Abstracts and Papers

Prioritizing Past Caretaking In Child Custody Decisionmaking
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Katharine T. Bartlett

In response to the indeterminacy critique of the best-interests standard, first developed in the legal literature by Robert Mnookin in a 1975 Symposium of Law and Contemporary Problems, the American Law Institute in 2002 proposed that disputed child custody disputes be resolved by allocating custodial responsibility between the parents in a way that approximates the caretaking responsibility each parent assumed when they lived together. The “approximation rule,” which was proposed by Elizabeth Scott in 1992, adds greater determinacy to custody decisionmaking by focusing on the factor—past caretaking—that is most likely to correspond to both the parents’ expectations and the child’s future well-being. Since the ALI proposed this standard, past caretaking has become increasingly important in custody determination.  More jurisdictions require consideration of past caretaking in making initial custody decisions. More jurisdictions weigh the extent of each parent’s caretaking responsibilities in considering petitions by the custodial parent to relocate. And courts in custody disputes increasingly consider awarding custody or visitation to third parties who have lived with children in parent-child relationships and raised them on a day-to-day basis. The greater focus on past caretaking marks an important step forward in custody determinations. It is, however, an unfinished development.  The paper analyzes statutes and recent cases demonstrating that without an explicit priority on past caretaking, the best-interests standard will continue to produce subjective and inconsistent results.

The Uneasy Alliance Between Parents’ Rights and Children’s Interests
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Emily Buss

When Robert Mnookin wrote his ground breaking article, Child Custody Adjudication: Judicial Function in the Face of Indeterminacy, in 1975, the constitutional rights of parents to the companionship and control of their children were only thinly developed. As a result, Mnookin’s consideration of custody standards generally, and the best interest standard, in particular, touched only briefly on the relevance of parental rights. In that discussion he noted that the Supreme Court’s protection of parental authority under the due process clause supported his call for the imposition of legal constraint on the state’s efforts to take custody away from a child’s parents, a sensible and straightforward conclusion.

Since 1975, the Supreme Court has recognized and analyzed parents’ constitutional rights in a broad range of cases. Conventionally, this development is understood to be in tension with the law’s pursuit of the child’s best interests. But this conventional understanding is misguided. In fact, parental rights under the constitution have been justified in child-serving terms. Perhaps more significant, the Courts’ interpretation of parental rights has given some shape to the meaning of the best interest of the child under law.

In her article, Emily Buss will explore the uneasy interrelationship between best interest and parental rights that has been articulated since Mnookin’s article, and its implication for the resolution of cases in both private and public custody disputes. Among the significant cases in the public custody context areLassiter v. DSS and Santosky v. Kramer, in which the Supreme Court’s analysis of parents’ due process rights and the state’s interests implicated in the proceedings were closely, and somewhat enigmatically tied to contentions about children’s best interests. Also considered in the article’s discussion of public custody claims will be Stanley v. Illinois, the first in a line of “unwed father cases” and the only one in which the parental claim is pitted against a custodial claim of the state.

The most important parental rights case that addresses private custody claims is Troxel v. Granville,which, like Lassiter and even more like Santosky, built a conception of children’s best interest into its analysis of parental rights. The fragmentation of opinions in Troxel, however, captures the uneasiness of the relationship between those rights and interests. Other cases that bear importantly on the parental rights-children’s interest linkage in the private custody context include the “unwed father cases” which suggest that the existence and scope of parental rights is tied to categorical judgments about children’s best interests; Palmore v. Sidoti—which either suggests a limit to the paramountcy of children’s interests in custodial proceedings or a way to understand children’s interests as necessarily imbedded in the vindication of the constitutional rights of their parents: and state custody cases in which parents’ religious beliefs are given special consideration within the conventional best interest accounting.

The article will also consider a third set of cases that take up the relationship between parental rights and children’s interests in the context of cases where the state and the parent are perceived as working as a sort of custodial team. These cases, not traditionally perceived as custody cases, nevertheless justify their holdings in part by drawing a connection between parental rights of custodial control and children’s interests. These cases include Belloti v. Baird and Parham v. J.R., which in very different contexts conclude that deferring to parents, with some degree of state oversight, is justified as the best means of serving children’s interests.

Taken as a whole, the cases suggest that the developmental of constitutionally protected parental rights has shifted the law, not away from the best interest question, but away from the individual adjudicator’s role in assessing those interests. The potential implications of that shift for custody decisionmaking will be considered.

Who Knows What’s Best for Children? (working title)
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Robert Emery

Mnookin (1975) was prescient in pointing to the conundrum judges would face in applying the “best interests” standard in the absence of a legislative definition of “best.” What he could not fully appreciate in 1975 was the huge numbers of parents for whom judicial intervention might be requested in the decades that followed. Today, with close to half of marriages ending in divorce and over 40% of children born outside of marriage, judges potentially could be deciding what is “best” for the majority of parents in the U.S. Encouraging parental self-determination is perhaps the most important solution to this impossible problem. Increasingly, never married or divorced parents are being urged to decide what is “best” for their own children in mediation, with the help of lawyers (perhaps collaborative lawyers), or at the kitchen table. Mediation, the best known and best studied form of alternative custody dispute resolution, has proven successful (when clearly defined and well supported) at dramatically reducing the need for judicial intervention and, indeed, promoting more “family friendly” long-term outcomes. More broadly, a hierarchy of custody dispute resolution alternatives has now been created to encourage parental self-determination. For example, education programs for parents who live apart are ubiquitous if marginally effective in encouraging settlement. Custody evaluations increasing can be seen as a form of de facto arbitration. Parenting coordination is a (useful) delegation of judicial authority to mental health or legal experts who serve a med/arb role in co-parenting disputes. This paper will examine these developments in ADR, with a focus on the author’s 12 year follow-up of families randomly assigned to the mediation or litigation of child custody disputes. The paper will also offer suggestions for related legal reform including (a) removing judicial oversight of parental agreements, (b) honoring parental contracts to make developmentally appropriate changes in parenting plans as children grow older, and (c) providing a “menu” of timesharing options to guide in devising parenting plans. Finally, the paper will ask whether U.S. courts should treat never married, divorcing, and divorced parents more like courts treat married parents by refusing to hear parenting disputes.

Tinkering with the Machinery of the Child Welfare System
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Clare Huntington

Mnookin famously argued that the best interest of the child standard was indeterminate in the context of the child welfare system. The open-ended standard did not identify families in need of intervention, nor did it account for the dangers inherent in foster care placement. As a result, too many children were removed from their homes and then left to languish in the limbo of foster care. To address these problems, Mnookin proposed a more determinate standard that would limit state intervention and ensure swifter decision-making following a removal.

In the 1980s and 1990s, Congress and the states reformed the legal standards governing the child welfare system, largely in the direction Mnookin sought. In most states, the standard for removing children from their homes is no longer simply a best-interests inquiry. Instead, most states require a showing of imminent harm to the child. Additionally, once a child is placed in foster care, states require their child-welfare agencies to move relatively quickly, either returning the child home or beginning adoption proceedings.

Despite these reforms, I was struck by a depressing thought when re-reading Robert Mnookin’s article for this symposium. While some aspects of the child welfare system are, indeed, better, the child welfare system of 1975 is strikingly similar to the child welfare system of 2013. Much has happened since he wrote his seminal article—including changes to the legal standards that reflect Mnookin’s proposals—but the child welfare system still does not serve families well.

To begin, the change in legal standards has not always led to the desired effect. Fewer children are in foster care, and the average stay in foster care has decreased, but more determinate legal standards are not always followed. The requirements for avoiding so-called foster care drift are riddled with loopholes and not rigorously enforced in many states. More fundamentally, well-intentioned reforms of the legal standards that govern the child welfare system have done little to stem the larger problems that underlie child abuse and neglect—mainly poverty, social isolation, substance abuse, and parental stress. By the time a family is ensnared in the system, it is often too late for even the most carefully calibrated standard to address the crisis that led the state to intervene. Rather than tinkering with the child welfare system, we should work to build better machine that embraces prevention as its animating principle.

From Third Parties to Parents: The Case of Same-Sex Couples
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Nancy D. Polikoff

In his groundbreaking 1975 article, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, Robert Mnookin identified as the first issue dominating academic discussion of child-custody law “how much weight should be given to the interests of natural parents in custody disputes involving third parties.” His analysis of that issue included the importance to children of psychological parentage. He argued for preferring a third party over a child’s “natural parent” if the third party was a child’s psychological parent and the natural parent was not. Mnookin’s universe of custody contenders consisted of “natural parents” and “third parties.” Each category could be subdivided into individuals who were a child’s psychological parents and those who were not. Mnookin never defined what he meant by “natural parent,” but he implied those persons were a child’s genetic parents.

This paper revisits Mnookin’s typology. For purposes of determining legal relationships, the terms “parent” and “natural parent” have legal definitions. This was true in 1975, but it is even more apparent today. Some individuals who would have been “third parties” at the time of Mnookin’s article are today “parents.” This evolution has been especially important for same-sex couples raising children and for all children born of assisted conception. Some contemporary interpretations of parentage statutes consider the conduct of a person asserting parentage, conduct that sometimes corresponds to the criteria for psychological parentage discussed by Mnookin. Intent can also play a prominent role in determining parentage, as does relationship to the woman giving birth.

Any investigation of parentage today must also take into account Supreme Court rulings since 1975, most importantly Lehr v. Robertson, Michael H. v Gerald D., and Troxel v. Granville. After analyzing court interpretation of state statutes and the constitutional framework, the paper rephrases the issue Mnookin articulated into a form that captures today’s family disputes.

Gender Politics and Child Custody: The Puzzling Persistence of the Best Interest Standard
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Elizabeth S. Scott & Robert E. Emery

The best interest of the child standard has been widely criticized by scholars for its vagueness and indeterminacy, and yet for forty years it has been the prevailing rule for resolving custody disputes. This article confirms the deficiencies of the standard and explores the puzzle of its entrenchment, which we argue is the product of two interrelated factors. First, a protracted gender war has embroiled advocates for mothers and fathers for decades, thereby creating a political economy deadlock. The main front in the gender war has been the legislative battle over joint custody, but it has also played out in the efforts of mothers’ groups to make domestic violence a key factor in custody disputes and the responsive effort by fathers’ advocates to elevate claims of parental alienation. These efforts have brought apparent determinacy to important categories of cases, and thus have contributed to the judicial entrenchment of the best interest standard. Second, courts and policy makers have failed to recognize the intractable problems inherent in resolving these contests because they mistakenly believe that psychologists and other mental health professionals have the expertise to obtain accurate family information and then to evaluate and compare the competing evidentiary claims. Courts routinely ask these professionals to guide them in making custody decisions- an unusual role for experts in legal proceedings. But mental health experts do not have the skill or knowledge to perform these functions; acting without the constraints generally applied to experts, they routinely go beyond the limits of science and of their own expertise in advising courts about custody. Their participation thus masks the deficiencies of the best interest standard and contributes to its perpetuation. Exposing the illusion that psychological experts can overcome the problems inherent in best interest determinations is an important step toward reform and better custody decisionmaking. Desirable reforms include adoption of the ALI approximation standard, restrictions on the admissibility of psychological evidence, and encouragement of private ordering for resolving most custody disputes.

Bargaining in the Shadow of the Best Interest Standard: The Close Connection Between Substance and Process in the Resolution of Divorce-related Parenting Disputes
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Jana B. Singer

In his seminal 1975 article, Professor Mnookin analyzed the emergence and problematic characteristics of the best interest of the child standard for adjudicating custody disputes. Four years later, in another important article, Mnookin and coauthor Lewis Kornhauser trained their keen analytic lens on the process of divorce bargaining and explored “how the rules and procedures used in court for adjudicating disputes affect the bargaining process that occurs between divorcing couples outside the courtroom.”[1] My paper will engage both of these path-breaking articles by examining the close connection between changes in substantive custody doctrine and changes in custody dispute resolution processes over the past 30 years. Part I of the article will explore how the widespread adoption of the best interest of the child standard paved the way for the shift from adversarial to non-adversarial resolution of divorce-related parenting disputes. Just as the adoption of no-fault divorce facilitated the private ordering of divorce disputes, so too has the best interest of the child standard helped mediation replace adjudication and adversary negotiation as the preferred means of resolving custody disputes between divorcing and separating parents. Part II of the paper will reverse the direction of Mnookin’s analytic lens to examine how the shift from adversarial to non-adversarial dispute resolution has affected both the substantive legal norms that govern custody contests and role of law and lawyers more generally in the custody decision-making process. The primary purpose of my analysis will not be to evaluate the desirability of these changes, but to underscore the close connection between changes in substantive legal doctrine and changes in dispute resolution processes.

Legislating for Shared-Time Parenting after Parental Separation: Insights from Australia?
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Bruce Smyth (with Richard Chisholm & Bryan Rodgers)

The changing nature of family life and patterns of women’s workforce participation over the past three decades has meant that parenting roles, expectations and responsibilities are in transition. In many countries, shared-time parenting – where children spend equal or near-equal amounts of time with each parent – is emerging as a new family form following separation or divorce. While much work on joint custody has been conducted in the US, and more recently in Australia, the empirical question of whether legislating to encourage shared-time arrangements benefits children remains controversial. In 2006, Australia introduced significant legislative reforms that encouraged shared-time parenting and made mediation mandatory in most cases. A large research evaluation program was also put in place. While a spike in high conflict cases occurred soon after the reforms, recent data suggest that shared-time parenting more broadly has declined slightly, and is being exercised increasingly by cooperative parents­ rather than those in high conflict. These findings are discussed in the broader international context, especially in relation to the shift towards mandatory mediation in parenting disputes.