Thread: Discuss the aspects and questions judges should consider when deciding which parent a child should live with.
Should a judge ask the child what he or she desires? Would it matter? Should children automatically be given to their mothers? Discuss the difference between sole custody and joint custody. What are the pros and cons of each court decision?
Reply Prompt: Review and respond to 2 of your peer’s responses and provide arguments for agreeing or disagreeing with their views.
1. Diaz- When deciding which parent should get custody of a child, there are many things a judge should consider. In the past, custody has typically been awarded to the mother under the tender years doctrine or the primary caretaker rule, which usually fell to the mother (Costanzo & Krauss, 2018). However, more recently, the law has shifted away from a gender-based approach and now considers custody more on a case-by-case basis of each child as automatically awarding custody to the mother may not be in the best interest of the child (Baker et al, 2016). Baker et al. (2016) explain that the courts now often base their decision on the best interest of the child standard (BICS). This standard requires that the court consider all relevant factors which include the wishes of the child as to their custodian (Baker et al, 2016). In the research conducted by Baker et al. (2016) the child’s desires have been found to be highly determinative in practice and “ranks second in terms of frequency of representation” across the United States (p. 1014). In fact, in California, judges consider the wishes of the child as the most important factor in deciding custody in parental disputed cases (Baker et al, 2016). However, it is argued that children’s preferences can be poor reflections of their best interests making it pertinent that the judge also considers other factors (Baker et al., 2016).
Considering the above, the judge will either decide that sole custody is in the best interest of the child or may award both parents joint custody based on the facts of the case. Steinbach and Augustijn (2021) describe sole custody as the child or children living primarily with one parent after the dissolution of the parental relationship. Joint custody is described as an arrangement in which the child or children live with each parent equally or at least one third of the time with each parent after separation (Steinbach & Augustijn, 2021). Although joint custody is on the rise because of its benefits, research suggests that its success is highly based on the quality of the child’s relationships with both parents and the flexibility or inflexibility of the parenting arrangement (Steinbach & Augustijn, 2021). Realistically, parent relationships with each other are not always ideal after divorce. Putting a child in a joint custody relationship in this type of environment can result in the child being exposed to the “bitter and chronic tension” of parental conflict (Steinbach & Augustijn, 2021, p. 249). On the other hand, sole custody can be beneficial in circumstances where one parent is deemed unfit to provide a safe environment for the child or where the mental and physical health of the parent can be of harm to the child (Steinbach & Augustijn, 2021).
Baker, A. J. L., Asayan, M., & LaCheen-Baker, A. (2016). Best interest of the child and parental alienation: A survey of state statutes. Journal of Forensic Sciences, 61(4), 1011–1016. https://doi.org/10.1111/1556-4029.13100
Costanzo, M., & Krauss, D. (2018). Forensic and Legal Psychology: Psychological Science Applied to Law, 3rd ed. Worth Publishers, Inc. ISBN: 9781319060312.
Nielsen, L. (2018). Joint Versus sole physical custody: Children’s outcomes independent of parent–child relationships, income, and conflict in 60 studies. Journal of Divorce & Remarriage, 59(4), 247-281, https://doi.org/10.1080/10502556.2018.1454204
Steinbach, A., & Augustijn, L. (2021). Children’s well-being in sole and joint physical custody families. Journal of Family Psychology. http://dx.doi.org/10.1037/fam0000875
2. Smith- Stahl (2014) states that the judge’s aspect should refer to the Uniform Marriage and Divorce Act of 1976 (UMDA) in making their decision. The UMDA proposed five criteria to be used for determining custody: (1) the parents’ wishes; (2) the child’s wishes; (3) the relationships between the child and their siblings, their parents, other persons who significantly affect the child’s best interest; (4) the child’s adjustment to home, school, and community; and (5) the physical and mental health of everyone involved with the child. But these guidelines do not tell the judge how to weigh and balance the different criteria in reaching a decision
Vortuba et al. (2014) state that although the “tender years doctrine” has been abandoned, the courts still award custody to the mother in most cases. The “Tender Years Doctrine” is a precursor of the “best interest of the children standard” (BICS) and was the prevailing standard for deciding child custody. Under this doctrine, children, especially female were to be placed with the mother unless there were extenuating circumstances. This doctrine was articulated in the 1889 case of People v. Hickey. Although the principle now appears outdated and sexist, it seemed perfectly natural and self-evident when it was written.
Sole legal custody means that one parent is solely responsible for making all the decisions about the child’s life. An example is a parent with sole legal custody makes decisions such as schools, church, and medical treatment, if needed, will make treatment decisions. The custodial parent, who the child lives with, can make decisions without consulting the other parent. According to Stahl (2014), joint legal custody is shared. The primary advantage is that it ensures both parents remain closely involved in raising the child or children, which may be psychologically beneficial to both the parents and the child.
In a series of well-conducted studies on mediation, Robert Emery and his colleagues conducted a series of well-conducted studies on mediation and assigned divorced couples to either mediation or litigation (Emery, Laumann-Billings, Waldron, Sbarra, & Dillon, 2001). Researchers found mediation led to quicker custody agreements, and both parties were more satisfied with the custody settlement. In addition, comparing mediation to litigation led to more contact and a more positive relationship between the parents. However, some research suggests mothers are more satisfied than fathers with litigation rather than mediation. Consequently, mothers may believe that they could have reached a “better” custody arrangement through litigation. Yet, even though the outcomes between litigation and mediation are largely the same, fathers are more satisfied in mediation because they feel like they had more of a voice in the decision-making process.
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Emery, R. E., Laumann-Billings, L., Waldron, M. C., Sbarra, D. A., & Dillon, P. (2001). Child custody mediation and litigation: Custody, contact, and parenting 12 years after initial dispute resolution. Journal of Consulting and Clinical Psychology, 69, 323–332. doi:10.1037/0022-006X.69.2.323
Stahl, P. M. (2014). Conducting child custody and parenting evaluations. In I. B. Weiner & R. K. Otto (Eds.), Handbook of forensic psychology (4th ed., pp. 137–169). Hoboken, NJ: Wiley
Vortuba, A., Braver, S. Ellman, I., & Fabricius, W. (2014). Moral intuitions about fault, parenting, and child custody after divorce. Psychology, Public Policy, & Law, 20, 251–262.
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