NCJ Number
114923
Journal
Yale Law and Policy Review Volume: 5 Issue: 2 Dated: (Spring/Summer 1987) Pages: 267-290
Date Published
1987
Length
24 pages
Annotation
This article argues that the 'best interests of the child' legal standard used in awarding child custody is vague and platitudinous and should be replaced because it is abused by judges who administer it and by parents who use it to put their interests before those of their children.
Abstract
A recent Kentucky study indicates that judges usually focus on the parents' rather than the child's best interests when awarding custody. Other legal doctrines and psychological theories regarding child custody are also analyzed and found lacking: the tender years doctrine, the theories of the primary caretaker and the psychological parent, the notion that continuity is more important to the child's well-being than decreased conflict between parents, and joint custody. The author cites research analyzing parental motivation in custody disputes and concludes that, absent a situation where one of the parents is obviously unfit, custody fights reflect at least one parent's inability to put the interests of the child before parental interests. Courts should encourage such parents to settle their differences outside of court through negotiation or to seek mediation services. The author proposes legislation to clarify the best interests of the child standard to reflect parents' capacities to put their children's interests before their own marital conflicts. 109 footnotes.