Fighting Over Bedtime Stories: An Empirical Study of the Risks of Valuing Quantity Over Quality in Child Custody Decisions

Abstract

Child custody decisions often present a tragic choice, and so the ongoing struggle over the optimal legal rule is predictable. The long-standing, qualitative “best interest test” frequently is criticized for its indeterminacy, and charged with increasing parental conflict and litigation. But the current trend towards quantitative solutions has unintended negative consequences for children of divorce.

This is epitomized by the ALI’s “Approximation Rule,” which allocates post-divorce custody shares based on the percentage of time that each parent spent on child care tasks before separating. Arguably influenced by the proposal, states increasingly emphasize this measure in deciding custody disputes. ALI assumed that parents generally would agree on these historical facts, thus reducing parental hostilities, and that the amount of time spent on parenting tasks corresponds well to the strength of the parent-child bond.

This Article makes an important, new empirical contribution to the debate. Data collected from 94 parents during custody evaluations show parents’ virtually complete disagreement on their respective share of time spent on parenting duties. The perceived judicial focus on these facts in custody decisions has led to new kinds of strategic behaviors, including fights over who does what task, which frequently occur at home and in the presence of children. Analysis of the psychological research literature shows that this tactic is particularly likely to have a negative impact on children of divorce. This and other claims made in the Article are substantiated by our national survey of mental health professionals. The Article also presents attachment theory research to show that the empirical evidence contradicts the ALI’s assumption that caretaking time is a good proxy for a secure parent-child bond.

Finally, the Article takes seriously the critiques of the best interest test. We make suggestions for reducing the risks of bias, which is inherent in any subjective standard. And, using bargaining theory and research on cognitive biases, we address the worry that the best interest test puts women in an unfair bargaining position. A qualitative, open-ended inquiry may not be simple, but it is the best fit with research findings on how to protect children from the upheavals of divorce.

Keywords: child custody, best interest test, best interest of the child, approximation rule, primary caretaker, joint custody