Gender Politics and Child Custody: The Puzzling Persistence of the Best-Interests Standard

Scott, Elizabeth S.; Emery, Robert E.

Part I being the introduction, this article proceeds as follows. Part II describes the deficiencies of the best-interests standard, focusing on the daunting verifiability challenges judges face in applying the standard. Part III explores the political-economy explanation for the persistence of the best-interests standard. It examines the gender war in legislatures, focusing particularly on the repeated battles over joint custody in recent decades. Part IV explores the struggles to elevate the importance of domestic violence and parental alienation respectively as key factors in applying the standard, efforts that create a veneer of determinacy important categories of cases. Part V focuses on the illusion of mental-health expertise as the second key to the entrenchment of the best-interests standard. We challenge the assumption that MHPs enable courts to escape the indeterminacy of best interests and can guide them toward good custody decisions. Part VI proposes substantive and procedural reforms that can improve custody decisionmaking, potentially resulting in arrangements th at conform more closely to the law's policy goal.


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Law and Contemporary Problems

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December 9, 2015