Peskind Summary
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XXXPeskind Summary
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XXXDetermining the Undeterminable: The Best Interest of the Child Standard as an Imperfect but Necessary Guidepost to Determine Child
Custody (Steven N. Peskind) I. Introduction It is hard to reach a satisfactory social agreement about what kind of adults we want children to become The Best Interest Standard is an indeterminate standard dependent upon the subjective values and life experience of the fact finder and psychological experts Critics argue this is worthless A Short History of Allocation of Child Custody a. The Evolution from Rules-based adjudications to a discretionary standard i. Paternal Preferences: English law influence until late 19th century This rule was derived from ancient Rome where the pater-familias ruled Children as property of their fathers Colonial American Era: father as economic head of the household Assumption that he would better supervise the children Early American Jurisprudence was already rejecting notions of children as property ii. A Transitive Period A rule based on fault emerged: the children will be best taken care of an instructed by the innocent party Awarding custody to the mother became a byproduct of that social convention iii. The Maternal Preference and the Tender Years Doctrine Came to accept women as having superior morals and nurturing skills b. Family Law Transformed Feminism as a political force Between 1960 and 1990, the maternal preference s eviscerated in all states, leaving a void filled with the best interest standard The Best Interest Standard: Is There a Better Way? According to the American Law Institute, the best interest standard is o 1) indeterminate and unpredictable Need for individualization in custody cases to achieve a just result Standard must be open-ended Relies on the values and personal bias of the fact-finder o 2) impossible to adjudicate Burden on the court to predict the future Appellate review is emasculated o 3) unjust
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Irony of the compromise is that it would frequently expose the children to a split the baby shared custody agreement Litigation costs increased Other Alternatives to the Best Interest Standard a. Sex-based Standards i. Universally rejected ii. Unfair b. Primary Caretaker Preferences i. To avoid value judgments about what is best for children in favor of a standard that builds on certain principles of child welfare about which there is clear consensus ii. Emphasis on the importance of the stability of the childs relationship to a primary caretaker as a measure of the childs best interests iii. Also has failures (ex. in Minnesota) c. The Least Detrimental Alternative Standard i. Allows a court to take a more realistic look at childrens needs in the context of a divorce ii. Problematic: sends the standards of parents too low, avoiding harm instead of attempting to inspire parental excellence d. Comparison of Various Standards i. No better alternative to existing best interest standard ii. Problem is not with the appropriate legal standard to use, but with the means by which the court system administers custody actions in order to minimize both harm and promote the childs interests Practical Solutions to Theoretical Problems a. Litigation Controls i. Expedited litigation ii. Less reliance on conclusions of custody evaluators regarding childrens best interest iii. Better appellate review iv. Enhanced trial skills of practitioners and jurists Conclusion The law has been unable to develop a workable standard that is equitable and efficient Instead of avoiding contested litigation, the courts need to embrace its inevitability Better lawyers, judges, and court administrators can all help maximize childrens interests despite a legal standard
