Is the “Best Interest of the Children” Standard No Standard at All?

In Pennsylvania, as in most states, child custody battles are something of a crapshoot. Theoretically, courts are supposed to enter custody orders that are in “the best interest” of children based on a loose set of factors ranging from parental cooperation to history of abuse to who is adjudged the most emotionally nurturing parent. In practice, however, decisions are mostly entered based on the personal opinion and biases of the judge overseeing the case, which can be based on anything or nothing at all. As a result, decisions can vary widely, even in similar cases. Decisions are certainly not based on any empirical research into what sorts of arrangement are actually in the best interests of children.

Encouraged by parental advocacy groups, several states are trying to make custody battles less arbitrary.

They want to see “presumptions” of child sharing time and duties established nationwide. In other words, parents should enjoy equal time with and responsibility for their children. The International Council on Shared Parenting, which held its first conference in Germany last spring, is the latest to join the field of time-sharing boosters.

The Council’s consensus held that shared parenting “is optimal to child development and well-being, including for children of high conflict parents.” The group also set a minimum of one-third time as the lowest threshold to maintain a positive parental relationship.

In the past, custody decisions favored mom and the idea that very young children need a primary attachment with her.

But through the strength of groups like the National Parents Organization (formerly Fathers and Families) and the International Council, the shared parenting movement has gained traction. Arkansas last year passed a law calling for “approximate and reasonable equal division of time” in child custody cases. A similar bill passed in Florida, but was vetoed by the governor. Massachusetts, Maryland, and Connecticut have all formed commissions to look into the matter.

It is difficult to find impartial and disinterested evidenced-based research. Many “studies” turn out to be funded by the very groups promoting their research. There is, according to Psychology Today columnist and Psychology Professor Robert Emery, a general, even-handed agreement that very young children of divorce thrive when they have one primary parental relationship, bolstered by a strong secondary relationship (one that is, however, secondary); and that older children do well when their time is shared out more evenly.

That is unlikely to settle the ball on the contentious issue of the “best interests” of the children standard. In Pennsylvania, custody is still a roll of the dice, and the odds probably remain in your favor if you are a mother. But the issue is still swamped by debate. Shared parenting is an idea whose time has not quite arrived.