From Heartbreak to Healing

Changing Child Custody Laws

In the US before the 19th century, when children were the legal property of their father, the attitude toward men was, “Father knows best.” Later the “tender years” doctrine prevailed, with the belief that young children belong with their mother because they need her affection most. The practice shifted to automatically give custody of the children to the mother, with reasonable visitation rights granted to the father.

Divorce rates have grown steadily, exploding in the 1970s. It was during this time that the Uniform Marriage and Divorce Act (UMDA) was passed in the US due to the recognition of the inherent gender bias in the “tender years” doctrine. Under the new law, the Best Interest of the Child Standard (BICS) was established at the federal level to encourage states to place the well-being of children above parental rights when determining custody. This gender-neutral approach attempted to level the playing field for parents as gender roles shifted in marriage.

False accusations of child abuse when parental alienation is present during divorce muddy the waters of law enforcement. For example, when a mother is trying to alienate a father, she may falsely accuse the father of sexual abuse and neglect. Or, when a father is trying to alienate a mother, he may falsely accuse her of child neglect and abuse.

The travesty of justice which occurs when false accusations are alleged is that the court often acts immediately to protect the child by limiting the access of the accused parent until a determination can be made about the truth of the allegations. The problem with this well-intentioned action is that when the accusations are false ones made up by the alienator, and the child resides with the alienator, the child is forced to live with the abuser for months or sometimes years while being restricted from contact with the other parent. This means that the alienation ends up being inadvertently supported by the court action and the alienation becomes more entrenched during the lengthy investigation. This nightmare scenario is lived by thousands of families every day. Tragically, many children age out of court oversight without ever resolving the alienation and often spend the rest of their lives never reconnecting with their once-beloved parent.

Today half of the workforce is women, and the number of stay-at-home dads has doubled in the last couple of decades. BICS has been helpful in causing each child’s situation to be considered individually, rather than designating custody automatically. States today generally make custody determinations based on “the best interests of the child,” although they may not agree on the details of what that means.

The weakness of BICS is that it does not provide specific guidance to states for determining the best interest of the child in an individual situation such as described above. Five best interest factors are listed in the federal law, but without specifying how they are to be measured or prioritized:

1. the wishes of the parent(s);

2. the wishes of the child;

3. the relationship between the child and the parents, siblings, and anyone else that may affect the child’s best interest;

4. the child’s adjustment to his or her environment at home, school, and community; and

5. the physical and mental health of everyone.

The Act also specifies that courts shall not consider a parent’s conduct that does not affect the child.

Individual states have attempted to establish various guidelines for judges and custody evaluators to consider, but there is no consistency among states, nor do the states prioritize the factors to be considered.