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Center for Gender & Sexuality Law


The best-interests-of-the-child standard has been the prevailing legal rule for resolving child-custody disputes between parents for nearly forty years. Almost from the beginning, it has been the target of academic criticism. As Robert Mnookin famously argued in a 1976 article, "best interests" are vastly indeterminate2- more a statement of an aspiration than a legal rule to guide custody decisionmaking.' The vagueness and indeterminacy of the standard make outcomes uncertain and gives judges broad discretion to consider almost any factor thought to be relevant to the custody decision. This encourages litigation in which parents are motivated to produce hurtful evidence of each other's deficiencies that might have a lasting, deleterious impact on their ability to act cooperatively in the actual best interests of their children.

Despite these deficiencies, the best-interests standard has proved to be remarkably durable. Although scholars as well as the American Law Institute (ALI) have proposed reforms,' legislative efforts to narrow the best-interests standard have been largely unsuccessful. A few states have adopted a rule that bases custody on parents' caretaking, but at least one legislature has responded to a courts' imposition of a primary-caretaking rule by rejecting that rule and reviving the best-interests standard.! Repeated efforts by fathers' groups to enact laws favoring joint custody have usually failed as well. The persistence of the best-interests standard presents a puzzle: Are the academic critics wrong or does something other than the utility of the rule explain the reluctance of policymakers to change the status quo?

In this article, we confirm the deficiencies of the best-interests standard and seek to explain its persistence despite its obvious limitations. First we argue that the standard's entrenchment is the product of a gender war that has played out in legislatures and courts across the country for decades. Most substantive reforms have been perceived (usually accurately) as favoring either fathers or mothers, and thus have generated political battles between their respective advocates. The primary front in this war has been a protracted battle over joint custody. Fathers' groups have lobbied hard for statutes favoring joint physical custody, but they have been opposed vigorously by women's advocates.! As a result of the standoff, little progress has been made (in any direction) toward replacing the best-interests standard with a custody decision rule that would narrow and guide the judicial inquiry.

Mothers' and fathers' supporters have also battled over the formulation of the best-interests standard itself, with each group arguing for presumptions that can trump other factors when the standard is applied. Mothers' advocates, allied with law-enforcement groups, have lobbied effectively for a statutory presumption disfavoring the parent who has engaged in acts of domestic violence.' Fathers' groups have responded by seeking to persuade courts and legislatures to assign substantial negative weight to one parent's concerted efforts to alienate the child from the other parent.9 Each of these factors implicates a key policy concern and, in theory, might bring greater determinacy to custody doctrine in important categories of cases. But domestic-violence and alienation claims are difficult to verify, and courts are often ill equipped to separate valid claims from those that are weak or false."o This uncertainty encourages contesting parents to raise marginal claims, which, if successful, can trump other factors relevant to the best-interests determination." In turn, excessive use of domestic-violence and parental-alienation claims threatens to diminish the credibility of genuine claimants.