“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.