Standards to Resolve Custody Disputes as Society

Standards to Resolve Custody Disputes

As society evolves, so do the laws and rules that govern it. Laws and the rules that go along with them are in a constant state of evolution because they may or may not be as pertinent in the present as they were in the past or the views and norms of society may have changed such that they have been made moot. This fact is true for all laws, but takes on a special significance with regard to family law. The modern family is not necessarily a husband, wife, two children, and a dog. It may be comprised of any number of different human components. Unfortunately, it sometimes becomes necessary for families to discontinue their social unit and a divorce becomes necessary. Under these circumstances, it becomes necessary to determine who will care for the children which resided within the family unit after the dissolution of the family unit. Deciding who shall care for the children becomes a matter for the law and as such, the decisions are based on rules. Over time, the rules for determining custody have changed as have families themselves. Different family courts have utilized various standards; however, the three standards of custody addressed here include the primary caretaker presumption, the best interest standard, and the approximation standard.

Many courts have found the primary caretaker standard to be helpful in determining with whom the child or children should reside. Though the term seems self evident, for the purposes here it shall be defined as presuming that, "only one parent -- the nurturing parent-should be given primary custody" (Franklin, 2010). Though the term does not seem to be gender specific, based on familial patterns in the current society, it would seem that the presumed primary caretaker will almost always be considered to be the mother of the child and not the father (Franklin, 2010).

Franklin further asserts that whichever parent was the primary breadwinner during the marriage should not be punished upon divorce just because the family made decisions regarding caretaking which enabled them to take full economic advantage regardless of gender. In other words, in today's world if either the mother or the father was the designated breadwinner because of their ability to earn more money for the family, he or she would be punished by the primary caretaker rule regardless of their ability care for the child.

Franklin also adds that just because one parent spent more time with a child due to economic reasons, does not ensure that he or she is the best caregiver. On the contrary, the primary breadwinner may indeed be the superior parent (Franklin, 2012). Obviously, more consideration needs to be given to what is truly best for the specific child than simply awarding custody to the parent who spent the most time caring for the child prior to a divorce or breakup.

With the aforementioned in mind, the best interest standard now needs to be addressed. How can one possibly claim to know what is in the best interests of a child one may not have even met (Rohrbaugh, 2007)? Family courts have wrestled with this dilemma for years and many have instituted any number of checks and balances to address the issue. In fact the issue has even been addressed by law.

Though vague, the Uniform Marriage and Divorce Act of 1979 (UMDA) attempts to define the factors that define the best interests standard. Per Rohrbaugh, "Most states have adopted the definition of "Best Interest of the Child" contained in the & #8230;(UMDA), which includes five factors: 1. Parent or guardian's wishes re. custody, 2. Child's wishes re. custody, 3. Child's relationship with his/her parent(s), siblings, and other significant people, 4. Child's adjustment to home, school, and community, 5. Mental and physical health of all family members" ( Rohrbaugh, 2007). Unfortunately, even addressing all these factors will not give a magic answer regarding the best parenting arrangement and custody of a child.

Rohrbaugh argues that the standard also fails to address whether the focus should be on the past, present, or the future of the child. Rohrbaugh also outlines the emotional and developmental differences in children of different ages and argues that the child's best interests will vary by age. Though used frequently by the courts, the best interest standard is not foolproof.

Another guideline used in determining custody in family dissolutions is the approximation standard. The approximation standard is another attempt to place the child in the best possible, post breakup situation. Though this rule is relatively new and has yet to be thoroughly tested, it has been embraced by the American Law Institute as a viable alternative to the other standards used by family courts (Raeburn, 2008). In essence, the approximation standard states that each parent should be allotted the same amount of time with the child post breakup as they spent with the child pre-breakup (Raeburn, 2008).

On the face of it, the approximation standard appears to address the unequal gender issues presented in the other two standards previously discussed (Raeburn, 2008). However, one must merely scratch the surface to determine that this standard will ultimately favor the mother in most situations as the father usually works outside of the home. The fact that the father usually works outside the home does not mean that he is the less favorable parent. On the contrary, the father may have a stronger parental bond with the child than the mother who spends more time with the child (Raeburn, 2008). In situations such as this, the child as well as the absentee parent ( due to work) is the one who will suffer as a result of the approximation standard being strictly enforced by a court of law (Raeburn, 2008).

Furthermore, the approximation standard does not consider the fact that circumstances change after divorce (Raeburn, 2008). The mother who previously stayed at home caring for the child may find it necessary to obtain full time employment to support herself and her child (Raeburn, 2008). How then can she spend the same amount of time with the child after the divorce as she did prior to the divorce? Obviously, this presents another problem with the approximation standard.