NCPA - National Center for Policy Analysis

Experts Rethinking Child Custody Decisions

July 30, 2003

Child custody decisions in divorce proceedings should no longer be based on the "best interests of the child," according to many psychologists, lawyers and academics.

Criticism of the "best interests of the child" test has been building gradually since the 1970s. For example, Robert Galatzer-Levy, author of the forthcoming book, "The Scientific Basis of Custody Decisions in Divorce, " says most theories about children's best interests "haven't been tested out in any way" and sometimes turn out to be flat wrong.

Alternative ways to determine child custody have been proposed. For instance:

  • The American Law Institute recommends an "approximation" test that bases on the division of parental responsibility before a family splits.
  • Howard University political scientist Stephen Baskerville proposes that, all else being equal, the parent who makes the decision to leave the marriage should be the one to give up custody.
  • Jon Elster, a social scientist at Columbia University, suggests that custody be awarded by a coin toss, giving both parents an equal chance and reducing the harm that constant litigation often inflicts upon children.
  • Mary Ann Mason, dean of the graduate division at the University of California at Berkeley claims that shared custody, split 50-50, could work when all family members involved are committed and flexible.
  • Custody law in California allows parents to design their own custody plan and stipulate to it in court, while also giving them the option to leave it to the courts to decide.

The number of specialists claiming that the best interest rules are bad for families suggests that changes in custody laws may be seen in the near future.

Source: Claire Cooper (Scripps Howard News Service), "'Best interest' rule often harms child," Washington Times, July 23, 2003.


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