A Cogent Case for a New Child Custody Standard.

Emery, Otto, and O’Donohue give us an admirably clear and hard-hitting analysis of the way our current legal system functions in attempting to resolve child custody disputes. These authors adopt the premises that children will fare better (a) if parental conflict is minimal or at least contained and (b) if children can maintain a good relationship with at least one, and preferably both, parents following the divorce. The authors focus on how procedures for dividing a child’s residential time between two divorcing parents can best further these two goals. The authors argue, as many others have done, that the adversarial nature of litigation processes seriously exacerbates parent conflict. They provide evidence that mediation and other alternatives to litigation are workable, and they strongly recommend that these alternatives be used more widely to help parents resolve their conflicts without recourse to the courts. There will be some parents, however, who cannot resolve their disputes even with the help of mediation, and so turn to litigation. Currently, courts are enjoined to award custody in accordance with whatever arrangement will serve ‘‘the best interests of the child.’’ The authors argue that this best-interests standard is itself a major weakness of the current system. They see it as unworkable because it is too vague. Judges, they say, have found it well-nigh impossible to determine which of two contesting parents can best support the children’s long-term well-being. For one thing, families in which one parent is clearly the more suitable custodian have usually been able come to agreement privately and do not appear in court, so that contestants who do litigate tend to be equally good (or equally bad!) parents on balance. In disputed cases, judges have come to rely heavily on ‘‘expert’’ evaluators to determine the child’s best interests. The authors’ analysis of the weaknesses of these evaluations is sobering indeed. I can only applaud their judgment that standard measures of parents’ and children’s intelligence, personality traits, and emotional states are wholly inappropriate for custody evaluations, and that even the measures and constructs that have been designed specifically to assess child custody arrangements for individual children have no proven validity as predictors of a child’s well-being in the care of one or the other of two disputing parents. Over and above the difficulty of determining children’s best interests, the authors claim that this standard has another serious flaw: Its vagueness tempts parents to dispute. There is no way they can know in advance who is more likely to win, so individual parents often think they will have a better chance in court than turns out to be justified. What is needed is a less ambiguous standard, one that will discourage a parent from litigating (and thereby dampen conflict) if the chances of succeeding in court can be known in advance to be poor. They propose a standard known as the ‘‘approximation rule’’: that the postdivorce division of children’s residential time between the two parents should match, as far as possible, the ‘‘respective involvement of the parents in childrearing during marriage.’’ Obviously, this standard ‘‘tilts’’ toward mothers, since in the majority of families mothers have carried the primary responsibility for childrearing. Is the approximation rule unfair to fathers? In many cases, yes, as the primary role of fathers in traditional and semitraditional families has been to provide economic support. For many fathers, this does not mean that they are any less committed to their children, or any less competent as parents, than mothers who have been doing more of the parenting. Fathers would surely be right to feel aggrieved by losing so much valued residential time with their children following divorce simply because they did less of the day-to-day interaction with children during the marriage. But the child’s residential time is a zerosum game. As I have argued elsewhere (Maccoby, 1999), it is seldom possible to be equally ‘‘fair’’ to mother, father, and child in divorcing families. And while a tilt toward maternal custody may be unfair to fathers, a tilt toward father custody or even joint custody may be even more unfair to mothers. The approximation rule does serve to keep the door open to maintaining the child’s relationship with both parents, by allotting some residential time (overnight and vacation visits) to the less-involved parent. The approximation rule apportions the child’s residential time according to the parenting regime that was in place at the time of the divorce. Judges and court evaluators do not have a crystal ball with which to predict how the child’s need for each parent, or each parent’s parenting competence, may change with time. In intact families, the father’s role relative to the mother’s tends PSYCHOLOGICAL SCIENCE IN THE PUBLIC INTEREST