Child Development

Factors in Determining the Child’s Best

Interest

The majority (an estimated 90%) of custody cases
are settled according to parents’ wishes. The court
will accept whatever parents agree on. This process
has been criticized because it does not necessarily en-
sure the child’s best interest. Critics point out that this
procedure may be especially harmful to children if vi-
olence exists in the family; the terms of the agreement
may not necessarily be fair but may be coerced and
may prolong the child’s exposure to violence. When
parents cannot agree, the court tries to evaluate the
best interests of the child, considering the following
factors:

• The parent-child relationship. It has been rec-
  ommended that young children be placed with
  their ‘‘primary caregiver’’ to minimize disrup-
  tion for the child. Fathers have protested that
  this standard favors mothers. In response, sup-
  porters of this standard have suggested that it
  provides an incentive for fathers to be involved
  in their children’s upbringing from the begin-
  ning.


• The wishes of the child. Whether to consider the
  wishes of the child is controversial and varies
  from state to state. There is a concern that chil-
  dren may not know what is in their best interests
  and may even pick the worst parent just because
  he or she is more permissive. A further concern
  is that letting the child choose will induce guilt
  feelings in the child later on.


• Parents’ mental and physical health. These
  should be relevant only if they affect child rear-
  ing. Courts may also consider the child’s age
  and gender and any special needs the child may
  have.


• Lifestyle and conduct of parents. These factors
  are considered only if they affect the child (e.g.,
  parents’ substance abuse, child’s exposure to
  secondhand smoke). Courts have moved away
  from considering parents’ sexual behavior, un-
  less it can be shown that a parent’s activities have
  a negative impact on the child. If neither parent
  is fit to have custody of the child the court may
  award custody to a third party (e.g., relatives or
  foster parents).


• Parents’ ability to provide adequately for the
  child. Courts take into account each parent’s
  ability to provide such necessities as food, cloth-
  ing, and medical care.


• Continuity with the primary caregiver, the other
  parent, and with home, schools, and communi-
  ty. To promote continuity, courts may favor the

parent who is more likely to allow the nonresi-

dential parent access to the child.

Critics point out that the best interests of the

child standard is so imprecise that it promotes con-

flict between divorcing parents and judicial bias and

arbitrariness in decision making. ‘‘Judicial discre-

tion’’ entitles judges to consider all, some, or none of

the factors, or they may weigh them according to their

own personal values and views.

The Number of Children in Custody

Allocations

The exact number of children involved in custody

allocations is not known. Reporting is not uniform,

consistent, or comprehensive within and across states.

Based on figures from the National Center for Health

Statistics, at a divorce rate of 4.1 per 1,000 population

in the United States in 1999 (amounting to 1.1 mil-

lion divorces) and an average rate of 0.9 children per

divorce decree, approximately one million children

were affected by divorce. It should be noted, however,

that divorce data do not provide complete estimates

of the total number of children involved in custody al-

locations, because one out of three children in the

United States is born to unmarried parents. More in-

formative estimates stem from the reports of house-

hold living arrangements compiled by the U.S.

Bureau of the Census. The majority (85%) of children

who lived with a single parent in 1998 lived with their

mother. About 40 percent of these children lived with

mothers who had never been married.

Evaluation of Various Custody

Arrangements

Because of the great diversity of individual and

family characteristics it is not possible to make a gen-

eralization that one custody type is better for all chil-

dren or all parents. Nevertheless, when examining

research on child custody certain trends emerge.

Joint custody has the advantage of assuring the

child of continuing contact with both parents. It alle-

viates some of the burdens of parenting as parents get

time off for their own interests. The disadvantages of

joint custody include less stability for children, as they

must be shuttled between the parents, and problems

for parents who want to move to a different area. Per-

haps the most crucial consideration in deciding custo-

dy is that ongoing parental conflict is a primary

predictor of children’s maladjustment. Children who

continue to feel ‘‘caught in the middle’’ when parents

fight face particularly negative outcomes.

82 CHILD CUSTODY AND SUPPORT