‘Best Interests of Child’ an Open Door to Judicial Bias

This piece takes on the topic of the “best interests of the child.” (Huffington Post, 2/22/11).  It’s nice to see a person with some knowledge of the child custody system say frankly what so many of us have either known or suspected for so long – that the “best interests of the child” is a phrase with little meaning. That doesn’t stop its being used in family law as something akin to magic words which, if intoned correctly might actually accomplish the hoped-for result. 
Alas, it turns out that child outcomes don’t respond to magic incantations.  The fact that saying the words doesn’t make them come true is proven time and again with little notice being taken by family judges who attempt the feat. In the article, Lee Block quotes the website as follows:

[T]here is no standard definition of “best interests of the child,” the term generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child.

Or so they say.  But is that actually what they’re doing?  Or is the fact that there is no definition of a child’s best interests, simply an open door through which a judge’s biases about custody can enter? The answer given by Canadian researcher Paul Millar’s book-length essay entitled “The Best Interests of Children: An Evidence-Based Approach,” is ‘yes.’

Without a definitive set of criteria that defines this supra-constitutional idea of ‘best interests,’… the best interests criteria degenerate into judicial discretion unfettered by any legal constraint save the review of superior courts.

In other words, trial court judges bring to their ‘best interests’ analysis, their own pre-conceived notions and often little else.  I would add that oversight by appellate courts is hampered by those same biases and, into the bargain, the deference traditionally paid by those courts to the fact findings of lower courts. More to the point, as Millar makes clear about Canadian custody cases, is the fact that the overwhelming outcome is maternal custody.  In Canada, mothers get primary or sole custody about 90% of the time.  In the U.S. it’s 84%. In this country, that figure has remained astonishingly constant over the years.  A casual observer might believe that the years 1993 through 2005 would have seen an evening out of child custody between mothers and fathers as more women entered the workplace and gender-neutral attitudes began to pervade most areas of everyday life. Such an observer would be flat wrong, however.  The United States Census Bureau records the following data:  In 1993, there were 13,690,000 custodial parents in the country, of which 11,505,000 (84.04%) were mothers and 2,184,000 were fathers.  By 2005, those figures were 13,605,000 custodial parents, 11,406,000 (83.83%) of whom were mothers and 2,199,000 were fathers. Every state plus the District of Columbia says it seeks the best interests of the child in a number of situations including decisions about child custody post-divorce or separation.  What all those jurisdictions do, however, is to award custody to mothers.  Indeed, Millar says that “parental gender is by far the most important predictor of custody outcomes.” Therefore, either maternal custody is generally in the best interests of children or family courts aren’t acting in the best interests of children.  Millar puts it this way:

[I]f we are to save the possibility that custody outcomes are yet in the interests of children, we are left only with the argument that gender serves as a proxy for characteristics that are important for children’s welfare or we must abandon the claim that the court has been acting in children’s interests.

Sadly for mothers, children, fathers, family courts and the idea of the “best interests of the child,” there is no evidence that maternal custody is better for children than paternal custody.  Millar again:

The later option is the only one supported by the evidence.  The models testing the effect of caregiver gender on children’s behaviour, health and school performance indicate there is no direct effect of caregiver gender on these outcomes.  The models even suggest a benefit, through an indirect effect, of having a male caregiver but this result should be treated with some caution since the sample contained many more female caregivers than male.

Do I have to spell it out?  Empirical facts tell us some inconvenient truths about family courts and the idea of the best interests of the child.  While we say we seek children’s welfare in our custody decisions, in fact those decisions are made on the basis of parental gender and not on what is good for children. Of course few judges do so overtly or even consciously.  What’s mostly at work I suspect is a culture that still defines parenthood not only as women’s highest calling, but one they are uniquely qualified to perform.  The same culture routinely calls men and fathers incompetent at and uninterested in childcare.  That’s when it’s not calling them dangerous to the children for whom they might seek to care. In the face of that conditioning of both sexes, I suspect that no amount of defining of the term “best interests of the child” will make much difference.  Neither will replacing the term with another such as “health and well being of the children” as Block recommends.  After all, no less an authority than the U.S. Supreme Court has, over many decades, said, in a variety of ways, that the best interests of child are connected to having a meaningful relationship with both parents.  And yet, in the face of that strong pronouncement, states successfully marginalize fathers in their children’s lives. There is a way to connect fathers to children and to promote children’s welfare post-divorce.  A legal presumption of equally-shared parenting will help judges to set aside their biases and issue orders that keep fathers and children strongly connected.  And keeping both parents actively involved in the lives of children will promote child welfare as so much social science says it will. Stated simply, equally shared parenting is in the child’s best interests.  Those interests are not likely to be served without it.

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