Gender Politics and Child Custody: The Puzzling Persistence of the Best Interest Standard

Abstract

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 legal rule for resolving custody disputes. This article confirms the deficiencies of the standard, focusing particularly on the daunting verifiability problems courts face in evaluating claims. Yet, 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, with fathers’ advocates promoting, and mothers’ groups opposing a joint custody presumption. But the struggle 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 the importance of parental alienation. These efforts have brought apparent determinacy to important categories of cases and may have reduced dissatisfaction with the best interest standard but with costs that have not been recognized. Second, courts and policy makers mistakenly believe that psychologists and other mental health professionals have the expertise to obtain accurate family information and to evaluate and compare the competing 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 reform and better custody decisionmaking. 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.