“Best Interests” Hard to Define

By Attorney Gregg Herman
July 5, 2010

Winston Churchill once said, “There is nothing wrong with change, if it is in right direction.” Over the past two decades, family law has seen tremendous change, mirroring changes in society. Years ago, for divorcing parents, the “child of tender years” doctrine meant that custody was usually awarded to the mother, with the father having visitation on alternative weekends and an evening or two during the week.

Today, legal custody is awarded jointly in virtually all cases, and physical placement is frequently shared equally.

This is the second of a two-part series in this column discussing this change in child sharing over the years. Last week, I discussed the (slightly ambiguous) legal basis for equal placement. This week’s column will discuss the policy implications: Is this change beneficial for children?

Any discussion of children in divorce has to start with the term “best interests.” Is there any legal term more used, but less defined? Indeed, there is no case in Wisconsin that even tries to define it. For that matter, there are few cases anywhere in the country that even make an effort at defining “best interests.”

Rather, it is used as a lodestar, as an amorphous goal, rather than as a reality.

Indeed, a child psychologist once testified that the term could not properly be used. Since the “best” placement for children is to have one home and an intact family, she could not use the term “best” for a placement schedule for separated parents. In her view, the proper test should be which schedule would be the least detrimental alternative.

One Expert’s Analysis

A number of years ago, as part of a select committee through the American Academy of Matrimonial Lawyers, I had the opportunity to discuss these issues with Judith Wallerstein, perhaps the leading researcher on the effects of divorce on children. Wallerstein’s work includes:

Second Chances: Men, Women and Children a Decade After Divorce (Houghton Mifflin, 1996);

Surviving The Breakup: How Children And Parents Cope With Divorce (Harper Collins, 1996);

The Unexpected Legacy of Divorce: A 25-Year Landmark Study (Hyperion, 2000).

When asked what factors were the most determinative of the effect of divorce on children, Dr. Wallerstein highlighted three:

1. Whether at least one parent (preferably, both) presents a warm, caring and loving environment;

2. The level of conflict between the parents; and,

3. The independent psychological makeup of the child.

As lawyers, there is little we can do about the first and the third of these factors. We can (and frequently do) refer clients to parenting classes to improve their skills, but otherwise, the legal system can do little at improving parenting ability. The DNA of the child was already selected.

There is a lot we can do, however, about the second factor; that is, to reduce the level of conflict.

To do so requires, as does much else in this area of law (and in life), a balancing test. When a parent wants an unequal placement schedule, the question is not whether such a schedule would be “best,” but rather, would it be the least detrimental alternative. Included in that discussion has to be the possibility of a destructive battle over placement, substantially increasing the level of conflict involving the children.

Therefore, the balancing test is, how much does an extra day or two over a two week period harm a child, compared with the harm of litigation? While there is certainly a positive attribute to stability, does the additional stability of an extra day or two merit the potential harm?

I don’t have answers to these questions, which is my point. Likewise, mental-health professionals, social scientists or the trial courts also haven’t concluded whether this particular change is in the right direction.

Therefore, the default position has become that, absent intervening circumstances, such as a history of violence or substance abuse, geographic difficulties or the entirely separate issue of teenage angst, the known harm to children by fighting over them is greater than allocating placement equally.

If anyone has a better analysis, please let me know.

This article originally appeared in the Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.