Paradigm Shifts and Pendulum Swings In Child Custody

By Linda D. Elrod and Milfred D. Dale

This article explores five decades of child custody law, starting with the changes in families and the problems posed by high-conflict families. It discusses the legal changes from presumptions to factor-based, test-interests-of-the child analysis, outlines how the court system has tried to adapt to the growing numbers of high-conflict cases, and sets out the increasingly complex role of mental health professionals in custody disputes.

Challenges posed by redefined families. The "average" American family no longer exists in its idealized 1950s form. Once defined by marriage or biology, families have changed dramatically owing to a steady divorce rate, a growing number of out-of-wedlock births, and the volume of children living with persons outside the traditional nuclear family. Because more than half of divorced persons remarry, children may be exposed to an assortment of stepparents, stepsiblings, live-ins, or other persons. One in three children is born to an unwed mother.

Fit parents have the superior right to the care, custody, and control of their children, but reproductive technolo-gies and blended and same-sex families challenge and expand the definition of a "parent." As more individuals are identified as parents and more kin caregivers are providing homes for children, courts must protect children’s inter-ests within the context of nontraditional families.

Protecting children in high- conflict cases. Tragically, a small but significant number of parents engage in a type of guerilla warfare, litigating repeatedly, clogging courts, and harming their children. The level and intensity of parental conflict are now thought to be the most important factors in a child’s postdivorce adjustment and are the best predictors of a poor outcome. Highly conflicted custody cases disrupt and distort the development of children, placing them at risk for depression and mental disorders, educational failure, alienation from parents, and substance abuse. Children exposed to violence and high conflict are at heightened risk for repeating the cycle of conflicted and abusive relationships as they grow up and try to form families of their own.

From presumptions to parenting plans. Because divorce bargaining and negotiations occur "in the shadow of the law," presumptions, or the lack of presumptions, play a pivotal role in negotiations. For centuries, the patriarchal structure treated children as the property of their fathers. The paternal presumption gave way to a view that place-ment of the children with their mothers was in their best interests. The 1970s saw the removal of the maternal pref-erence. Families became more egalitarian. Giving unwed fathers independent parental rights combined with changes in the family, no-fault divorce, and the removal of the maternal preference to leave the best-interest standard without an anchor.

In 1970 the National Conference of Commissioners on Uniform State Laws adopted a Uniform Marriage and Di-vorce Act (UMDA) with five gender-neutral factors: (1) the wishes of the child’s parents; (2) the desires of the child; (3) the interaction and interrelationship of the child with parents, siblings, and any other person who may sig-nificantly affect the child’s best interests; (4) the child’s adjustment to the child’s home, school, and community; and (5) the mental and physical health of all parties. Many state legislators began with the five UMDA factors, then added others to focus the analysis and resolve conflict by adding more predictability. Although these factors are in-tended to focus the judge on specific parenting skills and behaviors, the diverse nature of unweighted factors still allows for substantial interpretation and discretion.

In response to claims that the "best interests of the child" analysis based on factors was too indeterminate and fu-eled conflict, the American Law Institute’s Principles of the Law of Family Dissolution developed the approxima-tion rule, a method that embraced the primary caretaker concept. In 2000 the American Law Institute proposed that parenting plans "allocate custodial responsibility so that the proportion of custodial time the child spent with each parent approximated the proportion of time each parent spent performing caretaking functions for the child prior to the parents’ separation or, if the parents never lived together, before the filing of the action." In theory, the approxi-mation rule does not require experts or evaluations of complex emotional relationships. Because of greater determi-nacy, the approximation rule may offer an easier to administer, more predictable process.

Through parenting plans, time schedules and routines are negotiated and decided for children and their parents. Some states presume the parents’ agreement, once approved by a judge, reflects the best interests of the child be-cause the parents are in the best position to know their child’s needs, wants, and schedules. Most plans are informal, understood, postdivorce agreements between parents working flexibly with each other. Some have to be more for-mal, detailed, written documents for parents whose conflicts and lack of agreement persist. Parenting plans typically address legal and physical custody; holiday and vacation access; parent-to-parent communication and information exchange; health care and school decisions; provisions for cooperation and collaboration; and mechanisms for re-view.

Role of courts: From fault finder to settlement facilitator. As the characteristics of American families change and we know more about the needs of children, the judicial role in child custody disputes is evolving from an adver-sarial, adjudicative model to a more rehabilitative, service-oriented model. The court’s role has evolved from a strictly comparative task of identifying the better parent to facilitating and, when necessary, enforcing parenting plans. Highly conflicted families have caused dramatic increases in the domestic docket. To encourage parties to make their own agreements and to make the process less formal and less expensive, courts have added alternative dispute resolution techniques, provided court-sponsored educational programs, and expanded concepts of case man-agement. Developments in interdisciplinary collaboration. Today, the successful "outcome" of a divorce means parents meeting the best psychological interests of each individual child, following a negotiated parenting plan, and developing a cooperative or "friendly" relationship with the other parent, who possesses equal parental rights. The evolution of the court’s role to a more rehabilitative, service-oriented model reflects the influence of mental health professionals in custody disputes.

Within what has been described as the "forensic model," contemporary child-custody evaluators emphasize the development of specific psycho- legal questions for evaluation, reliable evaluation methodologies rather than clinical judgment, and collecting data across multiple data sources to confirm or disprove specific hypothetical answers to the psycho-legal questions. Proponents of the forensic model claim their approach represents a paradigm shift in child custody evaluations.

Legal and scientific principles with Frye and Daubert. The work product of child custody evaluators must meet the requirements of expert witness testimony. Most state courts now look to two seminal Supreme Court opinions to gauge the evidentiary reliability and admissibility of expert witness testimony: the Frye test and the Daubert criteria. The Frye standard relies on the scientific community as the arbiters of acceptable child-custody-evaluation practice. In contrast, forensic model evaluators embrace Daubert and its redefined standards for the admission of scientific testimony. Despite the emphasis on Daubert in recent writing about child custody evaluations, child custody cases have been largely unaffected by changes in the legal rules addressing threshold scrutiny of expert testimony.

Based on the Frye and Daubert cases, lawyers may choose to examine or cross-examine on one or more of four elements of expert witness testimony: establishing whether the evaluator qualifies as an expert witness; determining whether the expert’s methods follow applicable professional standards; evaluating the empirical and logical connections between the expert’s methods and conclusions; and gauging the connections between the expert’s conclusions and the expert’s opinion.

Fifty years in search of consensus to resolve conflict. The future will challenge us to reform family law to minimize the divisive custody battles and to develop legal systems that help children and families through divorce and separation. Whatever paradigm shift occurs, whatever direction the pendulum swings, and whatever prevailing scientific and societal views of children and families we choose to embrace, if new approaches do not reduce conflict, they will not be in the best interests of children.

- This article is an abridged and edited version of one that originally appeared on page 381 of Family Law Quarterly, Fall 2008 (42:3).
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- Books and Other Recent Publications: The Special Needs Child and Divorce: A Practical Guide to Evaluating and Handling Cases; The Family Lawyer’s Guide to Bankruptcy, 2d ed.; The Indian Child Welfare Act Handbook, 2d ed.; The Family Lawyer’s Guide to Stock Options; The Military Divorce Handbook; Assisted Reproductive Technology; How to Build and Manage a Family Law Practice; Creating Effective Parenting Plans; The Divorce Trial Manual.
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Linda D. Elrod is Richard S. Righter Distinguished Professor of Law and director of the Washburn Law School Children and Family Law Center; she may be reached at Milfred D. Dale is a licensed psychologist in private practice who graduated from Washburn Law School in May 2009 and may be reached at

Copyright 2009

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