RECONCILING PARENTS' AND CHILDREN'S INTERESTS IN RELOCATION In Whose Best Interest?

• DOI: http://doi.org/10.1111/j.174-1617.2000.tb00579.x
• Author: Arline S. Rotman,Lita Linzer Schwartz,M. Dee Samuels,Robert Tompkins
• Published date: 01 July 2000
• Date: 01 July 2000

RECONCILING PARENTS’ AND CHILDREN’S

INTERESTS IN RELOCATION

In Whose Best Interest?

Hon. Arline

S.

Rotman, Robert Tompkins,

Lita Linzer Schwartz, and

M.

Dee Samuels

When a family comes before the court, whose interests are really served? Can the court’s repre-

sentatives act in the best interests

of

the children while respecting the rights of parents? When

a

case is sent to acourt-connected evaluator, how does the evaluator balance the tensions and vary-

ing perspectives inherent in

this

work? Within the bounds of advocacy and legalethics, how does

the attorney balance the demands and rights

of

the client whle guiding the parent to consider the

needs of the children?

How

do judges frame the dilemmas before them and consider the work of

theevaluator?This article addressesthesequestions in a multidisciplinary fashion, using a hypo-

thetical case

as

a

guide.

INTRODUCTION

BY

THE JUDGE

Multiple interests and disciplines compete with each other for primacy

when separated parents cannot decide what parenting plan best suits their

family’s needs. The prevailing legal standard in most jurisdictions, “best

interests of the child,” is a legislative determination reflective of collective

public sentiment. Its definition is formed by mental health principles, but

interpreted by the judiciary.

The legal standard for custody determinations has changed over time,

reflecting prevailing social mores. In earlier times, children were

of

eco-

nomic value to the family; on the separation

of

parents, they remained with

the father. After the industrial revolution, men left home to earn money, and

custodial responsibilities were the mothers’, who generally remained at

home with the children. In the first part

of

the 20th century, courts were called

on to decide issues of custody.

The

decisions were based on the tender years

doctrine (a legal term), reflecting the general view that young children should

be with their mothers, who were their primary caretakers, except if

a

mother

was found unfit. Fitness, in legal terms, was associated with morality,

so

a

woman would lose custody if she were found guilty of adultery.

Authors’ Note:

We

thank Philip

M.

Stahl for

his

contributions and for writing the summan,

FAMILY

AND

CONCILIATION

COURTS REVIEW,

VO~.

38

NO.

3,

July

2000

341-367

0

ZOO0

Sage

Publications, Inc.

34

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342

FAMlLY AND CONCILIATION COURTS

REVIEW

In the past few decades, there has been a shift in the family structure,

largely as a consequence of the feminist movement and economic mobility.

There is a recognition of the importance of fathers in children’s lives. With

two parents employed outside the home, whether they are living together or

not, both parents are often involved in supporting and rearing the children.

These paradigm changes, together with the advent of child support guide-

lines and the concomitant substantial increase in the amount of child support

orders, have raised the stakes for separated parents, contributing to an

increase in custody contests and dissatisfaction with the legal system.

The more recent legal principle of gender neutrality eliminated the gen-

der-based presumptions of earlier years. Legislative bodies, responding

to

social science findings, among other things, of the effects of divorce on chil-

dren, determined that custody decisions should be based on a child-focused

best interests standard. Although the phrase best interests

of

the

child

often

sounds amorphous and ill defined, a child-focused custody standard is a rela-

tively recent legal phenomenon and a stride toward recognition that children

have interests separate and distinct from those of their parents.

In the majority

of

cases, parents decide between themselves what

parenting plan works best for their family. In other cases, after some

form

of

alternate dispute resolution, the parties come to their own agreement. Those

arrangements may not always be in the child’s best interest, but in most cir-

cumstances, the legal process will respect the autonomy of the family. In a

small number of cases, notwithstanding nonadversarial interventions, cus-

tody disputes go to trial. In these cases, courts are called on to reconcile the

competing interests of parents and children to make custody determinations.

This judge’s position that there are some cases in which traditional litigation

is

an

effective method for resolving custody disputes.

If a custody case cannot be resolved by the parents after a competent eval-

uation and with the assistance

of

a qualified mediator, it can be assumed, in

many instances, that one or both of the parents have significant problems.

Perhaps one (or both) parents cannot separate his or her own interests from

those of the children, or one of the parents has a personality disorder, is para-

noid, or

is

a substance abuser still in denial. In such cases, the inability of the

parties to resolve their differences, with the attendant uncertainty and anxi-

ety, has adetrimental effect on the children. The structure, authority, and case

management skills of the judge are central to protecting the children from the

ongoing conflict and to bringing closure to a case. In these instances, the res-

olution itself becomes a factor in protecting the children’s interests.

A

deci-

sion that is made

in

a timely manner, even if it is not the best decision, is in the

best interests of the child because it helps the family move forward. Defining