Child’s Best Interest vs. Parental Rights

The “Parental Rights Initiative” required courts to award “equal parenting time” to both parents after divorce or separation. The measure was defeated by a sizeable margin (62% to 38%) but it represents only the latest round in a combustible campaign to change how child custody cases are decided.

A history of child custody (in a nutshell)

Colonial Americans followed the English common law rule that upon divorce the father retained custody of his children. Fathers had the right to the physical custody, labor and earnings of their children in exchange for supporting, educating, and training them to earn their own livelihoods or, in the case of girls, marry a man who would support them.

Colonial mothers, though deemed worthy of honor and deference, were not endowed with legally enforceable parental rights.

This paternal preference continued well into the 19th century. In fact, the 1848 Women’s Rights Convention in Seneca Falls – the first women’s rights convention – listed the fathers’ automatic custody rule among its principal complaints. But women began gaining the upper hand as our legal system dealt with two cultural transformations: the industrial revolution’s remaking men into marketplace wage earners and the emergence of a “separate sphere” for women as domestic caregivers.

By the early 20th century, motherhood had attained near-mythical status. Under the “tender years” presumption, custody of young children was almost exclusively awarded to mothers upon divorce.

It took a social revolution to unseat the tender years doctrine and replace it with gender-neutral custody standards.

English: Daniel Amneus, author, Ph.D., English...
English: Daniel Amneus, author, Ph.D., English Professor (Photo credit: Wikipedia)

Mounting divorce rates in the 1960s and ensuing decades provoked a lively debate about parental roles and custody issues. The movement for gender equality, along with the rise of fathers’ rights groups, called attention to the importance of both parents in the care of children at the same time as loosening the link between gender and parental roles.

The end of formal rules dictating a result favoring one parent over the other led to the adoption of a more inclusive but less definitive standard of deciding custody cases based on the “best interests of the child.” This standard opened up the possibility of excessive judicial discretion as well as a threat of inconsistency in the results, resulting in hotly contested custody battles.

From the rule of one to the sharing of custody

No matter how child custody was determined, one rule continued to be ironclad: custody was indivisible. After a marital breakup, only one parent could properly raise the children, with the other parent entitled merely to visiting rights. Until the late 20th century, courts regularly refused to allow divorcing parents to share custody. The dominant view was that after divorce a child needed the full time stability of a home run by one parent.judge judy

Equal Parenting Alliance
Equal Parenting Alliance (Photo credit: Wikipedia)

The greater social and legal acceptance of shared custody in recent decades came about when parents began shouldering more equal parenting responsibilities. State legislatures, courts, and parents themselves began to value the opportunity for a child to continue a strong and meaningful relationship with both parents. The new approach sought to avoid treating one parent as merely a visitor, and to reduce the trauma of marital dissolution for children. Sharing custody also became a way to circumvent the brutal dynamics of adversarial child custody litigation.

An important 2014 study shows that child custody norms are significantly changing in the 21st century, with the proportion of parents sharing custody rising dramatically. In fact, we reached a major milestone in the past decade: for the first time since the mid-19th century, custodial arrangements that did not provide sole custody to mothers constituted a majority.

The vocabulary of child custody is also adapting to shared parenting.

“Decision making” and “parenting time” are replacing “legal custody” and “physical custody.” The modern terms reflect a cultural pivot toward mutual child rearing responsibilities rather than declaring a winner and a loser. On balance, then, it appears that our society has adapted the best-interest-of-the-child standard to provide some variant of shared custody. In custody cases today, both parents increasingly enjoy significant, though not necessarily equal, amounts of parenting time.Unfriendly Family Courts

The problem with presumptions, and a better alternative

Legally enforceable presumptions, such as the one proposed and rejected in North Dakota or the one that the Governor of Minnesota vetoed in 2012, are problematic. An equal parenting presumption shifts the starting point for a custody determination from the child’s best interests to how the parents will divide the 168 hours in a week so that each parent handles half the child rearing.

A 50/50 presumption alters the critical issue from what’s best for the child to how we can treat the parents equally. That’s not the same question at all. A legal presumption of equal parenting time effectively converts the current focus on the child’s welfare to a best-interests-of-the-parents standard.

There is another alternative, better than having a judge decide the child’s best interests and far better than a legal presumption.

In the past few years, separating and divorcing parents have begun taking matters into their own hands by crafting “parenting plans” for their children. These blueprints for post-divorce child rearing allocate parenting time and decision-making authority for each child, depending on the child’s particular needs and circumstances. A good parenting plan also sets out dispute resolution options (such as mediation or a parenting coordinator) for the inevitable time when the parents will face unanticipated child rearing problems.

Many states – Arizona is a leader on the issue – are redefining the issue of parenting after divorce from a demand for custody by one parent to a requirement that both parents work together to create a “parenting plan.” These plans further the public policy goal that children have frequent and continuing contact with both parents, and that both share in the responsibilities of raising their children.

Parenting plans may be crafted from scratch, or they may be customized from a menu of templates and sample plans available from court or private organization websites. Parents often negotiate these plans by themselves, with the help of a mediator, or through counsel. The plans should be flexible but fairly detailed, describing each parent’s area of responsibility in providing for the child’s residential and physical care as well as emotional well being, both at the time the plan goes into effect and as the child ages and matures.

Unlike a court custody order, a parenting plan can include mechanisms to adjust to children’s developmental changes as they age and to other significant family transformations.

Parenting plans are homemade custody resolutions, and courts remain a last resort for deciding contested custody cases. But the parenting plan movement is providing approaches towards sharing custody more in keeping with child development research and less likely to lead to further damaging litigation.

The failed North Dakota “equal parenting time” initiative sought a rigid resolution of the most sensitive issue after divorce: how can parents who no longer live together continue to raise their children.

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Our society is gradually adopting shared parenting by choice, not by mathematical formula. We should encourage the movement toward parenting plans rather than legal briefs, mediation rather than litigation, and sharing the parenting rather than dividing the child.Keep an open mind - 2016

Source: Child custody – parental rights vs the child’s best interest

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Fighting to preserve Parent–Child relationships to improve the lives of children and strengthen society by protecting t he child’s right to the love and care of both parents after separation/divorce. Dedicated to the proposition that children are best served by having unfettered EQUAL access to BOTH parents and to the ...proposition that fathers are indispensable. Improve the lives of children and strengthen society by protecting the child’s right to the love and care of both parents after separation or divorce. We seek better lives for children through family court reform!! It's about the human rights of children with particular attention to the rights of special protection and care afforded to the young, including their right to association with both biological parents.

23 thoughts on “Child’s Best Interest vs. Parental Rights”

  1. Interestingly, Professor DiFonzo directs readers to a study on a single US State (Wisconsin) to make the wide sweeping conclusion “for the first time since the mid-19th century, custodial arrangements that did not provide sole custody to mothers constituted a majority”. (By such logic, given Democrats won the Governor in Pennsylvania, this past election must have been a Democratic wave). We’re the professor to use the more recent 10 year study on Nebraska, he find children received an average of 5 days a month of visitation with what the court determined to be their non-parent.

    Further, the professor fails to mention literally ANYTHING on what social scientists have found is best for children. Perhaps the professor is unaware, in 2014, 110 world experts endorsed a paper calling for shared parenting as it produces the best results for children. The 110 world’s top authorities are comprised by experts in early child development, divorce research, forensic psychology, psychiatry, psychoanalysis, sociology, counseling, and social work. (Among them they have published several hundred books and all are either editors of journals or sit on editorial boards.) Similarly, there are now over 40 peer reviewed studies which show shared parenting results in the best outcome for children. Lawyers are motivated as the profit from parents fighting over their children. Such is quite obvious in this 2 minute video:

    For more information on shared parenting, and the amazing women who support it as the cornerstone of family law, visit

    Liked by 5 people

  2. The “Best interest of the child” (BIOC) policy or doctrine is clearly unconstitutional. The U.S. Supreme Court has said the parents must determine what the BIOC is, governement cannot do that. “Clear and convincing evidence, “Strict scrutiny” and FULL due process is required to even limit a parents’ rights to their children. This is ignored by all 50 states for profit and power motives.

    BIOC is subjective, religous and depends on things the courts cannot possibly know. Family courts have evolved into a racket, a mafia really, raping the estates of divorcing couples by creating problems that do not exist to generate billable hours at outrageous rates.

    The 14th Amendment requires equal treatment and trumps ANY state law (even under the states family law doctrine) under The Law of Supremacy. Any lawyer should know that and understand that these courts, in all 50 states, are operating unconstitutionally! See for more and the statistics that prove family court judges are destroying our country with up to 91% sole custody orders to collect Title IV-D federal kickbacks on child support of billions per year. Judges cannot know, and do not care what is best for children, only themsleves. Family law is a racket, not a court of law at all.

    Liked by 3 people

  3. Every child deserves an involved dad.

    Many people are surprised at the research which shows a connection between father absence and an increase in social problems in America including: poverty, teen pregnancy, juvenile delinquency, physical abuse, suicide, substance and alcohol abuse and a host of other troubling social problems. The sad fact is that not only does father absence hurt children, fathers suffer as well.

    Developing positive relationships with their children encourages and motivates fathers to lead more constructive lives, even in the most difficult of circumstances. For instance, the simple act of regularly writing to their children from prison improves outcomes for incarcerated fathers, including increasing their odds of training for, finding, and keeping a job once they reenter society. Evidence shows that fathers who write to their children once a week have a lower risk of violence in prison and recidivism when released. These positive outcomes are multiplied when we study the impact on the children of inmates, and how father contact can change the trend of their children’s lives – even while the father is still incarcerated.

    In addition, research and experience tell us that there is a strong correlation between lack of father involvement and many larger social challenges. Sadly, trends are against us. The Centers for Disease Control and Prevention (CDC) notes, in a study that investigated these trends, 2006 – 2010, “fewer fathers now live with their children” over the period studied. Reasons for this depressing trend include incarceration, non-marital childbearing and other factors.

    According to the U.S. Census Bureau, 24 million children in America, one out of three children in America, now live in biological father-absent homes. Furthermore, according to the national surveys conducted by NFI, 9 in 10 parents believe there is a father absence crisis in America.

    This study, an excellent resource on the impact of father-child involvement, also describes how “increased involvement of fathers in their children’s lives has been associated with a range of positive outcomes for the children.”

    Fatherhood is in crisis in America, and you can help. By using our evidence-based programs your department, agency, or not-for-profit group can increase father involvement, improve the lives of children everywhere, and reverse negative trends in a wide range of social issues. Or, by becoming an individual activist, you can bring fatherhood programming to your community and help to reduce a host of social ills in your neighborhood.

    NFI is a nationally respected, oft-cited, non-profit organization committed to better outcomes for children and our society as a whole. Our research and programs make a positive difference in the relationships between fathers and children – even in cases where a father is not physically present in the home. You don’t have to be a bystander to the fatherhood crisis in America; you can help to turn the tide and help us create a world in which every child has a 24/7 Dad.

    Thank you for your interest and support,

    The National Fatherhood Initiative® Team –

    Liked by 3 people

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