Child Custody Evaluations

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” standard 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-bycase 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 adoption 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 of their mother because she was endowed with those natural qualities that were important in the nurture of young children, gradually displaced the children-aschattels 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 challenged. Fathers ordinarily bore an inordinate proportion 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 marginalized their involvement in parenting to the point that visiting fathers were referred to by Michael Lamb as “Disneyland Dad.”

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