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 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.
Date of Authorship for this Version
Scott, Elizabeth S. and Emery, Robert E., "Gender Politics and Child Custody: The Puzzling Persistence of the Best Interest Standard" (2011). Columbia Public Law & Legal Theory Working Papers. Paper 9200.