained in the complexities of child development and family dynamics (Woodhouse 1999).

5) No one tells married parents that one of them is more important than the other, how to raise their children or what is in their child’s best interest, unless there is obvious ill-will or wrongdoing. So, why is it when a family chooses to separate does one most often get told to sign in and wear the visitor badge?

Fred Silberberg writes in 2012 in Equal Custody Between Parents Should Be The Legal Norm:

The fact is, we don’t license parents in the country. We let things take their course naturally and people have children whether they are good parents or not. It is not until the parents can’t get along any further that someone is now called upon to determine whether it is in the children’s “best interest” to spend time in the primary care of one parent or another, or whether that arrangement should involve an equal timeshare.

6) Current US Census Statistics claim 82.2% of all custodial parents are mothers. The best interest standard, you could then assume, is a way for the Courts to perpetuate the former tender years doctrine. The tender years doctrine simply automatically grants custody to mothers in the event of divorce or separation of parents. Most tender years doctrines were repealed in the 1970’s and replaced with the “best interest of the child” standard. But it appears by the statistics that the tender years doctrine is alive and well through the best interest standard by way of judicial discretion and bias. Does this reflect parenting roles in most modern day homes? Mothers increasingly work and work outside the home. Fathers are increasingly staying home and involved in every aspect of parenting including changing diapers as much as they are making sure the diapers are paid for.

Here’s Edward Kruk on that subject:
“For example, current data indicate that judges do not fine-tune their decisions to parenting patterns that existed before divorce, but rather base their decisions on gender, continuing to use a gender-based stereotype of mothers as providing superior “tender years” care (Millar 2010; Kruk 2008).”

The tender years doctrine (as well as the current statistics) is gender biased, sexist and anything but in the true ‘best interest of children’.

7) The Supreme Court in Troxel v Granville proclaims “fit parents act in their child’s best interest.” Essentially, the court is stating fit parents know what is best for their children, not the court. The fact that states impose their version of the best interest is a direct violation of a parents civil right to parent their child.

8) In most states there is NO PARENTING TIME RECOMMENDATION FOR FIT PARENTS within the best interest of the child factors. With the exception of a few states (Arizona, Wisconsin, Arkansas) no states have tied this very important (the most important) factor into a statute. When maximized parenting time has been proven in all research to be in the ‘best interest of the child’ in most cases why haven’t more states defined this? State Bar Associations have fought fiercely to keep a defined amount of parenting time out of the best interest factors in nearly every state. One could assume attorneys have a financial interest in not maximizing parenting time? Re-litigating cases has been shown in research to be reduced in shared and equal custody situations. A Comparison of Maternal, Paternal, and Joint Custody shows that relitigation as well as conflict was reduced in shared custody arrangements over time when compared to sole custody arrangements.

Equal or maximized parenting time is in “the best interest of child” as long as parents are fit. You cannot truly have the best interest of the child in mind and at heart without this!!!!!

Placing the “best interest” factors after parental fitness will provide for the true “best interest of the child”. Once fitness has been shown and equal parenting is presumed but allowance made for rebuttal, it will provide what children need most – maximum contact with the two most influential people in their lives – their parents. There is no perfect parent and it is just as important a child see both parents flaws as well as long as their strengths provided those flaws are not detrimental to long term child well being.

Let’s work on reforming the best interest standard and placing more emphasis on equal parenting time between fit parents as the best interest of the child.



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