Academic journal article Law and Contemporary Problems

Who Knows What Is Best for Children? Honoring Agreements and Contracts between Parents Who Live Apart

Academic journal article Law and Contemporary Problems

Who Knows What Is Best for Children? Honoring Agreements and Contracts between Parents Who Live Apart

Article excerpt



Professor Robert Mnookin was prescient in pointing to the conundrum judges would face in applying the "best interests" standard in the absence of a legislative definition of "best." (1) He called attention to this problem just as gender-neutral laws were undermining the presumption that children of "tender years" are best reared by their mother, unless she is "unfit." (2) Even following decades of judicial (and parental) uncertainty, law and society have failed to embrace a clear, enduring, and widely accepted definition of children's best interests. (3) Legislatures continue to experiment with various definitions, but these developments largely reflect tensions between fathers' rights and mothers' rights advocates, rather than a clear solution to the indeterminacy problem or a definitive articulation of what might be best for children. (4)

While anticipating one huge problem, Professor Mnookin could not foresee another: the growing number of parents for whom judicial intervention would become relevant, and frequently would be requested, in the decades that followed. Separated, divorced, and never-married (whether cohabiting or not) parents with children under the age of eighteen all are potential candidates for judicial intervention in custody matters. (5) Today, slightly less than half of all first marriages end within twenty years (48% for women, 44% for men), (6) and close to half of children are born outside of marriage (40.8% in 2010). (7) Moreover, only about half of unmarried parents are cohabiting at the time of childbirth, (8) and cohabiting relationships are even more likely to dissolve than are marriages. (9)

The huge number of separated, divorced, and never-married parents who might, and do, appeal to the courts for resolution of their childrearing disagreements has created a problem and a paradox. The practical problem is that courts are overburdened with custody disputes. In fact, custody disputes are now the most common reason for a legal filing in the United States. (10) Family-court judges decide what is "best" for the children of separated, divorced, and never-married parents, often down to the minutiae of weekly schedules, holidays, schooling, extracurricular activities, and perhaps even appropriate eating and clothing habits. The paradox is that courts in the United States have consistently refused to hear similar disputes between married parents, viewing such efforts as contrary to public policy. (11)

Even without considering the different treatment of married parents, one might wonder, If there were no system currently in place, might legislatures shy away from creating a means for judges to intervene in the intimate decisions made by parents for about half of all American children? Would legislatures be even more reluctant facing the fact that no child-protection issues typically are involved in these parenting disputes? Would present-day lawmaking be influenced by the reality that separation, divorce, cohabitation, and nonmarital birth are routine demographically and broadly accepted socially? Might legislatures be concerned about venturing into the family lives and parenting decisions of almost half of all American families for both practical reasons (such as concern about overburdening courts) and philosophical reasons (such as equal-protection concerns (12))?

In part II of this article we explore alternative dispute resolution (ADR) for parents who are disputing various issues concerning child custody. We argue that mediation and other types of ADR offer one of the most hopeful solutions to the problems produced by indeterminacy and demography. As is documented by a growing body of empirical research, encouraging parental self-determination in mediation and other forms of ADR is not only a practical solution to these twin complications; it is perhaps the wisest one.

Yet it is impossible to embark on a discussion of the benefits of parental self-determination without calling attention to the irony that is explored in part III of this article. …

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