Cheney No Title
| Jurisdiction | Vermont,United States |
| Citation | Vol. 2001 No. 12 |
| Publication year | 2001 |
December 2001. Cheney No Title
Kimberly B. Cheney, Esq.
Critics of joint custody(fn1) argue it serves the needs of the parents but not of the child, and so should be disfavored. The concept of "best interests of the child" has become so talismanic that it has occluded the possibility that if the needs of the parents are not reasonably met, the child's best opportunity for healthy growth is diminished. Many children do not make a good choice of their parents. Their parents may simply be inadequate by any standard. Whether the parents separate or stay together, the prognosis for their offspring is guarded. Court ordered custody decisions are unlikely to improve the child's opportunity for growth. But where parents have reasonable skills, court orders which meet their needs may be the best thing for their child.
The recent Vermont Supreme Court decision in Cloutier v. Blowers raises the question of whether the best interests of the child can ever be severed from the best interests of a loving parent.(fn2) In this complex decision, Justice Skoglund, writing for the majority, reversed a sole custody award to the mother in part because the Family Court gave her custody to avoid the "substantial anguish" she would feel because of the loss of her child, which would "further sour her strained relation-ship with the father."(fn3) Justice Skoglund cited several cases for the proposition that "the focal point of any custody dispute is to reach a . . . disposition that is in the child's, not the parents' best interest."(fn4)
Justice Dooley, in dissent, would have upheld the award, primarily to put an end to the pernicious effect of litigation on the child by validating the trial judges' "use of common sense and common life experience" in making decisions, and also because he read the Family Court's decision to hold that "making the father the primary custodian would have such an effect on the mother that it would destroy her ability to be an effective parent, adversely affecting the child."(fn5)
Surely, if one parent is deeply wounded emotionally by a custody decision the child will be affected. This hard case properly raises the question whether the "best interests" test can ignore the reality that a custody decision that has a substantial negative impact on a parent may also have a substantial adverse impact on the child. A custody decision which leaves one parent deeply dissatisfied will produce conflict and litigation, and may diminish that parent's ability to love the child.
Parental conflict, whether in a nuclear family or a separated one, has long been recognized as detrimental to a child. Anna Freud once told me that a child would be better off if both divorcing parents were dead, rather than live in the middle of a high conflict between the parents.(fn6) She meant that the finality of death permits grieving and rebuilding of the child's personality after loss, whereas lengthy parental conflict involving the child is a persistent harmful condition with pernicious results. This reasoning led to the conclusion in Beyond the Best Interests of the Child that "the non-custodial parent should have no legally enforceable right to visit the child, and the custodial parent should have the right to decide whether it is desirable for the child to have such visits."(fn7) This view did not gain wide acceptance, probably for the very reasons the authors chose to propose it. As they wrote, the best interests standard
in context and as construed . . . has come to mean something less thanwhat is in the child's best interests. The child's interests are often balanced against, and frequently made subordinate to adult interests and rights. . . . [m]any decisions . . . are fashioned primarily to meet the needs and wishes of competing adult claimants . . ."(fn8)
In any event, it is the competing adult claimants who will continue to have the most decisive impact on the life of the child, even after the court has rendered a decision. Even death does not end a parent's influence for good or ill.
In recognition of this fact, Vermont law declares as public policy that it is "in the best interests of the minor child to have the opportunity for maximum continuous physical and emotional contact with both parents, unless direct physical harm or significant emotional harm to the child or a parent is likely to result from such con-tact."(fn9) This provision is found in the pre-amble to the child support statutes, rather than the "custody" statutes, suggesting perhaps that it primarily constitutes a recognition that fathers who are actively involved with their child will pay support which will benefit the entire former family unit.
It is trite and verging on cliché to observe that...
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