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Copyright (c) 2011 American Psychological Association
Psychology, Public Policy and Law

ARTICLE: Lay Judgments About Child Custody After Divorce

May, 2011

Psychology, Public Policy & Law

17 Psych. Pub. Pol. and L. 212


Sanford L. Braver, Ira Mark Ellman, Ashley M. Votruba, and William V. Fabricius, Arizona State University


When parents divorce, their children can no longer live with both of them. Perhaps they see each parent often enough to maintain a close connection with both; perhaps not. Logistical as well as personal barriers arising from the failed parental relation may make it difficult to achieve an optimal resolution of the postseparation custodial arrangements. When parents cannot agree on these arrangements, courts decide what they will be. In the United States, as well as most of the Western world, the usual rule today directs courts to make the custody allocation that is "in the child's best interests." Under this Best Interests Standard (BIS), "for the first time in history, custody decisions were to be based on a consideration of the needs and interests of the child rather than on the gender or rights of the parent" (Kelly, 1994, p. 122). The BIS is generally regarded as egalitarian, fair, and simple. It is also seen as flexible (Chambers, 1984; Warshak, 2007), permitting courts to customize its decisions to take proper account of the varying facts of every case, rather than impose a one-size-fits-all rule.

Nonetheless, the BIS has also been heavily criticized. The classic critique, by leading legal scholar Robert Mnookin (1975), argued that it gave judges unconstrained discretion, permitting them to decide custody disputes by applying their personal values about the proper approach to child-rearing. Chambers (1984) notes these values inevitably vary from judge to judge; Finley and Schwartz (2007) note they also vary from parent to parent. ...
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