Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of Children in the Balance

Posted: 7 Mar 2009 Last revised: 7 Oct 2016

See all articles by Linda D. Henry Elrod

Linda D. Henry Elrod

Washburn University - School of Law

Milfred D. Dale

Milfred Dale, Ph.D.


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

Suggested Citation

Elrod, Linda D. Henry and Dale, Milfred D., Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of Children in the Balance. Family Law Quarterly, Vol. 42, No. 3, 2008, Available at SSRN:

Linda D. Henry Elrod (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States
(785) 231-1010 x1838 (Phone)
(785) 231-1037 (Fax)

Milfred D. Dale

Milfred Dale, Ph.D. ( email )

2201 SW 29th Street
Topeka, KS 66611
United States
785-267-0025 (Phone)
785-266-6546 (Fax)

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