“Best interest of the child” is the standard judges use to make their ruling when two parents cannot agree on a custody schedule. The present-day standard has taken centuries to develop, as Lynn Marie Kohm points out in her article, “Tracing the Foundations of Best Interests of the Child Standard in American Jurisprudence.”
Over the years, women went from having no legal right to keep their children following a divorce to being viewed as essential nurturers with a duty to parent during the child’s “tender years.” At no point along its evolutionary journey, however, has the doctrine been foolproof; as Kohm points out, it is sometimes “used to serve the rights of adults while affording lip-service to the best interests of the child.”
Recent attempts to improve, or standardize, the best interests doctrine have come from some interesting quarters. The Father’s Rights Movement is a big player in the drive to change custody law, lobbying state by state to repudiate the best interests doctrine. “Any and all family law matters which give a judge final discretion to consider the Best Interest Of [sic] the Child, a discretion which has no legal definition, is now and will always be flawed,” the group Fathers4Justice argued while lobbying to change custody law in South Dakota.
These groups want to replace judicial discretion with mandatory joint physical custody laws, claiming that only then will the laws be fair.
Would These Changes Be Good for Children?
That’s an interesting question. Dr. Robert Emery touches on some of the common problems with joint physical custody in this 2009 article published in Psychology Today. These problems have been iterated multiple times in both private studies and those prepared as evidence for the state. The bottom line: Joint custody is beneficial only to a small minority of children with divorced parents — Emery says 10 percent — and it often leaves kids feeling torn in their loyalty to parents.
Despite the fact that it is not in the child’s best interest, men continue to lobby vulnerable state courts for changes, capitalizing on a largely false perception that the courts are biased against them, and they are making headway, especially in the court of public opinion.
How Does Public Sentiment Figure In?
Let me give you an example from my personal life. My ex is dating a woman with a child one grade ahead of my daughter at her elementary school. These two decided it would be appropriate to have lunch with the children in the school cafeteria every week, utilizing an overlap in the scheduled lunchtimes to present themselves as a family unit.
No big deal? It depends on how you look at it. My adopted daughter is the same race as my ex’s new girlfriend and a different race from me. The result of their decision to play house at the school has been that a number of my daughter’s friends and their parents now fail to recognize me as the mother of my own child.
I knew I couldn’t do anything about their lunching together, because my ex’s personality makes reasonable discussion impossible, but when I heard that the girlfriend was bringing meals to my daughter even when my ex was out of town, I felt an important line had been crossed and went straight to the principal’s office.
Here is what I was told. I was told that the school strove to be inclusive. I was told that nontraditional families were valued. I was told that if I came to have lunch with my daughter on a day that the girlfriend was already there, I should turn around and walk away.
In short, I heard that my ex’s girlfriend had an equal right to see my daughter on school grounds. Moreover, I was told that in order to minimize conflict I should behave as though the girlfriend’s rights took priority over mine.
It doesn’t matter that my daughter’s therapist was so horrified that she immediately contacted an expert witness for the family court system who advised her that I could get a court order to stop this from happening immediately.
All that really matters is a feel-good perception in the court of public opinion, based on two underlying principles:
- Mothers should learn to move on and rise above conflict because that is in the child’s best interest.
- Fathers who spend time with their children are acting in the child’s best interest.
My ex, who had never once eaten at my daughter’s school until the girlfriend was in the picture, exploited this perception in order to validate his new relationship.
What is the Real Agenda?
Many of the men who push for shared custody are doing the same thing. They are exploiting a public perception of what is good for kids for their own personal gain. Some are just hoping to reduce or avoid child support payments. Others have found a good way to continue to abuse and control the women they were married to.
The beauty of it is, they get away with it by looking like heroes.
I’m sorry to be blunt about this. I hate to sound like a bitter ex with an axe to grind. But many of the changes to custody law that father’s groups are attempting to institutionalize are bad not just for children but especially for women.
Here are just some of the negative consequences:
- Women receive less child support in joint custody agreements in spite of the fact that they don’t necessarily spent less time and money raising their children.
- Women must maintain households in the same school district as their exes despite the economic hardship that sometimes imposes.
- Women are exposed to ongoing trauma after the divorce that can last for years.
There is little data about how many women have divorced sociopaths and narcissists, the two personality types that inflict the most unrecognizable yet damaging trauma. Bill Eddy estimates that roughly 15 percent of us have “high conflict personalities,” and though there is an overlap, HCPs are overt troublemakers. Individuals on the antisocial continuum, on the other hand, often present as plausible victims, good citizens and innocent bystanders. Their ongoing manipulation and control tactics are not only unnoticed; they are frequently applauded.
Here’s the part where I’m supposed to tell you things are not so bad. But the most I can really say is that divorced women tend to develop impressive strength and resiliency over time.
The basic reality, what this says about us as a society, is grim. A society willing to listen when men’s groups tell us to scrap the “best interest” doctrine in favor of no judicial oversight in contested custody cases is a society that will never stop scapegoating women. It is a society that models contempt for stay-at-home-mothers, who are the most adversely affected by shared physical custody. It is world where we cannot have an honest conversation about our patriarchal bias because we prefers to cater to warm and fuzzy misconceptions.
It’s a world that makes me angry.
Oh, amen. I was a stay at home mom, by mutual decision, for 20 years and when my almost ex filed for divorce, who did he hire? A “mens’ rights” attorney. He hadn’t seen the kids for 18 months, but his paperwork demanded 50-50 joint custody. He folded like a cheap suit at custody mediation, though, when I went through chapter and verse how little he had to do with our childrens’ lives.
We have to push back against this nonsense. We have to value mothers and mothering. Because if we don’t, NO ONE will.
I love this! I’m sure there are some good men out there who actually do want to spend the time with their kids but more often than not it’s all about perception. For the courts, public or significant other. I know that’s how it’s been in my life…the logic being “if I spend more time with him then I don’t have to spend more money on him because YOU aren’t spending the money” sick twisted logic.
Great post. I think it needs to say non-custodial parents though instead of just fathers. It has been my experience that when joint custody is truly in the best interest of the child(ren) the parents work it out, outside of the courtroom. I know a couple of non-custodial dads who have their children every single weekend, every holiday and the entire summer break because their ex wives want them involved and they want to be involved in the lives of their children. These dads also contribute above and beyond court ordered child support. One of them returned from vacation early so he could take his daughter to get her hair done and they got mani’s and pedi’s together the day of prom.
You were exactly right, just because someone is fighting for time with their children does not mean they are a good parent. My ex fought for years, however once the divorce was finalized and I was awarded sole custody. Well, he doesn’t even use his visitation time. He is hit and miss. He wants them at church and public functions with him. He visits the schools and makes sure all of the school staff know him but he doesn’t interact with his kids very much at all. It is all about appearances.
Thank you for writing this.
I find myself having a strong reaction to this piece. I loved Robert Emery’s book “The Truth About Children and Divorce,” and I know he’s a proponent of joint custody. In his article he states that about 10% of divorced couples share joint custody, not that only 10% should. I think that’s an important distinction. Emery says that joint custody isn’t ideal in high conflict cases… Bill Eddy says 15% of the population has a high-conflict personality… those numbers don’t add up. I have a hard time believing that 90% of divorces are of a high-conflict nature.
If joint physical custody leaves children feeling torn in loyalty, does that mean a child would feel loyal only to the parent who would have primary custody? How is that better? In my opinion and experience, loyalty conflicts aren’t created by the parenting schedule but rather by the attitudes and approach of the parents themselves. When children see their parents as members of the same Parenting Team, there is no need to choose sides.
For the most part, I support fathers who try to get equal (or at least increased) time with their children. The amount of time, money and effort they put into the fight is often worth more than what they might save in child support. We live in a culture that easily discounts men as valid parents. TV commercials portray them as morons and we’re all familiar with phrases like “Deadbeat/Disneyland Dad.” Divorce forces changes for everyone- the SAHM might have to get a job while the Workaholic Dad is forced to cut back on hours (or visit school during lunch) to spend precious time with the kids. Priorities shift and roles change. This needs to be accepted and fathers who were primarily financial providers in the marriage should be encouraged to expand their parental roles. Children need their fathers.
You suggest some fathers only want joint custody because it lessens child support and then you say that joint custody is bad for women because it lessens child support. That’s the same Money Argument for both sides: you each want more of it. It shouldn’t be about money.
As for the suggestion that men are fighting for parenting time as a way to abuse and control the women they were married to… I don’t understand this. How is Dad abusing/controlling Mom simply by spending more time with his children?
We also shouldn’t ignore of the fact that not all high-conflict personalities belong to men. Plenty of men are the victims of women who use the system/society to withhold children from loving dads. The experience of a few shouldn’t determine the fate of the majority.
Truly, this is a sad scenario all around. And perhaps the saddest thing is the fact that parents are so willing (even eager) to turn the fate of their families over to strangers wearing black robes.
Well said. My ex was so confident in her custody position that she was willing to put our children’s future in the hands of a judge rather than alternate weeks with me. It wasn’t about the money, I make 5x what she does, she’d still get 90% of the support payments. It was about control.
The thing that I don’t understand about the custody criteria is why there is no recognition that what was true for the intact family will not be true for the divorced family.
She’s not a stay at home mom. She’s a MARRIED stay at home mom. Everyone knows how to stay home. Very few can do it without the support of their spouse. Mom will now have to be financially responsible for herself and share the financial responsibility of the children with dad.
And for the working dad, yes he spent more time away at work, supporting the family, but going forward, he will need to spend less time away and more time parenting. I don’t see why a parent willing to make those changes should be dismissed. In fact it’s worse, dial your hours back to spend more time with the kids and you are likely to get your income imputed.
While there might be some dad’s who only want the extra parenting time to reduce their child support payments, I doubt it’s the norm. I think it is more a norm that mom’s look to reduce the time in order to maximize the child support. It only makes economic sense. In my world most divorced parents alternate weeks, and I’m sure that none of the dads that I know are doing it to save money. Because of the way child support is calculated, if they make more money, they still pay child support.
“We also shouldn’t ignore of the fact that not all high-conflict personalities belong to men. Plenty of men are the victims of women who use the system/society to withhold children from loving dads.”
This is so true. It fits my husband’s ex-wife to a T. The problem is that with her “primary” parenting status, she gets to decide who’s right, and news flash, it’s always her.
Fortunately, my husband had the stamina and financial means to put up the good fight and has his son 1/3 of the time. Forget about getting one extra minute or taking his son to a game when it is not his “VISITATION” (she says it like it’s a punishment).
“We also shouldn’t ignore of the fact that not all high-conflict personalities belong to men. Plenty of men are the victims of women who use the system/society to withhold children from loving dads.”
This is so true. It fits my husband’s ex-wife to a T. The problem is that with her “primary” parenting status, she gets to decide who’s right, and news flash, it’s always her.
Fortunately, my husband had the stamina and financial means to put up the good fight and has his son 1/3 of the time. Forget about getting one extra minute or taking his son to a game when it is not his “VISITATION” (she says it like it’s a punishment).
The best interest of the child standard is unfair to fathers. It is also supposed to be unfair to mothers. It essentially says the court doesn’t care what is fair for the parents, only about what is best for the child. Unfortunalty for dads is the custody criteria and the system that implements it fundementially favors moms, so when the BIOTC standard is applied, it’s time for dad to get marginalized if he’s lucky and royally screwed if he’s not.
I have sole custody of our kids, but I can tell you, I didn’t get it by showing that I was a great dad. I did it by showing I was a better mom than my exwife was. Frankly, that wasn’treally enough, my ex also screwed up a couple of things.
The latest push from the fathers’ rights advocates is a “rebutable presumption of shared physical custody”. Essentially you have to prove that it is not in the childs best interest to share custody, and if a judge rules against the shared custody, he has to give a reason. It gives judges an out for high conflict/abusive/substance issues/mental issues divorces.
In my case rebuttable presumption of shared physical custody would have saved a big court fight. My ex was having an affair, but we could have coparented. She just wasn’t willing to. It wasnt’ in her best interest. It meant that she couldn’t set the agenda. She wanted to minimize my time with the kids and to be able to move out of state when her BF got his big promotion.
When I first met with my lawyer and she explained custody and things like Best Interest of the Child, I thought is sounded great. Let’s put the kids first! She burst my bubble with the realities of what that means in actual practice. Lots of seemingly little things that put non-custodial parents at a significant disadvantage. The thing that I was amazed at was nowhere did it say that it was in the child’s best interest to have two parents, even if they didn’t live together. And more specifically, things that would marginalize or elmiate one of the childs parents were fundementaly not in their best interest. Because my soon to be ex-wife wanted to relocate with our children and the core legal justification for allowing a move was “Best Interest of the Child”, I spent a lot of time focusing on it. There seems to be a fundemental view that best interest of the mom by default includes the best interest of the child. Probably a weak argument in the 1940’s, and preposterous these days.
All I can say is that it’s a real mess. Standard practices and case law that were set in the fault divorce era to deter men from leaving their families colliding with partially implemented no-fault laws of today. From what I’ve seen, the implementation of “best interest of the child” is terribly unfair to children and their fathers, and increasingly as more and more dad’s get custody, it will be unfair to mom’s as well. In my case, I had a really good legal team who guided me around the pitfalls and helped me secure my relationship (and primary custody)with my kids. Does it restrict my ex? You bet, but why should she be able to follow her dreams if it means eliminating me as a parent?
Bunch of sexist nonsense. Very jealous of children relationships with their father. Written by a narcissist who can’t handle sharing a child. Worried children will love daddy more then them. Also noticed the fact your treating your child like a paycheck. Your child will see through your alienation and cut ties with you in the future. 50/50 custody is the only healthy answer.