The third and final wave of objections to shared parenting identified by Prof. Edward Kruk is that, while shared parenting has been demonstrated to be the best post-divorce arrangement for kids in all but a small percentage of cases, we shouldn’t enact it as a presumption in the law on custody. Those advancing this objection pretend that the existing standard – the best interests of children – is (a) better for kids and (b) in opposition to shared parenting. Both pretenses are just that.
Included in that objection is the notion that judges must maintain discretion in deciding custody and parenting time because all cases are different.
Kruk buries all those claims under an avalanche of facts and common sense.
First, the best interests of the child standard is vague and indeterminate, as children’s best interests are largely undefined, lack legal consensus, and are based on speculation about future conduct. The absence of a clear definition of best interests renders the standard unworkable. Second, the standard gives judges unfettered discretion in decision making, based on their idiosyncratic biases, in an area around which they have little or no training or expertise, and is thus subject to judicial error. This discretion can result in unpredictable and inconsistent outcomes. Third, decisions based on the best interests of the child reflect a sole custody presumption and judicial bias; judges might hold stereotyped or outdated ideas about fathers’ and mothers’ roles that bias their decisions. Fourth, the discretionary best interests of the child standard sustains, intensifies, and creates conflict, and fuels litigation because of the incentive of a winner-takes-all context where such an undefined standard provides a context of anything goes. Fifth, the best interests of the child standard makes the court dependent on custody evaluations lacking an empirical foundation, as the scientific basis for child custody evaluation is hotly contested and the qualifications for becoming an expert are nebulous at best. Sixth, the views of children and parents regarding the best interests of the child, which focus on children’s needs and parents’ responsibilities to those needs, are radically different to the views of the judiciary, which are deficit-based. Seventh, with two adequate parents, the court has no basis in law or psychology for distinguishing one parent as “primary” over the other. Finally, despite the rhetoric of children’s best interests, children’s interests are largely unrepresented in the court proceedings, as a custody contest instead pits the rights of mothers against the rights of fathers (Brown, 2014; Kruk, 2013).