Best Interests of the Child ABC’s: Anxieties, Benefits & Costs

Best Interests of the Best Interests of the Child ABC’s:Child ABC’s:

Anxieties, Benefits & Anxieties, Benefits & CostsCosts

Bud Dale, Ph.D., J.D.Bud Dale, Ph.D., J.D.

Washburn University School of Washburn University School of LawLaw

January 7, 2010January 7, 2010

Best Interests of the Child ABCsBest Interests of the Child ABCs

I. The Children We Are Worried About – The I. The Children We Are Worried About – The Doctrine of Parens PatriaeDoctrine of Parens Patriae

•In 2004, 68% of 73 million children between 0-In 2004, 68% of 73 million children between 0-17 lived with married parents (e.g., 33.36 17 lived with married parents (e.g., 33.36 million did not).million did not).•In 2004, an estimated 35.7% of the children In 2004, an estimated 35.7% of the children born in the US were born to unmarried women.born in the US were born to unmarried women.•In 2003, 53.2% of children born to women In 2003, 53.2% of children born to women aged 20 to 24 and 26.4% of children born to aged 20 to 24 and 26.4% of children born to women ages 25 to 29 were born to unmarried women ages 25 to 29 were born to unmarried parents.parents.•52% of marriages reach their 1552% of marriages reach their 15thth anniversary anniversary (1997).(1997).


II. “Best Interests of the Child” Standard in II. “Best Interests of the Child” Standard in Kansas.Kansas.

* Kansas was one of the first states to develop * Kansas was one of the first states to develop the “best interests standard” with cases the “best interests standard” with cases from 1881.from 1881.

* Kansas law on a court’s determination of * Kansas law on a court’s determination of child custody is clear. K.S.A. 1999 Supp. child custody is clear. K.S.A. 1999 Supp. 60-1610(a)(3) requires a court to 60-1610(a)(3) requires a court to determine custody or residency of a child determine custody or residency of a child in accordance with the best interests in accordance with the best interests of the childof the child..

* The paramount question for determination of * The paramount question for determination of custody as between the parents is what custody as between the parents is what best serves the interests and welfare of the best serves the interests and welfare of the children. children. All other issues are All other issues are subordinate thereto.subordinate thereto. See See Simmons v. Simmons v. SimmonsSimmons, 223 Kan. 639, 642, 576, P.2d 589 , 223 Kan. 639, 642, 576, P.2d 589 (1978). …(1978). …


II. The “Best Interests of the Child” Task II. The “Best Interests of the Child” Task & Objective& Objective

““The The ‘Best Interests of the Child’‘Best Interests of the Child’ Concept must be understood as a Concept must be understood as a different kind of legal principle that different kind of legal principle that defines both a task and an objective. It defines both a task and an objective. It ‘provides a purpose or objective [while] it ‘provides a purpose or objective [while] it leaves a decision maker leaves a decision maker the task of the task of figuring out how to achieve that figuring out how to achieve that ‘objective’ in each individual case‘objective’ in each individual case.” .”

Mnookin, 1975, p. 231.Mnookin, 1975, p. 231.

Best Interests of the Child ABCsBest Interests of the Child ABCsII.II. The “Best Interests of the Child” as The “Best Interests of the Child” as

an “Adjective.”an “Adjective.”

* “Best Interests of the Child” * “Best Interests of the Child” Standard & Criteria.Standard & Criteria.

* “Best Interests of the Child” Goals * “Best Interests of the Child” Goals or Objectives.or Objectives.

* “Best Interests of the Child” Tasks.* “Best Interests of the Child” Tasks.

* “Best Interests of the Child” * “Best Interests of the Child” Advocacy Positions or Advocacy Positions or “Presumptions.”“Presumptions.”


II. The Best Interests of the Child II. The Best Interests of the Child StandardStandard

The BIOC criteria are often described as The BIOC criteria are often described as “unweighted, unprioritized factors that “unweighted, unprioritized factors that are indeterminate” (Mnookin, 1975), that are indeterminate” (Mnookin, 1975), that lack consensus operational definition lack consensus operational definition (Gould, 1998), that fuel conflict because (Gould, 1998), that fuel conflict because of their unpredictable application of their unpredictable application (American Law Institute, 2002), and that (American Law Institute, 2002), and that leave judges to make decisions based on leave judges to make decisions based on their personal experiences and beliefs their personal experiences and beliefs (Kelly, 1997).(Kelly, 1997).


III. The Best Interests of the Child Standard is III. The Best Interests of the Child Standard is an Individualized Determination that can be an Individualized Determination that can be negotiated “in the shadow of the law.”negotiated “in the shadow of the law.”

““The Best Interests of the Child standard The Best Interests of the Child standard represents a willingness on the part of the represents a willingness on the part of the court and the law to consider children on a court and the law to consider children on a case-by-case basis rather than adjudicating case-by-case basis rather than adjudicating children as a class or a homogenous group with children as a class or a homogenous group with identical needs and situations.” identical needs and situations.”

Kelly, Joan, 1997.Kelly, Joan, 1997.

Best Interests of the Child ABCsBest Interests of the Child ABCsAnxieties, Benefits, & Costs: ALI Anxieties, Benefits, & Costs: ALI

“Competing Concerns”“Competing Concerns”

1.1. Predictability versus Individualized Predictability versus Individualized Decision—Making.Decision—Making.

2.2. Finality versus Flexibility.Finality versus Flexibility.

3.3. Judicial Supervision versus Private Judicial Supervision versus Private Ordering.Ordering.

4.4. Biological versus de Facto Parenting.Biological versus de Facto Parenting.

5.5. Protection (of the child) versus Privacy Protection (of the child) versus Privacy (of parents).(of parents).


Functions of The “Best Interests of the Child” Functions of The “Best Interests of the Child” Standard (as opposed to standards for Standard (as opposed to standards for evidence):evidence):

• Truth: accuracy in decision-making.Truth: accuracy in decision-making.• Fairness: a set of rules to provide an Fairness: a set of rules to provide an

unbiased approach to resolving disputes.unbiased approach to resolving disputes.• Efficiency: there will be limits on the time Efficiency: there will be limits on the time

or money that can be allocated to achieve or money that can be allocated to achieve a just, fair, or truthful result.a just, fair, or truthful result.

• Justice: as a goal is typically ascribed to Justice: as a goal is typically ascribed to the system level of analysis – does not the system level of analysis – does not occur in every case.occur in every case.

(From Sales, B.D. & Shuman, D.W. (2005). (From Sales, B.D. & Shuman, D.W. (2005). Experts in court: Reconciling Experts in court: Reconciling law, science, and professional knowledgelaw, science, and professional knowledge, Washington, D.C.: , Washington, D.C.: American Psychological Association.)American Psychological Association.)


III. The Best Interests of the Child Standard III. The Best Interests of the Child Standard PresumptionsPresumptions

BIOC replaced “More Predictable” BIOC replaced “More Predictable” Presumptions Regarding Custody:Presumptions Regarding Custody:

•Children as father’s property (historical Children as father’s property (historical common law view).common law view).•Maternal “presumption” of custody Maternal “presumption” of custody (Psychoanalytic Theory).(Psychoanalytic Theory).•““Tender Years” Doctrine (Psychoanalytic & Tender Years” Doctrine (Psychoanalytic & Attachment Theory).Attachment Theory).•““Psychological Parent” Doctrine Psychological Parent” Doctrine (Psychoanalytic & Attachment Theory).(Psychoanalytic & Attachment Theory).•““Least Detrimental” Alternative Least Detrimental” Alternative (Psychoanalytic Theory).(Psychoanalytic Theory).•““Innocent” parent – in fault-based divorces.Innocent” parent – in fault-based divorces.


IV. Rationale for the Parental Agreement IV. Rationale for the Parental Agreement PresumptionPresumption

* * • Parents know what is best for their children and, if Parents know what is best for their children and, if

they participate in the development of the they participate in the development of the Parenting Plan, they are more likely to follow it Parenting Plan, they are more likely to follow it and, when necessary, to flexibly adapt it. Besides, and, when necessary, to flexibly adapt it. Besides, parents were dissatisfied with the legal system parents were dissatisfied with the legal system and its adversarial process.and its adversarial process.

• Most parents found it “impersonal, intimidating, Most parents found it “impersonal, intimidating, and intrusive” (Pruett & Jackson, 1999, in Elrod, and intrusive” (Pruett & Jackson, 1999, in Elrod, 2001).2001).

• As “too confrontational” and pitting parents as As “too confrontational” and pitting parents as “adversaries” when they had many common “adversaries” when they had many common interests, namely the children (Oregon Task Force interests, namely the children (Oregon Task Force cited in Elrod, 2001). cited in Elrod, 2001).

• Too often becomes a dual over the relative merits Too often becomes a dual over the relative merits of competing parents.of competing parents.

• Indeed, anywhere from two-thirds to three-Indeed, anywhere from two-thirds to three-fourths of parents reach voluntary custody fourths of parents reach voluntary custody and access agreements outside of court and access agreements outside of court (Kelly, 2002).(Kelly, 2002).


V. V. When the Parents Cannot Agree the Role of the When the Parents Cannot Agree the Role of the Court Changes.Court Changes.

• About one fourth to one third of divorcing couples About one fourth to one third of divorcing couples report high degrees of hostility and discord over report high degrees of hostility and discord over the daily care of their children many years after the daily care of their children many years after separation and well beyond the expectable time separation and well beyond the expectable time for them to settle their differences.for them to settle their differences.

• These cases that attorneys have failed to These cases that attorneys have failed to negotiate, that mediators have failed to settle, negotiate, that mediators have failed to settle, and that counselors and therapists have failed to and that counselors and therapists have failed to help are referred by courts to progressively more help are referred by courts to progressively more intrusive (and coercive) interventions that wed intrusive (and coercive) interventions that wed mental health interventions to social control mental health interventions to social control mechanisms of the court – such as therapeutic mechanisms of the court – such as therapeutic interventions, custody evaluations, on-going interventions, custody evaluations, on-going parent counseling, arbitration, parent parent counseling, arbitration, parent coordination, case managers, special masters, coordination, case managers, special masters, and various kinds of supervised access and and various kinds of supervised access and visitation plans.visitation plans.

Best Interests of the Child ABCsBest Interests of the Child ABCsV. Evolving Role of the Court from “Fault Finder” to V. Evolving Role of the Court from “Fault Finder” to

“Conflict Manager” to “Differential Case “Conflict Manager” to “Differential Case Manager” (Schepard, 2000).Manager” (Schepard, 2000).

• How can this fractured family coordinate its How can this fractured family coordinate its resources and care for the children after the resources and care for the children after the parents’ separation?parents’ separation?

• How can we protect, reconstitute, and restore the How can we protect, reconstitute, and restore the positive parts of parent-child and family positive parts of parent-child and family relationships whenever possible?relationships whenever possible?

• How can these parents make ongoing cooperative How can these parents make ongoing cooperative decisions throughout their children’s growing-up decisions throughout their children’s growing-up years?years?

• What help will these parents need from the What help will these parents need from the community to raise their children?community to raise their children?

(Roseby, 1995).(Roseby, 1995).


Parental Conflict/Divorce Impasse QuestionsParental Conflict/Divorce Impasse Questions

• How can one best understand the parents’ inability How can one best understand the parents’ inability to resolve this dispute (e.g., divorce transition to resolve this dispute (e.g., divorce transition impasse) without the assistance of the Court and this impasse) without the assistance of the Court and this evaluator? evaluator? • What relationship (interpersonal/interactional), What relationship (interpersonal/interactional), personality (psychological/intrapsychic), and systems personality (psychological/intrapsychic), and systems (external) dynamics account for the parents’ failure to (external) dynamics account for the parents’ failure to resolve this without this evaluation? resolve this without this evaluation? • What are the parents’ motivational and What are the parents’ motivational and characterological capabilities for settling the dispute?characterological capabilities for settling the dispute?

Johnston, J. & Campbell, L. (1988). Johnston, J. & Campbell, L. (1988). Impasses of divorce: Impasses of divorce: The dynamics and resolution of family conflictThe dynamics and resolution of family conflict. New . New York: Free Press.York: Free Press.

Best Interests of the Child ABCsBest Interests of the Child ABCsVI. K.S.A. 60-1610(a)(3): VI. K.S.A. 60-1610(a)(3): Child custody or residency Child custody or residency criteria.criteria. The court shall determine custody or residency of The court shall determine custody or residency of a child in accordance with the best interests of the child. a child in accordance with the best interests of the child.

(A) If the parties have entered into a parenting plan, it (A) If the parties have entered into a parenting plan, it shall be presumed that the agreement is in the best shall be presumed that the agreement is in the best interests of the child. This presumption may be overcome interests of the child. This presumption may be overcome and the court may make a different order if the court and the court may make a different order if the court makes specific findings of fact stating why the agreed makes specific findings of fact stating why the agreed parenting plan is not in the best interests of the child. parenting plan is not in the best interests of the child. (B) In determining the issue of child custody, residency (B) In determining the issue of child custody, residency and parenting time, the court shall consider all relevant and parenting time, the court shall consider all relevant factors, including but not limited to: factors, including but not limited to:

(i) The length of time that the child has been under the (i) The length of time that the child has been under the actual care and control of any person other than a parent actual care and control of any person other than a parent and the circumstances relating thereto; and the circumstances relating thereto; (ii) the desires of the child's parents as to custody or (ii) the desires of the child's parents as to custody or residency; residency; (iii) the desires of the child as to the child's custody or (iii) the desires of the child as to the child's custody or residency; residency; (iv) the interaction and interrelationship of the child with (iv) the interaction and interrelationship of the child with parents, siblings and any other person who may parents, siblings and any other person who may significantly affect the child's best interests; significantly affect the child's best interests; (v) the child's adjustment to the child's home, school and (v) the child's adjustment to the child's home, school and community; community;

Best Interests of the Child ABCsBest Interests of the Child ABCs(vi) the willingness and ability of each parent to respect (vi) the willingness and ability of each parent to respect and appreciate the bond between the child and the other and appreciate the bond between the child and the other parent and to allow for a continuing relationship between parent and to allow for a continuing relationship between the child and the other parent;the child and the other parent;

(vii) evidence of spousal abuse;(vii) evidence of spousal abuse;

(viii) whether a parent is subject to the registration (viii) whether a parent is subject to the registration requirements of the Kansas offender registration act, requirements of the Kansas offender registration act, K.S.A. 22-4901, et seq., and amendments thereto, or any K.S.A. 22-4901, et seq., and amendments thereto, or any similar act in any other state, or under military or federal similar act in any other state, or under military or federal law;law;

(ix) whether a parent has been convicted of abuse of a (ix) whether a parent has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto;child, K.S.A. 21-3609, and amendments thereto;

(x) whether a parent is residing with an individual who is (x) whether a parent is residing with an individual who is subject to registration requirements of the Kansas subject to registration requirements of the Kansas offender registration act, K.S.A. 22-4901, et seq., and offender registration act, K.S.A. 22-4901, et seq., and amendments thereto, or any similar act in any other amendments thereto, or any similar act in any other state, or under military or federal law; and state, or under military or federal law; and

(xi) whether a parent is residing with an individual who (xi) whether a parent is residing with an individual who has been convicted of abuse of a child, K.S.A. 21-3609, has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto.and amendments thereto.

Best Interests of the Child ABCsBest Interests of the Child ABCs(i) The length of time that the child has been under (i) The length of time that the child has been under

the actual care and control of any person other the actual care and control of any person other than a parent and the circumstances relating than a parent and the circumstances relating thereto;thereto;

• Third party custody issue.Third party custody issue.

• Directly relates to wishes to provide stability and Directly relates to wishes to provide stability and continuity to child.continuity to child.

• Alert to Child in Need of Care Proceedings and the Alert to Child in Need of Care Proceedings and the reasons for them.reasons for them.

Best Interests of the Child ABCsBest Interests of the Child ABCs Table 3. How psychologists rank relevant psychological and legal Table 3. How psychologists rank relevant psychological and legal

factors in child custody evaluationsfactors in child custody evaluations

1. Sexual abuse of the child by a parent.1. Sexual abuse of the child by a parent.

2. Physical abuse of the child by a parent.2. Physical abuse of the child by a parent.

3. Child’s views and preferences when a child is 15 or older.3. Child’s views and preferences when a child is 15 or older.

4. The emotional needs of the child.4. The emotional needs of the child.

5. Each parent’s ability to understand his or her child’s needs 5. Each parent’s ability to understand his or her child’s needs and separate them from his or her own needs.and separate them from his or her own needs.

6. Each parent’s ability to provide a safe physical 6. Each parent’s ability to provide a safe physical environment for child.environment for child.

7. Overall quality of each parent’s relationship with the child.7. Overall quality of each parent’s relationship with the child.

8. Child’s view and preferences when the child is 12 to 14 8. Child’s view and preferences when the child is 12 to 14 years old.years old.

9. Physical violence in the parents’ relationship.9. Physical violence in the parents’ relationship.

10. Each parent’s current alcohol or drug use.10. Each parent’s current alcohol or drug use.

11. Each parent’s psychological adjustment.11. Each parent’s psychological adjustment.

12. Each parent’s ability to accommodate to child’s health 12. Each parent’s ability to accommodate to child’s health needs.needs.

Best Interests of the Child ABCsBest Interests of the Child ABCs(ii) the desires of the child's parents as to custody or (ii) the desires of the child's parents as to custody or residency; residency;

•Statement of Facts Questions in Child Custody Statement of Facts Questions in Child Custody ProceedingsProceedings

•What custody and parenting time plan does each What custody and parenting time plan does each parent propose?parent propose?•Why does each parent believe their plan is better for Why does each parent believe their plan is better for the children than that proposed by the other parent?the children than that proposed by the other parent?•What facts does each parent wish to report, What facts does each parent wish to report, demonstrate, and/or prove, or have believed, in order demonstrate, and/or prove, or have believed, in order to justify and support their proposed custody and to justify and support their proposed custody and parenting time proposal as best for the children?parenting time proposal as best for the children?

•Presumptive Question on this factor: Do parents know Presumptive Question on this factor: Do parents know how to develop parenting plans? how to develop parenting plans? This is the This is the justification for Parent Education Programsjustification for Parent Education Programs..

Best Interests of the Child ABCsBest Interests of the Child ABCs(iii) the desires of the child as to the child’s custody (iii) the desires of the child as to the child’s custody

and residency;and residency;

• Empowerment Rationale.Empowerment Rationale.

• Enlightenment Rationale.Enlightenment Rationale.

• At what age should a child’s desires be heard?At what age should a child’s desires be heard?

• What weight should a child’s preferences be What weight should a child’s preferences be given?given?

• At what age should a child “decide” for At what age should a child “decide” for him/herself?him/herself?

• Triangulation and Alienation of the Child.Triangulation and Alienation of the Child.


Children’s Preferences – Children’s Preferences – PayoffsPayoffs and Pitfalls: “ and Pitfalls: “IdealsIdeals””

•EmpowermentEmpowerment” rationale: “children profit by ” rationale: “children profit by participating in decisions that affect central aspects of participating in decisions that affect central aspects of their lives” (Warshak, 2003, p. 374).their lives” (Warshak, 2003, p. 374).

•““Youngsters whose lives were governed by court Youngsters whose lives were governed by court orders or parental agreements were distressed that orders or parental agreements were distressed that they had lost the freedom that their peers take for they had lost the freedom that their peers take for granted. They opined that they had less to say, less granted. They opined that they had less to say, less control over their schedules, less power to determine control over their schedules, less power to determine when or where they would spend their time, especially when or where they would spend their time, especially their precious vacations. … [The court-created child] is their precious vacations. … [The court-created child] is given no formal opportunity to express her views or given no formal opportunity to express her views or even a preference among plans (Wallerstein & Lewis, even a preference among plans (Wallerstein & Lewis, 1997, p. 381-382).1997, p. 381-382).


Children’s Preferences – Children’s Preferences – PayoffsPayoffs and Pitfalls: and Pitfalls:

•“… “… the court should be responsive to the child’s voice, the court should be responsive to the child’s voice, amplifying it above the din of competing parents. Only amplifying it above the din of competing parents. Only in this way can it ascertain and respect ‘the best in this way can it ascertain and respect ‘the best interest of the child’” (Wallerstein & Tanke, 1996, p. interest of the child’” (Wallerstein & Tanke, 1996, p. 323).323).

•““EnlightenmentEnlightenment” rationale: “children have ” rationale: “children have something important to tell us that may change the something important to tell us that may change the decisions we make on their behalf and the way in decisions we make on their behalf and the way in which we make them. … does not necessarily mean which we make them. … does not necessarily mean that their stated preferences determine the final that their stated preferences determine the final outcomes. … Yet sensitive parents faced with such outcomes. … Yet sensitive parents faced with such decisions will consider their children’s needs, may decisions will consider their children’s needs, may elicit their children’s concerns, will try to anticipate elicit their children’s concerns, will try to anticipate their children’s reactions to the proposed changes, and their children’s reactions to the proposed changes, and will keep their children’s perspective in mind when will keep their children’s perspective in mind when dealing with the children regardless of their ultimate dealing with the children regardless of their ultimate decision.” (Warshak, 2003, p. 374). decision.” (Warshak, 2003, p. 374).


Children’s Preferences – Children’s Preferences – PayoffsPayoffs and Pitfalls: “ and Pitfalls: “IdealsIdeals””

PsychologistsPsychologists JudgesJudges Attorneys Mean Attorneys Mean

Average age at whichAverage age at which 15.1015.10 15.1415.14 15.29 15.29 15.17 15.17

child can decide withchild can decide with

which parent to livewhich parent to live

Average age at whichAverage age at which N/AN/A 15.7915.79 16.11 16.11 15.95 15.95

child can decide whetherchild can decide whether

to visit parentto visit parent

Ackerman & Ackerman, 1997;Ackerman & Ackerman, 1997;

Ackerman & Steffan, 2001;Ackerman & Steffan, 2001;

Ackerman & Kelley, 2000;Ackerman & Kelley, 2000; Ackerman, M. et al. (2004). Ackerman, M. et al. (2004). Psychologists’ practices compared Psychologists’ practices compared

to the expectations of family law judges to the expectations of family law judges and attorneys in and attorneys in

child custody cases. 1(1), child custody cases. 1(1), Journal of Child Journal of Child CustodyCustody, 41-60., 41-60.


Children’s Preferences – Children’s Preferences – PayoffsPayoffs and Pitfalls: “ and Pitfalls: “RealitiesRealities””

PsychologistsPsychologists JudgesJudges Attorneys Mean Attorneys MeanCooperation/CommunicationCooperation/Communication 1 1 1 1 1 1 1 1Attachment to BothAttachment to Both 2 2 2 2 2 2 2 2Contact with Both 4 2 2 Contact with Both 4 2 2 3 3Geographic Proximity Geographic Proximity 6 3 3 6 3 3

4 4Psychologically Healthy 3 5 6 Psychologically Healthy 3 5 6 5 5Desire of Parents 5 4 5 Desire of Parents 5 4 5 5 5Child’s Choice 7 6 Child’s Choice 7 6 4 7 4 7

Ackerman & Ackerman, 1997;Ackerman & Ackerman, 1997;Ackerman & Steffan, 2001;Ackerman & Steffan, 2001;Ackerman & Kelley, 2000;Ackerman & Kelley, 2000; Ackerman, M. et al. (2004). Ackerman, M. et al. (2004). Psychologists’ practices compared Psychologists’ practices compared

to the expectations of family law judges to the expectations of family law judges and attorneys in and attorneys in

child custody cases. 1(1), child custody cases. 1(1), Journal of Child Journal of Child CustodyCustody, 41-60., 41-60.


Children’s Preferences – Children’s Preferences – PayoffsPayoffs and Pitfalls: “ and Pitfalls: “RealitiesRealities””

Mean Rating of Importance of Each Item and Related Factor Mean Rating of Importance of Each Item and Related Factor LoadingsLoadings

MeanMean Standard DeviationStandard DeviationChild’s Preferences regarding custody when:Child’s Preferences regarding custody when: Child is 15 years old or olderChild is 15 years old or older 6.196.19 1.061.06 Child is 12 to 14 years oldChild is 12 to 14 years old 5.975.97 0.940.94 Child is 9 to 11 years oldChild is 9 to 11 years old 5.465.46 1.161.16 Child is 6 to 8 years oldChild is 6 to 8 years old 5.005.00 1.171.17 Child is 0 to 5 years oldChild is 0 to 5 years old 4.404.40 1.331.33Child’s fears about current family situationChild’s fears about current family situation 5.515.511.121.12Child’s perception of relationship with familyChild’s perception of relationship with family 5.365.361.021.02Child’s desire to see extended familyChild’s desire to see extended family 4.904.90 0.970.97Child’s desire to see his or her friendsChild’s desire to see his or her friends 4.424.42 1.101.10

Jamison, B.J., Ehrenberg, M.F., Hunter, M.A. Jamison, B.J., Ehrenberg, M.F., Hunter, M.A. (1997). (1997). Psychologists’ ratings of the best- Psychologists’ ratings of the best-interests-of-the-child interests-of-the-child custody and custody and access criterion: A family systems assessment access criterion: A family systems assessment model. 28(3), model. 28(3), Professional Psychology, Research and PracticeProfessional Psychology, Research and Practice, ,

253-262. 253-262.


Children’s Preferences – Payoffs and Children’s Preferences – Payoffs and PitfallsPitfalls: : “Realities”“Realities”

Dangers of the Enlightenment and Dangers of the Enlightenment and Empowerment RationalesEmpowerment Rationales

*Children’s attitudes are often temporary, transient, or *Children’s attitudes are often temporary, transient, or fluctuating (Wallerstein & Kelly, 1980).fluctuating (Wallerstein & Kelly, 1980).

*Children’s preferences may also be influenced by: *Children’s preferences may also be influenced by:

(1) coaching or alienating activities (Gardner, (1) coaching or alienating activities (Gardner, 1998; Kelly & Johnston, 1998; Kelly & Johnston, 2001); 2001);

(2) perceived needs to be responsible and care (2) perceived needs to be responsible and care for a needy parent for a needy parent (Hetherington & Kelly, 2002); (Hetherington & Kelly, 2002); or, or,

(3) counter-phobic alignments with parents they (3) counter-phobic alignments with parents they are afraid of are afraid of displeasing (Clawar & Rivlin, 1991; displeasing (Clawar & Rivlin, 1991; Gardner, 1998).Gardner, 1998).

Best Interests of the Child ABCsBest Interests of the Child ABCsChildren’s Preferences – Payoffs and Children’s Preferences – Payoffs and PitfallsPitfalls: : “Realities”“Realities”

Dangers of the Enlightenment & Dangers of the Enlightenment & Empowerment Rationales:Empowerment Rationales:

*Giving children’s preferences substantial *Giving children’s preferences substantial weight in the decision may overburden them weight in the decision may overburden them with an inappropriate degree of power, with an inappropriate degree of power, inadvertently place them in the middle of the inadvertently place them in the middle of the parents’ dispute, and increase their risk for parents’ dispute, and increase their risk for being manipulated or pressured by parents” being manipulated or pressured by parents” (Warshak, 2003).(Warshak, 2003).

*Children do not always know what is best for *Children do not always know what is best for them, they often tell both parents what they them, they often tell both parents what they think that parent wants to hear (Garrity & think that parent wants to hear (Garrity & Baris, 1994).Baris, 1994).

Best Interests of the Child ABCsBest Interests of the Child ABCs(iv) The interaction and interrelationship of the child (iv) The interaction and interrelationship of the child with parents, siblings, and any other person who may with parents, siblings, and any other person who may significantly affect the child’s best interests;significantly affect the child’s best interests;

•The ALI Principles & the Approximation Rule:The ALI Principles & the Approximation Rule:

•“ … “ … the court should allocate custodial responsibility the court should allocate custodial responsibility so that the proportion of custodial time the child so that the proportion of custodial time the child spends with each parent approximates the proportion spends with each parent approximates the proportion of time each parent spent performing caretaking of time each parent spent performing caretaking functions for the child prior to the child’s separation … functions for the child prior to the child’s separation … except to the extent required to achieve one or more” except to the extent required to achieve one or more” of 8 objectives.of 8 objectives.

Best Interests of the Child ABCsBest Interests of the Child ABCsEvaluating Approximation Rule (Elrod, 2004).Evaluating Approximation Rule (Elrod, 2004).

Pro: Pro: •It rewards past caretaking (which might presumably It rewards past caretaking (which might presumably encourage a non-involved parent to be more involved).encourage a non-involved parent to be more involved).

•It might be yield a more predictable outcome in court It might be yield a more predictable outcome in court (more predictable to child and to parents).(more predictable to child and to parents).

•Is an objective standard. Is an objective standard.

•Makes custody and parenting plan a fact-based Makes custody and parenting plan a fact-based determination. It would require only an investigation to determination. It would require only an investigation to determine something that has already happened as determine something that has already happened as opposed to attempting to predict.opposed to attempting to predict.

Best Interests of the Child ABCsBest Interests of the Child ABCsEvaluating Approximation Rule: ConEvaluating Approximation Rule: Con

•Assumes amount of care pre-divorce equals quality of Assumes amount of care pre-divorce equals quality of care, to parenting ties to the child, and/or to parenting care, to parenting ties to the child, and/or to parenting competence. Does not allow for sufficient competence. Does not allow for sufficient consideration of “divorce activated” parenting. consideration of “divorce activated” parenting.

•Inconsistent with attachment research regarding Inconsistent with attachment research regarding multiple important attachments.multiple important attachments.

•Decreases the idea of a partnership marriage and Decreases the idea of a partnership marriage and locks people into pre-divorce roles.locks people into pre-divorce roles.

•Does not provide for child’s preferences.Does not provide for child’s preferences.

•Has elements of primary caretaker and other past Has elements of primary caretaker and other past assumptions.assumptions.

Best Interests of the Child ABCsBest Interests of the Child ABCs(v) the child’s adjustment to the child’s home, school (v) the child’s adjustment to the child’s home, school

and community;and community;

• Children can be better off if parents divorce.Children can be better off if parents divorce.

• Divorce is painful and the children are at risk.Divorce is painful and the children are at risk.

• Powerful predictors of child’s adjustment: parental Powerful predictors of child’s adjustment: parental conflict and opportunities for access and positive conflict and opportunities for access and positive relationships with both parents.relationships with both parents.

Best Interests of the Child ABCsBest Interests of the Child ABCsChildren’s adjustment following divorce reflects factors Children’s adjustment following divorce reflects factors other than the divorce itself.other than the divorce itself.

•There are differences in the average psychological There are differences in the average psychological well-being of children from happy marriages, it is also well-being of children from happy marriages, it is also true that true that the majority of children from divorced the majority of children from divorced families are emotionally well-adjustedfamilies are emotionally well-adjusted (Amato, (Amato, 1994; Hetherington, 1999; in Kelly & Emery, 2003).1994; Hetherington, 1999; in Kelly & Emery, 2003).

•Divorce as a catastrophe for children evolved Divorce as a catastrophe for children evolved into a view that children are better off if into a view that children are better off if unhappy people divorce (Scott, 2002). unhappy people divorce (Scott, 2002).

•Children’s painful memories & experiences must be Children’s painful memories & experiences must be distinguished from presence of pathology (Kelly & distinguished from presence of pathology (Kelly & Emery, 2003).Emery, 2003).

•Divorce, in essence, places children at risk but Divorce, in essence, places children at risk but does not doom them to eternal failure and does not doom them to eternal failure and anguish (Schepard, 2004).anguish (Schepard, 2004).

Best Interests of the Child ABCsBest Interests of the Child ABCsChildren’s adjustment following divorce reflects factors Children’s adjustment following divorce reflects factors

other than the divorce itself. other than the divorce itself. (“Divorce is not (“Divorce is not the culprit.”)the culprit.”)

• Children’s behavioral symptoms and academic Children’s behavioral symptoms and academic problems could be identified years before the problems could be identified years before the divorce and that divorce and that parental conflict and access to parental conflict and access to positive and significant relationships with positive and significant relationships with both parents were powerful predictors of the both parents were powerful predictors of the adjustments of children of divorce.adjustments of children of divorce.

• Factors affecting children’s post-divorce Factors affecting children’s post-divorce adjustment: adjustment: * * individual child vulnerabilities, change in individual child vulnerabilities, change in family composition and family composition and father absence, father absence, increased increased economic stress and problems shifting economic stress and problems shifting from from two-parent to one-parent household, effects two-parent to one-parent household, effects of parental distress on of parental distress on child, and changes in child, and changes in family expressions of conflict and emotion family expressions of conflict and emotion (Hetherington, Bridges, & Insabella, 1998); loss of (Hetherington, Bridges, & Insabella, 1998); loss of a parent, a parent, interparental conflict, and diminished interparental conflict, and diminished parenting (Buchanan, Maccoby,parenting (Buchanan, Maccoby, & Dornbush, & Dornbush, 1996). 1996).

Best Interests of the Child ABCsBest Interests of the Child ABCs((vi) the willingness and ability of each parent to vi) the willingness and ability of each parent to respect and appreciate the bond between the child and respect and appreciate the bond between the child and the other parent and to allow for a continuing the other parent and to allow for a continuing relationship between the child and the other parent;relationship between the child and the other parent;

• Rationale & empirical support for Joint Custody.Rationale & empirical support for Joint Custody.

• The “Friendly Parent” provision, Impact of Parental The “Friendly Parent” provision, Impact of Parental Conflict on Children, Parental Alienation, and the Conflict on Children, Parental Alienation, and the Alienated Child.Alienated Child.


““Joint custody symbolizes both the gender and Joint custody symbolizes both the gender and emotional equality of the parents for the child. The emotional equality of the parents for the child. The court begins with a premise that both parents care court begins with a premise that both parents care about their child, and that the child benefits from having about their child, and that the child benefits from having a relationship with both of them” (Schepard, 2004, p. a relationship with both of them” (Schepard, 2004, p. 45).45).

“… “… the issue is almost never “Is one parent more fit the issue is almost never “Is one parent more fit than the other and therefore should that parent have than the other and therefore should that parent have sole custody? … The relative fitness of the parents is not sole custody? … The relative fitness of the parents is not the issue to be determined by the court. The parents’ the issue to be determined by the court. The parents’ roles in their child’s upbringing, including decision-roles in their child’s upbringing, including decision-making, division of time, and allocation of making, division of time, and allocation of responsibilities, are determined based upon what is in responsibilities, are determined based upon what is in the child’s best interests … Termination of a parent’s the child’s best interests … Termination of a parent’s meaningful participation and involvement in the child’s meaningful participation and involvement in the child’s life is unwarranted in the vast majority of cases, since life is unwarranted in the vast majority of cases, since utter unfitness or incompetency to parent is rarely utter unfitness or incompetency to parent is rarely extant (Connell, 2005).”extant (Connell, 2005).”

Best Interests of the Child ABCsBest Interests of the Child ABCs““Joint custody: good, but not the panacea.”Joint custody: good, but not the panacea.”

Bauserman, R. (2002). Child adjustment in joint-custody Bauserman, R. (2002). Child adjustment in joint-custody versus sole-custody arrangements: A meta-analytic versus sole-custody arrangements: A meta-analytic review. 16(1), review. 16(1), Journal of Family PsychologyJournal of Family Psychology, 91-102., 91-102.

““Children in joint physical or legal custody were better Children in joint physical or legal custody were better adjusted than children in sole-custody settings, but no adjusted than children in sole-custody settings, but no different from those in intact families. More positive different from those in intact families. More positive adjustment of joint-custody children held for separate adjustment of joint-custody children held for separate comparisons of general adjustment, family relationships, comparisons of general adjustment, family relationships, self-esteem, emotional and behavioral adjustment, and self-esteem, emotional and behavioral adjustment, and divorce-specific adjustment. Joint-custody parents divorce-specific adjustment. Joint-custody parents reported less current and past conflict than did sole-reported less current and past conflict than did sole-custody parents, but this did not explain the better custody parents, but this did not explain the better adjustment of joint-custody children. The results are adjustment of joint-custody children. The results are consistent with the hypothesis that joint custody can be consistent with the hypothesis that joint custody can be advantageous for children in some cases possibly by advantageous for children in some cases possibly by facilitating ongoing positive involvement with both facilitating ongoing positive involvement with both parents.”parents.”


*Implementation of the “joint custody” concept has *Implementation of the “joint custody” concept has varied:varied:

- Distinctions between “legal custody” & - Distinctions between “legal custody” & “physical” or “residential.”“physical” or “residential.”

- Frequent awards of “joint legal custody” with a - Frequent awards of “joint legal custody” with a “primary residence.”“primary residence.”

- Joint equals “shared residency,” only with special - Joint equals “shared residency,” only with special provisions (parents’ provisions (parents’ agree, etc.). KS: Special Child agree, etc.). KS: Special Child Support implications.Support implications.

- Presumptions (CA before, FL now) & Preferences.- Presumptions (CA before, FL now) & Preferences.

* The term “custody” makes parents think in the * The term “custody” makes parents think in the language of criminal law and property. It projects a language of criminal law and property. It projects a negative image of the role of the visiting parent in the negative image of the role of the visiting parent in the lives of children after divorce, thus encouraging parental lives of children after divorce, thus encouraging parental competition and combat. competition and combat. The core idea of the The core idea of the parenting plan, in contrast, is to help parents plan parenting plan, in contrast, is to help parents plan for their mutual involvement in the future lives of for their mutual involvement in the future lives of their child by encouraging them to think in terms their child by encouraging them to think in terms of actual parenting tasks rather than legal labels”of actual parenting tasks rather than legal labels” (Schepard, 2004, p. 49).(Schepard, 2004, p. 49).

Best Interests of the Child ABCsBest Interests of the Child ABCsArguments against Joint CustodyArguments against Joint Custody

• Limitations in the Joint Custody “Evidence” Limitations in the Joint Custody “Evidence” itself (even the meta-analysis revealed only itself (even the meta-analysis revealed only moderately positive findings.moderately positive findings.• There is evidence connecting child’s There is evidence connecting child’s adjustment to psychological health of primary adjustment to psychological health of primary custodial parent (Hetherington).custodial parent (Hetherington).• Evidence limiting positive impact of fathers Evidence limiting positive impact of fathers to those fathers who exhibit “authoritative to those fathers who exhibit “authoritative parenting” (high on warmth and high on parenting” (high on warmth and high on control).control).• Questions about whether the noncustodial Questions about whether the noncustodial parent is “essential.”parent is “essential.”


Impact of Parental Conflict on Children.Impact of Parental Conflict on Children.

•20-25% of children experience high conflict during 20-25% of children experience high conflict during their parents’ marriage (Booth Amato, 2001; their parents’ marriage (Booth Amato, 2001; Hetherington, 2001).Hetherington, 2001).•Although often assumed, pre-divorce high conflict Although often assumed, pre-divorce high conflict does not perfectly predict post-divorce conflict (Booth does not perfectly predict post-divorce conflict (Booth & Amato, 2001).& Amato, 2001).•Some couples reduce their conflict once separated or Some couples reduce their conflict once separated or divorced – “divorce works” for some.divorced – “divorce works” for some.•When parents continued to have conflict but When parents continued to have conflict but encapsulated their conflict and did not put their encapsulated their conflict and did not put their children in the middle, their children did not differ from children in the middle, their children did not differ from children whose parents had low or no conflict children whose parents had low or no conflict (Buchanan et al; Hetherington, 1999).(Buchanan et al; Hetherington, 1999).•This review relies heavily on: Kelly, J.B. & Emery, R. E. (2001). Children’s adjustment This review relies heavily on: Kelly, J.B. & Emery, R. E. (2001). Children’s adjustment following divorce: Risk and resilience perspectives. 52, following divorce: Risk and resilience perspectives. 52, Family RelationsFamily Relations, 352- 362., 352- 362.



•““Better for kids if parents divorce.”Better for kids if parents divorce.” The The association between marital conflict and children’s association between marital conflict and children’s poor adjustment is robust. Marital conflict is a more poor adjustment is robust. Marital conflict is a more potent predictor of post-divorce adjustment than post-potent predictor of post-divorce adjustment than post-divorce conflict (Booth & Amato, 2001; Kline, Johnston, divorce conflict (Booth & Amato, 2001; Kline, Johnston, Tschann, 1990).Tschann, 1990).

•Research on impact of post-divorce conflict and Research on impact of post-divorce conflict and children’s adjustment is more mixed and less straight-children’s adjustment is more mixed and less straight-forward.forward.

•Post-divorce conflict had more adverse effects that did Post-divorce conflict had more adverse effects that did conflict in married families (Hetherington, 1999).conflict in married families (Hetherington, 1999).



•High conflict is more likely to be destructive post-High conflict is more likely to be destructive post-divorce when parents use their children to express divorce when parents use their children to express their anger and are verbally and physically aggressive their anger and are verbally and physically aggressive on the phone or in person (Buchanan et al, 1991; on the phone or in person (Buchanan et al, 1991; Johnston, 1994).Johnston, 1994).

•Parents who express their rage toward their former Parents who express their rage toward their former spouse by asking children to carry hostile messages, spouse by asking children to carry hostile messages, by denigrating the other parent in their presence are by denigrating the other parent in their presence are creating intolerable stress and loyalty conflicts in their creating intolerable stress and loyalty conflicts in their children. Such youngsters were more depressed and children. Such youngsters were more depressed and anxious when compared with high conflict parents who anxious when compared with high conflict parents who left their children out of angry exchanges (Buchanan et left their children out of angry exchanges (Buchanan et al.; Hetherington, 1999).al.; Hetherington, 1999).

Best Interests of the Child ABCsBest Interests of the Child ABCsThe Alienated Child or Parental AlienationThe Alienated Child or Parental Alienation

•Gardner, R.A. (2001). The empowerment of children Gardner, R.A. (2001). The empowerment of children in the development of parental alienation syndrome. in the development of parental alienation syndrome. American Journal of Forensic PsychologyAmerican Journal of Forensic Psychology, 20(2), 5-29. (, 20(2), 5-29. (http://www.rgardner.com/refs/ar14.html).).•Kelly, J.B. & Johnston, J.R. (2001). The alienated child: Kelly, J.B. & Johnston, J.R. (2001). The alienated child: A reformulation of parental alienation syndrome. A reformulation of parental alienation syndrome. Family Court ReviewFamily Court Review, 39(3), 249-266., 39(3), 249-266.•Drozd, L.M. & Oleson, N.W. (2004). Is it abuse, Drozd, L.M. & Oleson, N.W. (2004). Is it abuse, alienation, and/or estrangement? A decision tree. alienation, and/or estrangement? A decision tree. Journal of Child Custody: Research, Issues, and Journal of Child Custody: Research, Issues, and Practices,Practices, 1(3), 65-106. 1(3), 65-106.•Sullivan, M.J. & Kelly, J.B. (2001). Legal and Sullivan, M.J. & Kelly, J.B. (2001). Legal and psychological management of cases with an alienated psychological management of cases with an alienated child. child. Family Court ReviewFamily Court Review, 39(3), 299-315., 39(3), 299-315.•Williams, R.J. (2001). Should judges close the gate on Williams, R.J. (2001). Should judges close the gate on PAS and PA? PAS and PA? Family Court ReviewFamily Court Review, 39(3), 267-281., 39(3), 267-281.•In re marriage of CobbIn re marriage of Cobb, K.S. Court of Appeals, 82,458, , K.S. Court of Appeals, 82,458, August 13, 1999.August 13, 1999.•In re marriage of Kimbrell,In re marriage of Kimbrell,

Best Interests of the Child ABCsBest Interests of the Child ABCs(vii) evidence of spousal abuse.(vii) evidence of spousal abuse.

• Co-occurrence of wife(spousal) abuse & child Co-occurrence of wife(spousal) abuse & child abuse.abuse.

(what is it? Estimates vary from 30% to 70%.(what is it? Estimates vary from 30% to 70%.

Lundy Bancroft/Jeffrey Edelson/Peter Jaffe: writer Lundy Bancroft/Jeffrey Edelson/Peter Jaffe: writer researchers.researchers.

• Advocates for victims of domestic violence have Advocates for victims of domestic violence have succeeded in including evidence of past DV in succeeded in including evidence of past DV in child custody determinations, sometimes as a child custody determinations, sometimes as a factor and other times as a presumption. (Bartlett, factor and other times as a presumption. (Bartlett, 2002).2002).

• The Conflict of Neutrality & Assigning The Conflict of Neutrality & Assigning Accountability. Accountability.

Documents

Best Interests of the Child ABC’s: Anxieties, Benefits & Costs