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

• DOI: http://doi.org/10.1111/fcre.12084
• Published date: 01 April 2014
• Author: Elizabeth S. Scott
• Date: 01 April 2014

PLANNING FOR CHILDREN AND RESOLVING CUSTODIAL

DISPUTES: A COMMENT ON THE THINK TANK REPORT

Elizabeth S. Scott

This comment praises the report from the AFCC ThinkTank on Research, Policy,Practice, and Shared Parenting for its support

for separating parents’ active role in custody planning, its emphasis on both parents’ involvementin 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 whenparents fail to ag ree on custody plans. I arguethat 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 LawInstitute’s approximation standard is more likely than the best interest standard to further the goals

of the Think Tank report.

Keywords: Approximation Standard;BestInterest Standard;and Custody.

The Think Tank on Research, Policy, Practice, and Shared Parenting convened by theAssociation

of Family and Conciliation Courts is a group of highly respected mental health professionals, social

scientists and legal experts with deep knowledge and experience on issues of how best to promote

children’s welfare when their parents divorceor separate. The report issued by the group is thoughtful,

sensible and clearly reflects careful deliberation and extended discussion of very challenging issues

about which considerable controversy exists in the arenas of both policy and practice. It is impressive

that the group reached consensus on as many issues as it did. In my view, many of the report’s

conclusions are sound: I (and I would hope most informed observers) endorse the report’s preference

for parents’ active role in planning for their children’s future lives in reconstituted families, its

emphasis on the importance of both parents’ involvement in post-dissolution parenting when coop-

eration is possible, and its cautious admonition that exposure to conflict between their parents has a

destructive impact on children. I also admire the report’s sensitive and nuanced treatment of domestic

violence and its recognition that protecting victims is a preeminent concern, but that domestic

violence in the midst of family breakdown may take different forms. For this reason, the question of

the post-dissolution role of alleged perpetrators’ can sometimes be complex. Finally, and not surpris-

ingly, given the members of the Think Tank, the report underscores the impor tance of reliable

information and of social science research in informing policy in the area. At the same time, it

Correspondence: escott@law.columbia.edu

FAMILY COURT REVIEW, Vol. 52 No. 2, April 2014 200–206

© 2014 Association of Familyand Conciliation Cour ts