Elizabeth S. Scott* & Robert E. Emery**
The best interest of the child standard has been widely criticized by scholars for its vagueness and indeterminacy, and yet for forty years it has been the prevailing rule for resolving custody disputes. This article confirms the deficiencies of the standard, focusing particularly on a problem that has received little attention: Best interests poses daunting verifiability problems because a) much family information is private, b) parties often are unable to prove the qualitative factors that that lawmakers have endorsed as proxies for best interest, and c) the incommensurability of these factors precludes courts from assigning them appropriate weights.
Despite the substantial risk of erroneous or arbitrary custody decisions, the best interest standard remains firmly entrenched, with the apparent approval of policymakers and courts. We explain this puzzle as the product of two interrelated factors.
First, a protracted gender war has embroiled advocates for mothers or fathers for decades, thereby creating a political economy deadlock. The main front in the gender war has been the legislative battle over joint custody, but it has also played out in the efforts of mothers’ groups to make domestic violence a key factor in custody disputes and the responsive effort by fathers’ advocates to elevate claims of parental alienation. These efforts have brought apparent determinacy to important categories of cases, and thus have contributed to the entrenchment of the best interest standard.
Second, courts and legislatures have failed to recognize the intractable problems inherent in resolving these contests because they mistakenly believe that psychologists and other mental health professionals have the expertise to obtain accurate family information and then to evaluate and compare the competing evidentiary claims. Courts routinely ask these professionals to guide them in making custody decisions- an unusual role for experts in legal proceedings.
But mental health experts do not have the skill or knowledge to perform these functions; acting without the constraints generally applied to experts, they routinely go beyond the limits of science and of their own expertise in advising courts about custody. Their participation thus masks the deficiencies of the best interest standard and contributes to its perpetuation. Exposing the illusion that psychological experts can overcome the problems inherent in best interest determinations is an important step toward real reform and better custody decision making. Desirable reforms include adoption of the ALI approximation standard, restrictions on the admissibility of psychological
evidence, and encouragement of private ordering for resolving most custody disputes.
I. INTRODUCTION ................................................................................……….……..2
*Harold R. Medina Professor of Law, Columbia University School of Law.
**Professor of Psychology; Director, Center for the Study of Children and the Law, University of Virginia. For helpful comments, we thank Kate Bartlett, Emily Buss, Peg Brinig, Maxine Eichner, Bert Huang, Clare Huntington, Jeannie Suk, Lois Weithorn and especially Robert Scott. For excellent research assistance, we thank Sara Weinberg, Sadie Holtzmann and Kristine Van Hamersveld.
II. THE BEST INTEREST STANDARD AND THE PROBLEM OF VERIFIABILITY .......7
A. A Brief History of Modern Custody Doctrine ..........................................…………..7
B. Custody Decision making and the Limits of the Judicial Capacity ....................…9
1. Traditional Arguments for and Against the Best Interest Standard ...........….. 9
2. An Overlooked Consideration: The Problem of Verifiability ....................…….10
a. Family Privacy and Verifiability. ..............................................…………….11
b. The Challenge of Qualitative Proxies .........................................…………12
c. The Incommensurability Problem .............................................………….13
3. The Search For Better Proxies For Better Interest ............................………..13
III. THE GENDER WAR OVER CHILD CUSTODY REGULATION ............................... 15
A. Legislative Struggles and the Political Economy Deadlock ..............................…16
1. The Father’s Movement and the Battle over Joint Custody ......................….16
2. The Politics of Motherhood .........................................................……………20
3. Legislative Response to Gender Politics.............................................……...22
B. Defining Best Interests- Domestic Violence and Parent Alienation .....................23
1. The Domestic Violence Presumption ..............................................………..25
2. Parental Alienation as a Response. .................................................………..31
IV. THE ILLUSION OF PSYCHOLOGICAL EXPERTISE IN RESOLVING CUSTODY
DISPUTES ...........................................................................................……………………..35
A. How Important Are Mental Health Experts in Resolving Custody Disputes? ..........36
B. Analyzing the Custody Evaluation Process- The General Critique .....................…38
C. Assessing Family Violence and Parental Alienation ......................................……..41
1. Family Violence. ......................................................................………………….41
2. Parent Alienation “Syndrome.” ......................................................……………..43
D. Bad Science and the Absence of Evidentiary Standards .................................…..45
V. REFORMING THE BEST INTEREST STANDARD ................................................…..47
A. The Case for Approximation .............................................................………………48
B. Improving Accuracy in Custody Proceedings .............................................……….51
C. Avoiding Adjudication- Collaborative Divorce and Mediation ...........................……53
CONCLUSION ..................................................................................………………….56
Full Article Here:
Gender Politics and Child Custody- the Puzzling Persistence of the Best Interest Standard
