provided by caregivers who are able and willing to put
the child’s best interests ahead of their own.Best Interests of the Child
All 50 states focus on the best interests of the child in
making determinations regarding parenting time and
responsibility. The “best interests of the child” stan-
dard is, however, an indeterminate one. States may
define the child’s best interests by statute or may leave
the determination to the judge to make on a case-by-
case basis. Child custody matters are decided by
judges in 49 states; in Texas, either party can elect to
put the matter before a jury.
In 1973, the National Conference of Commissioners
on Uniform State Laws published the Uniform
Marriage and Divorce Act, in anticipation of its adop-
tion in a large number of jurisdictions, and in the years
that followed, a number of states adopted parts of the
act to assist courts in custody determinations. Section
402 of that act specifies that the court consider, as
relevant to determining the child’s best interests,
the wishes of the child; the wishes of the parents; the
interaction of the child with parents and siblings; the
child’s adjustment to home, school, and community;
and the mental and physical health of all persons
involved. Many courts continue to rely on these or
variants of these factors in deciding parenting time
and responsibility disputes.A Historical Review
of Custody of Children
In English common law, children were considered to
be chattels, or possessions of their parents. They were
a commodity or resource when they were able to work
or otherwise generate income for their parents and a
liability when they were not productive. Since the
property of a married couple was considered to belong
to the man of the house, children were their father’s
possession.
This notion of children as chattels carried forth to
the United States, and the government was loathe to
intervene in matters regarding the care and control of
children, perceiving those matters to be of concern to
their owners, their parents, or more particularly their
father. However, with an awakened appreciation of the
importance of the mother in meeting the needs of
infant children, the tender years doctrine, holding that
children of tender years generally required the care oftheir mother because she was endowed with those nat-
ural qualities that were important in the nurture of
young children, gradually displaced the children-as-
chattels doctrine. With increasing frequency, mothers
were awarded custody in contested cases. Coincident
with the rising divorce rates in the United States,
mothers began almost universally to win custody of
the child unless fitness could be successfully chal-
lenged. Fathers ordinarily bore an inordinate propor-
tion of financial responsibility, taxed to them in the
form of alimony or child support. Their access to the
child was often restricted to “visitation,” which mar-
ginalized their involvement in parenting to the point
that visiting fathers were referred to by Michael Lamb
as “Disneyland Dad.”
The pendulum began to swing away from the ten-
der years doctrine, however, with several societal
changes. As more women entered the workforce,
parents increasingly shared responsibility for the
home and child care. When marriages ended in
divorce, involved fathers sought meaningful postdi-
vorce contact with children reflective of their presep-
aration child care roles. Second, the roles of children
had changed substantially—from field hands in the
agrarian life of colonial America or workers in the
Depression era middle class to emotionally cher-
ished members of the family. With the postwar
societal interest in improving the quality of life,
Dr. Spock’s advice on parenting, and a proliferation
of self-help books to enhance emotional fulfillment,
there was increased attention paid to children’s emo-
tional needs and to the role that each parent played in
meeting those needs. Divorcing parents argued for a
stake in childrearing based on their claimed fitness to
meet various facets of the growing child’s emotional
needs.
Thus, the two-parent workforce, the shift in
fathers’ roles, and the recognition of the child’s emo-
tional attachment to both parents all converged to
usher in a new era. State legislators increasingly rec-
ognized that it no longer made sense for the child to
be in the sole custody of one parent, with contact with
the other parent occurring through weekend visitation.
Joint custody, in some form, became an option in
every state. Disputing parents might be awarded either
equivalent or joint legal decision-making power, equal
or near-equal time with the child, or both, unless one
parent was demonstrably incapable of providing such
responsibility or care. There was increasing recogni-
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