April 20, 2018 The following post was contributed by a friend of NPO.
The US Supreme Court recently decided an immigration case titled Sessions v. Dimaya that has received extensive press attention because Justice Gorsuch cast the deciding vote against the Trump administration. The opinion is available here: https://www.supremecourt.gov/opinions/17pdf/15-1498_1b8e.pdf.
Justice Gorsuch’s concurring opinion is also noteworthy because it has significant implications for family law. Justice Gorsuch held the statute in question violated the Due Process Clause of the US Constitution because it did not give parties fair notice of what the law required and was, therefore, void for vagueness. As Justice Gorsuch said:
“The implacable fact is that this isn’t your everyday ambiguous statute. It leaves the people to guess about what the law demands—and leaves judges to make it up. You cannot discern answers to any of the questions this law begets by resorting to the traditional canons of statutory interpretation. No amount of staring at the statute’s text, structure, or history will yield a clue.”
Of interest to family law attorneys, the statute that Justice Gorsuch held was void for vagueness is considerably more precise than the “best interests of the child” standard that is used in child custody cases in every US jurisdiction. Many commentators over the last 50 years have observed that the “best interests of the child” standard does not provide any meaningful guidance. According to a brief that was submitted to the US Supreme Court in the seminal case of Troxel v. Granville:
The best interests test has long been the subject of academic as well as judicial criticism for being indeterminate, providing little guidance on how to weigh the different needs of individual children, especially as they change over time; Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs., 226, 257 (Summer 1975). Best interests operates as “an empty vessel into which adult perceptions and prejudices are poured.” Hillary Rodham, Children Under the Law, 43 Harv. Ed. Rev. 487, 513 (1973).4
4. See also Mary Ann Glendon, Fixed Rules and Discretion in Contemporary Family Law and Succession Law, 60 TULANE L. REV. 1365, 1181 (1986) (The “best interests” standard is “a prime example of the futility of attempting to achieve perfect, individualized justice by reposing discretion in a judge. Its vagueness provides maximum incentive to those who are inclined to wrangle over custody, and it asks the judge to do what is almost impossible: evaluate the child-caring capacities of a mother and a father at a time when family relations are apt to be most distorted by the stress of separation and the divorce process itself.”); Gary Crippen, Stumbling Beyond the Best Interests of the Child, 75 MINN. L. REV. 427, 499 (1990); Annette R. Appell and Bruce A. Boyer, Parental Rights v. Best Interests, 2 DUKE J. GENDER LAW & POL. 63 (1995) (analysis of cultural, class, religious, ethnic, and racial biases that pervade totally discretionary use of “best interests”).
The unconstitutional vagueness of the “best interests” standard is apparent once people discover the outcome of a particular case often depends less on its facts and more on the judge to whom it is assigned. There’s a good reason the first question most family law attorneys ask when interviewing a prospective new client is “what judge is assigned to your case?”
Recent surveys of child custody cases, including those in Massachusetts, Michigan, Nebraska and North Dakota, uniformly show that similar facts often produce vastly different outcomes. A recent study of “North Dakota Child Custody Determinations by Judge” found wide variations in outcomes even among judges in the same jurisdiction. Here’s a link to that study: http://lw4sp.org/north-dakota-analysis-by-judge/
Facts that might result in joint legal custody and 50-50 parenting time before one judge often result in sole legal custody and 80-20 parenting time from a judge across the hall in the same jurisdiction. This demonstrates that the standard being used – the “best interests of the child” – is unconstitutionally vague. It’s so vague, in fact, that it’s not a standard at all.
Other legal scholars have observed that judges have used the “best interests” standard to make custody decisions based on parents’ speech and to issue orders restricting their speech, which is unconstitutional for different reasons.
Judicial decisions regarding legal custody and parenting time implicate fundamental Constitutional rights. As a result, judges must use the least restrictive means available to decide the case – this means the judge must protect each parent’s constitutional rights to the greatest extent possible. The easiest way to do this, of course, is to treat both parents equally. Fortunately, this Constitutional standard is consistent with a strong consensus in the mental health research, which shows joint legal and joint physical custody (also referred to as shared parenting) provides the best outcomes for children in most cases.
In light of these constitutional standards and mental health research, trial courts should be required to start every case from a position of joint legal custody and equal parenting time. Any deviations from this position must be based on the specific facts of the case before them (and not the personal preferences of the judge or gender stereotypes) and must be the least restrictive means available. This means, for example, that parental conflict should not automatically preclude an award of joint legal custody. Instead, the court could use tie-breaker provisions to divide the final decision making authority between the parents rather than creating a winner-take-all outcome. Not only would this comply with the Constitutional requirements (because this is less restrictive than awarding sole decision making authority to one parent), it also incentivizes cooperative behavior and discourages litigation gamesmanship, which the mental health community has found produces better outcomes for children.
When reviewing trial decisions, appellate courts should apply the same standard of review they apply to other cases involving fundamental constitutional rights – strict scrutiny. This means they should give little deference to the trial judge and should ensure that, if the decision does not treat the parents equally, the trial court adopted the least restrictive means available. In practice, this means the court should apply progressively more scrutiny to trial decisions as they get farther away from equal time and equal decision making. In other words, an appellate court should give more scrutiny to a trial decision that awarded sole legal custody and 80/20 parenting time than a trial decision that awarded joint legal custody and 60/40 parenting time.
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