Planning for Children and Resolving Custodial Disputes: A Comment on the Think Tank Report

Abstract

This comment praises the report from the AFCC Think Tank on Research, Policy, Practice, and Shared Parenting for its support for separating parents' active role in custody planning, its emphasis on both parents' involvement in postdissolution parenting when cooperation is possible and also its recognition of the destructive impact on children of interparental conflict. The comment also commends the report's highlighting the importance of social science research in informing policy in the area, while recognizing that research has little utility in resolving individual cases and is often subject to misuse both in courts and in the policy arena. My primary criticism of the report is its endorsement of the best interest of the child standard as the basis of individualized decisions by judges when parents fail to agree on custody plans. I argue that the application of the best interest standard is in tension with the goals and values of the report, promoting conflict between parents by inviting them to offer evidence of each other's deficiencies, undermining their future cooperation, and encouraging judges to rely inappropriately on mental health professionals who have little expertise to offer in this setting. Instead, I argue that the American Law Institute's (ALI) approximation standard, which allocates parents' future time sharing on the basis of their past roles, is more compatible with the report's goals. The ALI standard promotes parental involvement and cooperation, reduces conflict, and deters the inappropriate use of expert testimony and of weak social science research evidence. Key Points for the Family Court Community: Parental cooperation and shared involvement in parenting postdissolution promotes children's welfare. Parental planning and decision making about their children's custody usually furthers this goal. For parents who cannot agree on custody, the application of the best interest of the child standard is likely to undermine future cooperation. The American Law Institute's approximation standard is more likely than the best interest standard to further the goals of the Think Tank report.