Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of Children in the Balance
Linda D. Henry Elrod
Washburn University - School of Law
Milfred D. Dale
Milfred Dale, Ph.D.
Family Law Quarterly, Vol. 42, No. 3, 2008
The last fifty years of child custody law reflect paradigm shifts and pendulum swings in the prevailing scientific and societal views of what is in the best interests of a child. The evolution of the law tracks changes, shifts, and sometimes divergent perceptions of the needs of children and families, particularly those involved in conflict. The trend has been away from broad judicial discretion to a more rules-based approach. For each change that has inspired hope for better, easier, or more efficient ways of resolving painful family conflicts and dilemmas, there have been frustrations and uneven results. Not every change has been progress. The article explores five decades of child custody law, starting with the changes in families and the problems caused by high conflict families. It also discusses the legal changes from presumptions to factor-based best-interests-of-the-child analysis, and outlines how the court systems have adapted to different mandates and tasks, as well as to the growing numbers of high-conflict cases. Lastly it sets out the increasingly complex role of mental health professionals in custody disputes.
Keywords: family law, child custody, children, best interests of the child, divorce conflict, children's rights, Frye test, Daubert criteria
Date posted: March 7, 2009 ; Last revised: October 7, 2016