Best Interests of the Child ABC’s: Anxieties, Benefits & Costs

1. Best Interests of the Child ABC’s:Anxieties, Benefits & Costs Bud Dale, Ph.D., J.D. Washburn University School of Law January 7, 2010

2. Best Interests of the Child ABCs I. The Children We Are Worried About – The Doctrine of Parens Patriae In 2004, 68% of 73 million children between 0-17 lived with married parents (e.g., 33.36 million did not). In 2004, an estimated 35.7% of the children born in the US were born to unmarried women. In 2003, 53.2% of children born to women aged 20 to 24 and 26.4% of children born to women ages 25 to 29 were born to unmarried parents. 52% of marriages reach their 15th anniversary (1997).

3. Best Interests of the Child ABCs II. “Best Interests of the Child” Standard in Kansas. * Kansas was one of the first states to develop the “best interests standard” with cases from 1881. * Kansas law on a court’s determination of child custody is clear. K.S.A. 1999 Supp. 60-1610(a)(3) requires a court to determine custody or residency of a child in accordance with the best interests of the child. * The paramount question for determination of custody as between the parents is what best serves the interests and welfare of the children. All other issues are subordinate thereto. See Simmons v. Simmons, 223 Kan. 639, 642, 576, P.2d 589 (1978). …

4. Best Interests of the Child ABCs II. The “Best Interests of the Child” Task & Objective “The ‘Best Interests of the Child’ Concept must be understood as a different kind of legal principle that defines both a task and an objective. It ‘provides a purpose or objective [while] it leaves a decision maker the task of figuring out how to achieve that ‘objective’ in each individual case.” Mnookin, 1975, p. 231.

5. Best Interests of the Child ABCs The “Best Interests of the Child” as an “Adjective.” * “Best Interests of the Child” Standard & Criteria. * “Best Interests of the Child” Goals or Objectives. * “Best Interests of the Child” Tasks. * “Best Interests of the Child” Advocacy Positions or “Presumptions.”

6. Best Interests of the Child ABCs II. The Best Interests of the Child Standard The BIOC criteria are often described as “unweighted, unprioritized factors that are indeterminate” (Mnookin, 1975), that lack consensus operational definition (Gould, 1998), that fuel conflict because of their unpredictable application (American Law Institute, 2002), and that leave judges to make decisions based on their personal experiences and beliefs (Kelly, 1997).

7. Best Interests of the Child ABCs III. The Best Interests of the Child Standard is an Individualized Determination that can be negotiated “in the shadow of the law.” “The Best Interests of the Child standard represents a willingness on the part of the court and the law to consider children on a case-by-case basis rather than adjudicating children as a class or a homogenous group with identical needs and situations.” Kelly, Joan, 1997.

8. Best Interests of the Child ABCs Anxieties, Benefits, & Costs: ALI “Competing Concerns” Predictability versus Individualized Decision—Making. Finality versus Flexibility. Judicial Supervision versus Private Ordering. Biological versus de Facto Parenting. Protection (of the child) versus Privacy (of parents).

9. Best Interests of the Child ABCs Functions of The “Best Interests of the Child” Standard (as opposed to standards for evidence): Truth: accuracy in decision-making. Fairness: a set of rules to provide an unbiased approach to resolving disputes. Efficiency: there will be limits on the time or money that can be allocated to achieve a just, fair, or truthful result. Justice: as a goal is typically ascribed to the system level of analysis – does not occur in every case. (From Sales, B.D. & Shuman, D.W. (2005). Experts in court: Reconciling law, science, and professional knowledge, Washington, D.C.: American Psychological Association.)

10. Best Interests of the Child ABCs III. The Best Interests of the Child Standard Presumptions BIOC replaced “More Predictable” Presumptions Regarding Custody: Children as father’s property (historical common law view). Maternal “presumption” of custody (Psychoanalytic Theory). “Tender Years” Doctrine (Psychoanalytic & Attachment Theory). “Psychological Parent” Doctrine (Psychoanalytic & Attachment Theory). “Least Detrimental” Alternative (Psychoanalytic Theory). “Innocent” parent – in fault-based divorces.

11. Best Interests of the Child ABCs IV. Rationale for the Parental Agreement Presumption * Parents know what is best for their children and, if they participate in the development of the Parenting Plan, they are more likely to follow it and, when necessary, to flexibly adapt it. Besides, parents were dissatisfied with the legal system and its adversarial process. Most parents found it “impersonal, intimidating, and intrusive” (Pruett & Jackson, 1999, in Elrod, 2001). As “too confrontational” and pitting parents as “adversaries” when they had many common interests, namely the children (Oregon Task Force cited in Elrod, 2001). Too often becomes a dual over the relative merits of competing parents. Indeed, anywhere from two-thirds to three-fourths of parents reach voluntary custody and access agreements outside of court (Kelly, 2002).

12. Best Interests of the Child ABCs V. When the Parents Cannot Agree the Role of the Court Changes. About one fourth to one third of divorcing couples report high degrees of hostility and discord over the daily care of their children many years after separation and well beyond the expectable time for them to settle their differences. These cases that attorneys have failed to negotiate, that mediators have failed to settle, and that counselors and therapists have failed to help are referred by courts to progressively more intrusive (and coercive) interventions that wed mental health interventions to social control mechanisms of the court – such as therapeutic interventions, custody evaluations, on-going parent counseling, arbitration, parent coordination, case managers, special masters, and various kinds of supervised access and visitation plans.

13. Best Interests of the Child ABCs V. Evolving Role of the Court from “Fault Finder” to “Conflict Manager” to “Differential Case Manager” (Schepard, 2000). How can this fractured family coordinate its resources and care for the children after the parents’ separation? How can we protect, reconstitute, and restore the positive parts of parent-child and family relationships whenever possible? How can these parents make ongoing cooperative decisions throughout their children’s growing-up years? What help will these parents need from the community to raise their children? (Roseby, 1995).

14. Best Interests of the Child ABCs Parental Conflict/Divorce Impasse Questions How can one best understand the parents’ inability to resolve this dispute (e.g., divorce transition impasse) without the assistance of the Court and this evaluator? What relationship (interpersonal/interactional), personality (psychological/intrapsychic), and systems (external) dynamics account for the parents’ failure to resolve this without this evaluation? What are the parents’ motivational and characterological capabilities for settling the dispute? Johnston, J. & Campbell, L. (1988). Impasses of divorce: The dynamics and resolution of family conflict. New York: Free Press.

15. Best Interests of the Child ABCs VI. K.S.A. 60-1610(a)(3): Child custody or residency criteria. The court shall determine custody or residency of a child in accordance with the best interests of the child. (A) If the parties have entered into a parenting plan, it shall be presumed that the agreement is in the best interests of the child. This presumption may be overcome and the court may make a different order if the court makes specific findings of fact stating why the agreed parenting plan is not in the best interests of the child. (B) In determining the issue of child custody, residency and parenting time, the court shall consider all relevant factors, including but not limited to: (i) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto; (ii) the desires of the child's parents as to custody or residency; (iii) the desires of the child as to the child's custody or residency; (iv) the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child's best interests; (v) the child's adjustment to the child's home, school and community;

16. Best Interests of the Child ABCs (vi) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent; (vii) evidence of spousal abuse; (viii) whether a parent is subject to the registration requirements of the Kansas offender registration act, K.S.A. 22-4901, et seq., and amendments thereto, or any similar act in any other state, or under military or federal law; (ix) whether a parent has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto; (x) whether a parent is residing with an individual who is subject to registration requirements of the Kansas offender registration act, K.S.A. 22-4901, et seq., and amendments thereto, or any similar act in any other state, or under military or federal law; and (xi) whether a parent is residing with an individual who has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto.

17. Best Interests of the Child ABCs (i) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto; Third party custody issue. Directly relates to wishes to provide stability and continuity to child. Alert to Child in Need of Care Proceedings and the reasons for them.

18. Best Interests of the Child ABCs Table 3. How psychologists rank relevant psychological and legal factors in child custody evaluations 1. Sexual abuse of the child by a parent. 2. Physical abuse of the child by a parent. 3. Child’s views and preferences when a child is 15 or older. 4. The emotional needs of the child. 5. Each parent’s ability to understand his or her child’s needs and separate them from his or her own needs. 6. Each parent’s ability to provide a safe physical environment for child. 7. Overall quality of each parent’s relationship with the child. 8. Child’s view and preferences when the child is 12 to 14 years old. 9. Physical violence in the parents’ relationship. 10. Each parent’s current alcohol or drug use. 11. Each parent’s psychological adjustment. 12. Each parent’s ability to accommodate to child’s health needs.

19. Best Interests of the Child ABCs (ii)   the desires of the child's parents as to custody or residency; Statement of Facts Questions in Child Custody Proceedings What custody and parenting time plan does each parent propose? Why does each parent believe their plan is better for the children than that proposed by the other parent? What facts does each parent wish to report, demonstrate, and/or prove, or have believed, in order to justify and support their proposed custody and parenting time proposal as best for the children? Presumptive Question on this factor: Do parents know how to develop parenting plans? This is the justification for Parent Education Programs.

20. Best Interests of the Child ABCs (iii) the desires of the child as to the child’s custody and residency; Empowerment Rationale. Enlightenment Rationale. At what age should a child’s desires be heard? What weight should a child’s preferences be given? At what age should a child “decide” for him/herself? Triangulation and Alienation of the Child.

21. Best Interests of the Child ABCs Children’s Preferences – Payoffs and Pitfalls: “Ideals” Empowerment” rationale: “children profit by participating in decisions that affect central aspects of their lives” (Warshak, 2003, p. 374). “Youngsters whose lives were governed by court orders or parental agreements were distressed that they had lost the freedom that their peers take for granted. They opined that they had less to say, less control over their schedules, less power to determine when or where they would spend their time, especially their precious vacations. … [The court-created child] is given no formal opportunity to express her views or even a preference among plans (Wallerstein & Lewis, 1997, p. 381-382).

22. Best Interests of the Child ABCs Children’s Preferences – Payoffs and Pitfalls: “… the court should be responsive to the child’s voice, amplifying it above the din of competing parents. Only in this way can it ascertain and respect ‘the best interest of the child’” (Wallerstein & Tanke, 1996, p. 323). “Enlightenment” rationale: “children have something important to tell us that may change the decisions we make on their behalf and the way in which we make them. … does not necessarily mean that their stated preferences determine the final outcomes. … Yet sensitive parents faced with such decisions will consider their children’s needs, may elicit their children’s concerns, will try to anticipate their children’s reactions to the proposed changes, and will keep their children’s perspective in mind when dealing with the children regardless of their ultimate decision.” (Warshak, 2003, p. 374).

23. Best Interests of the Child ABCs Children’s Preferences – Payoffs and Pitfalls: “Ideals” Psychologists Judges Attorneys Mean Average age at which 15.10 15.14 15.29 15.17 child can decide with which parent to live Average age at which N/A 15.79 16.11 15.95 child can decide whether to visit parent Ackerman & Ackerman, 1997; Ackerman & Steffan, 2001; Ackerman & Kelley, 2000; Ackerman, M. et al. (2004). Psychologists’ practices compared to the expectations of family law judges and attorneys in child custody cases. 1(1), Journal of Child Custody, 41-60.

24. Best Interests of the Child ABCs Children’s Preferences – Payoffs and Pitfalls: “Realities” Psychologists Judges Attorneys Mean Cooperation/Communication 1 1 1 1 Attachment to Both 2 2 2 2 Contact with Both 4 2 2 3 Geographic Proximity 6 3 3 4 Psychologically Healthy 3 5 6 5 Desire of Parents 5 4 5 5 Child’s Choice 7 6 4 7 Ackerman & Ackerman, 1997; Ackerman & Steffan, 2001; Ackerman & Kelley, 2000; Ackerman, M. et al. (2004). Psychologists’ practices compared to the expectations of family law judges and attorneys in child custody cases. 1(1), Journal of Child Custody, 41-60.

25. Best Interests of the Child ABCs Children’s Preferences – Payoffs and Pitfalls: “Realities” Mean Rating of Importance of Each Item and Related Factor Loadings Mean Standard Deviation Child’s Preferences regarding custody when: Child is 15 years old or older 6.19 1.06 Child is 12 to 14 years old 5.97 0.94 Child is 9 to 11 years old 5.46 1.16 Child is 6 to 8 years old 5.00 1.17 Child is 0 to 5 years old 4.40 1.33 Child’s fears about current family situation 5.51 1.12 Child’s perception of relationship with family 5.36 1.02 Child’s desire to see extended family 4.90 0.97 Child’s desire to see his or her friends 4.42 1.10 Jamison, B.J., Ehrenberg, M.F., Hunter, M.A. (1997). Psychologists’ ratings of the best-interests-of-the-child custody and access criterion: A family systems assessment model. 28(3), Professional Psychology, Research and Practice, 253-262.

26. Best Interests of the Child ABCs Children’s Preferences – Payoffs and Pitfalls: “Realities” Dangers of the Enlightenment and Empowerment Rationales *Children’s attitudes are often temporary, transient, or fluctuating (Wallerstein & Kelly, 1980). *Children’s preferences may also be influenced by: (1) coaching or alienating activities (Gardner, 1998; Kelly & Johnston, 2001); (2) perceived needs to be responsible and care for a needy parent (Hetherington & Kelly, 2002); or, (3) counter-phobic alignments with parents they are afraid of displeasing (Clawar & Rivlin, 1991; Gardner, 1998).

27. Best Interests of the Child ABCs Children’s Preferences – Payoffs and Pitfalls: “Realities” Dangers of the Enlightenment & Empowerment Rationales: *Giving children’s preferences substantial weight in the decision may overburden them with an inappropriate degree of power, inadvertently place them in the middle of the parents’ dispute, and increase their risk for being manipulated or pressured by parents” (Warshak, 2003). *Children do not always know what is best for them, they often tell both parents what they think that parent wants to hear (Garrity & Baris, 1994).

28. Best Interests of the Child ABCs (iv) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests; The ALI Principles & the Approximation Rule: “ … the court should allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the child’s separation … except to the extent required to achieve one or more” of 8 objectives.

29. Best Interests of the Child ABCs Evaluating Approximation Rule (Elrod, 2004). Pro: It rewards past caretaking (which might presumably encourage a non-involved parent to be more involved). It might be yield a more predictable outcome in court (more predictable to child and to parents). Is an objective standard. Makes custody and parenting plan a fact-based determination. It would require only an investigation to determine something that has already happened as opposed to attempting to predict.

30. Best Interests of the Child ABCs Evaluating Approximation Rule: Con Assumes amount of care pre-divorce equals quality of care, to parenting ties to the child, and/or to parenting competence. Does not allow for sufficient consideration of “divorce activated” parenting. Inconsistent with attachment research regarding multiple important attachments. Decreases the idea of a partnership marriage and locks people into pre-divorce roles. Does not provide for child’s preferences. Has elements of primary caretaker and other past assumptions.

31. Best Interests of the Child ABCs (v) the child’s adjustment to the child’s home, school and community; Children can be better off if parents divorce. Divorce is painful and the children are at risk. Powerful predictors of child’s adjustment: parental conflict and opportunities for access and positive relationships with both parents.

32. Best Interests of the Child ABCs Children’s adjustment following divorce reflects factors other than the divorce itself. There are differences in the average psychological well-being of children from happy marriages, it is also true that the majority of children from divorced families are emotionally well-adjusted (Amato, 1994; Hetherington, 1999; in Kelly & Emery, 2003). Divorce as a catastrophe for children evolved into a view that children are better off if unhappy people divorce (Scott, 2002). Children’s painful memories & experiences must be distinguished from presence of pathology (Kelly & Emery, 2003). Divorce, in essence, places children at risk but does not doom them to eternal failure and anguish (Schepard, 2004).

33. Best Interests of the Child ABCs Children’s adjustment following divorce reflects factors other than the divorce itself. (“Divorce is not the culprit.”) Children’s behavioral symptoms and academic problems could be identified years before the divorce and that parental conflict and access to positive and significant relationships with both parents were powerful predictors of the adjustments of children of divorce. Factors affecting children’s post-divorce adjustment: * individual child vulnerabilities, change in family composition and father absence, increased economic stress and problems shifting from two-parent to one-parent household, effects of parental distress on child, and changes in family expressions of conflict and emotion (Hetherington, Bridges, & Insabella, 1998); loss of a parent, interparental conflict, and diminished parenting (Buchanan, Maccoby, & Dornbush, 1996).

34. Best Interests of the Child ABCs (vi) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent; Rationale & empirical support for Joint Custody. The “Friendly Parent” provision, Impact of Parental Conflict on Children, Parental Alienation, and the Alienated Child.

35. Best Interests of the Child ABCs “Joint custody symbolizes both the gender and emotional equality of the parents for the child. The court begins with a premise that both parents care about their child, and that the child benefits from having a relationship with both of them” (Schepard, 2004, p. 45). “… the issue is almost never “Is one parent more fit than the other and therefore should that parent have sole custody? … The relative fitness of the parents is not the issue to be determined by the court. The parents’ roles in their child’s upbringing, including decision-making, division of time, and allocation of responsibilities, are determined based upon what is in the child’s best interests … Termination of a parent’s meaningful participation and involvement in the child’s life is unwarranted in the vast majority of cases, since utter unfitness or incompetency to parent is rarely extant (Connell, 2005).”

36. Best Interests of the Child ABCs “Joint custody: good, but not the panacea.” Bauserman, R. (2002). Child adjustment in joint-custody versus sole-custody arrangements: A meta-analytic review. 16(1), Journal of Family Psychology, 91-102. “Children in joint physical or legal custody were better adjusted than children in sole-custody settings, but no different from those in intact families. More positive adjustment of joint-custody children held for separate comparisons of general adjustment, family relationships, self-esteem, emotional and behavioral adjustment, and divorce-specific adjustment. Joint-custody parents reported less current and past conflict than did sole-custody parents, but this did not explain the better adjustment of joint-custody children. The results are consistent with the hypothesis that joint custody can be advantageous for children in some cases possibly by facilitating ongoing positive involvement with both parents.”

37. Best Interests of the Child ABCs *Implementation of the “joint custody” concept has varied: - Distinctions between “legal custody” & “physical” or “residential.” - Frequent awards of “joint legal custody” with a “primary residence.” - Joint equals “shared residency,” only with special provisions (parents’ agree, etc.). KS: Special Child Support implications. - Presumptions (CA before, FL now) & Preferences. * The term “custody” makes parents think in the language of criminal law and property. It projects a negative image of the role of the visiting parent in the lives of children after divorce, thus encouraging parental competition and combat. The core idea of the parenting plan, in contrast, is to help parents plan for their mutual involvement in the future lives of their child by encouraging them to think in terms of actual parenting tasks rather than legal labels” (Schepard, 2004, p. 49).

38. Best Interests of the Child ABCs Arguments against Joint Custody Limitations in the Joint Custody “Evidence” itself (even the meta-analysis revealed only moderately positive findings. There is evidence connecting child’s adjustment to psychological health of primary custodial parent (Hetherington). Evidence limiting positive impact of fathers to those fathers who exhibit “authoritative parenting” (high on warmth and high on control). Questions about whether the noncustodial parent is “essential.”

39. Best Interests of the Child ABCs Impact of Parental Conflict on Children. 20-25% of children experience high conflict during their parents’ marriage (Booth Amato, 2001; Hetherington, 2001). Although often assumed, pre-divorce high conflict does not perfectly predict post-divorce conflict (Booth & Amato, 2001). Some couples reduce their conflict once separated or divorced – “divorce works” for some. When parents continued to have conflict but encapsulated their conflict and did not put their children in the middle, their children did not differ from children whose parents had low or no conflict (Buchanan et al; Hetherington, 1999). This review relies heavily on: Kelly, J.B. & Emery, R. E. (2001). Children’s adjustment following divorce: Risk and resilience perspectives. 52, Family Relations, 352- 362.

40. Best Interests of the Child ABCs Impact of Parental Conflict on Children. “Better for kids if parents divorce.” The association between marital conflict and children’s poor adjustment is robust. Marital conflict is a more potent predictor of post-divorce adjustment than post-divorce conflict (Booth & Amato, 2001; Kline, Johnston, Tschann, 1990). Research on impact of post-divorce conflict and children’s adjustment is more mixed and less straight-forward. Post-divorce conflict had more adverse effects that did conflict in married families (Hetherington, 1999).

41. Best Interests of the Child ABCs Impact of Parental Conflict on Children. High conflict is more likely to be destructive post-divorce when parents use their children to express their anger and are verbally and physically aggressive on the phone or in person (Buchanan et al, 1991; Johnston, 1994). Parents who express their rage toward their former spouse by asking children to carry hostile messages, by denigrating the other parent in their presence are creating intolerable stress and loyalty conflicts in their children. Such youngsters were more depressed and anxious when compared with high conflict parents who left their children out of angry exchanges (Buchanan et al.; Hetherington, 1999).

42. Best Interests of the Child ABCs The Alienated Child or Parental Alienation Gardner, R.A. (2001). The empowerment of children in the development of parental alienation syndrome. American Journal of Forensic Psychology, 20(2), 5-29. (http://www.rgardner.com/refs/ar14.html). Kelly, J.B. & Johnston, J.R. (2001). The alienated child: A reformulation of parental alienation syndrome. Family Court Review, 39(3), 249-266. Drozd, L.M. & Oleson, N.W. (2004). Is it abuse, alienation, and/or estrangement? A decision tree. Journal of Child Custody: Research, Issues, and Practices, 1(3), 65-106. Sullivan, M.J. & Kelly, J.B. (2001). Legal and psychological management of cases with an alienated child. Family Court Review, 39(3), 299-315. Williams, R.J. (2001). Should judges close the gate on PAS and PA? Family Court Review, 39(3), 267-281. In re marriage of Cobb, K.S. Court of Appeals, 82,458, August 13, 1999. In re marriage of Kimbrell,

43. Best Interests of the Child ABCs (vii) evidence of spousal abuse. Co-occurrence of wife(spousal) abuse & child abuse. (what is it? Estimates vary from 30% to 70%. Lundy Bancroft/Jeffrey Edelson/Peter Jaffe: writer researchers. Advocates for victims of domestic violence have succeeded in including evidence of past DV in child custody determinations, sometimes as a factor and other times as a presumption. (Bartlett, 2002). The Conflict of Neutrality & Assigning Accountability.