Limitations of Establishing the Best Interests of the Child Standard During Divorce (and Why Collaborative Divorce is Best)

Posted on September 13, 2022.

Child custody disputes can arise when a couple with children chooses to get divorced or separate, or if a parent chooses to relocate and needs to change an existing parenting plan.

When it comes to child custody, Washington State Courts rely on the “best interests of the child” standard to guide decisions about parental responsibility, custody, and decision-making.

Unfortunately, this legal standard is rather vague, and open to interpretation. When the courts are called upon to make difficult custody decisions, it can sometimes be hard to predict what a judge might do.

Personal preferences and interpretation of the standard can mean that outcomes can vary widely from judge to judge. 

Fortunately, few child custody cases ever get decided by a judge. Most parenting plans are worked out through court-ordered mediation or through the collaborative divorce process.

According to researchers Eleanor Maccoby and Robert H. Mnookin, only approximately 2 percent of child custody cases ultimately get decided by a judge. 

This doesn’t mean that custody disputes don’t go to court. While only 2 percent of these cases are settled by a judge, many cases might still be brought before a judge who may ultimately recommend mediation or alternative dispute resolution measures.

Ultimately, parents know their children best, and in most divorce cases, establishing a permanent parenting plan should be left in the hands of the parents. 

Whether you choose to negotiate your child custody agreement through mediation, collaborative divorce, or take your case to court, a collaborative divorce lawyer, mediator, or judge will reference the “best interests of the child” standards to help inform your decision-making. 

Yet, this standard has its limitations, and its ambiguities, so it’s wise to have a good grasp of it before you sit down at the negotiating table or before you go to court.

Let’s first take a close look at what exactly the “best interests of the child standard” is, and then look at some of the limitations and issues that can arise when couples take a child custody battle to court instead of utilizing the collaborative divorce or mediation process.

Washington’s Best Interest of the Child Standards

When it comes to determining custody under Washington law a judge will consider the following factors if the court is called upon to make custody decisions or assist in the establishment of a permanent parenting plan:

  • “The relative strength, nature, and stability of the child’s relationship with each parent.”
  • “Each parent’s past and potential for future performance of parenting functions…”
  • An evaluation to determine which parent took on more of the parental responsibilities and child’s daily needs before the divorce or separation.
  • “The emotional needs and developmental level of the child.”
  • “The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities.”
  • The wishes of the parent and the child’s wishes.
  • The employment schedule of the parents.

Washington State Courts further notes: “The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child’s developmental level and the family’s social and economic circumstances.” 

Finally, barring child endangerment, any agreement the parents have made regarding child custody through mediation or collaborative divorce will generally be approved. This basically means that if you and your former spouse can agree about child custody arrangements, there is no need to take your parenting plan to court.

Yet, when couples cannot reach an agreement outside of court, judicial interpretations of these standards can be challenging. For example, while the “best interests of the child” standard calls for an evaluation of the “strength, nature, and stability” of each child’s relationship with his or her parents, each family will define love, stability, and nurturing in its own way. 

For example, some families use words of affirmation as their “love language” while others express love through acts of service and physical touch.

Stability for a family where the adults work in theater, music, film, or the arts might look very different from stability for a family where the adults work 9-5 shifts, night shifts, or shifting schedules. Other factors can be difficult to qualify or quantify. 

Even within a family, different siblings might have different emotional needs and different relationships with their parents.

When you add independent psychological evaluations and judges into the mix, what might look like a stable and strong relationship to one professional may look like an unstable or weak relationship to another.

Given the ambiguity of the best interests of the child standard, the courts will often call upon psychological professionals to perform evaluations to answer some of these questions.

Yet, many of the “tests specifically developed to assess questions relevant to custody are completely inadequate on scientific grounds” according to researchers writing in Psychological Science in the Public Interest. Let’s explore some of these limitations.

Limitations of Psychological Assessment Methods Used to Determine the Best Interests of the Child

According to Psychological Science in the Public Interest, “courts are overwhelmed by the huge numbers of families separating, divorcing, and disputing custody.” Mental health professionals are often called upon to assist the courts in making a decision that will best serve the psychological interests of the children.

 Yet, psychologists note that psychological well-being is but just one aspect of well-being. Economic, medical, educational, and other types of well-being are often not considered or prioritized by the courts.

When researchers looked closely at the psychological evaluations and standards sometimes used by the courts to help judges and families make best interests of child decisions, they found serious scientific limitations in the validity of these methods. 

The researchers write: “given their frequency, high cost, and social and personal importance, we might expect to find a large body of research on custody evaluations and their scientific underpinnings. 

However, only a few studies of custody evaluations have been completed.” While some of the tools used by custody evaluators may have their role in other contexts, “these measures are deeply flawed when used in the custody context.” 

When researchers looked at the tools psychologists used to evaluate children and their parents in the context of child custody, they found that different psychologists used different tests, with intelligence tests used most frequently, followed by the Thematic Apperception Test (where children and adults are asked to tell stories about ambiguous images). 

Other tests that may be used include the Rorschach Inkblot Technique, which is a test that many psychologists view skeptically. 

One criterion noted in Washington’s “best interests of the child” standard includes “the wishes of a child who is sufficiently mature to express reasoned and independent preferences.” 

Yet, there is no indication about what age a child would reach this level of maturity, and researchers writing in Psychological Science in the Public Interest note that children as young as five years old might be called upon to make this determination. 

Furthermore, there are purportedly “independent” tools that psychologists use to help determine a child’s parent of choice. Yet, the Bricklin Perceptual Scales test, used to help evaluators determine a child’s “parent of choice” has received wide criticism about its validity. 

Another test, the Parent Awareness Skills Survey, is designed to evaluate each parent’s strengths. Yet, this test has also been critiqued for “the absence of norms, reliability and validity data, and clear scoring guidelines.” 

Sometimes psychologists use assessment approaches to help them make child custody recommendations. But these approaches may also be limited in effectiveness.

One approach, known as ASPECT, which utilizes a parenting questionnaire, the Rorschach Inkblot Technique, an intelligence test, an academic achievement test, has received criticisms for its failure to “assess factors… relevant to custody decisions.”

Another issue with assessment is that some traits may change over time. A parent found to be depressed during divorce proceedings (who wouldn’t be depressed when their marriage is ending?), may not be depressed in the future. 

Psychologists measuring character traits while a couple is going through the stress of divorce would be wise to keep in mind that most people aren’t at their best when a long-term relationship is at its end. Finally, direct observation and clinical interviews are both unstandardized methods when it comes to making custody recommendations.

Yet, despite the limitations of many psychological assessment tools, certain tools may be useful. For example, it may be relevant to child custody decisions to know whether one parent has a substance abuse disorder, or whether one parent has a serious mood disorder that requires treatment. 

Five mental health problems identified as being “of special concern” when making custody decisions are: depression, antisocial behavior, major mental illness, personality disorders, and substance abuse. 

While some diagnoses might be helpful in guiding custody decisions, others may not be useful. Parental alienation syndrome is a label used in custody battles to describe a situation where one parent is believed to be “turning” the child against the other parent. 

In some psychological circles, the assumption is that if the child harbors anger toward one parent, the sole reason for this is due to one parent manipulating the children against the other parent. Researchers writing in Psychological Science in the Public Interest note that there is no scientific basis for this “diagnosis.” 

In a high conflict divorce, children may sometimes independently take sides or defend one parent over the other. And in some cases of domestic or emotional abuse, the child may choose one parent over the other because the child perceives one parent as safe.

Ultimately, the researchers come to the following conclusion: “There is essentially no psychological science to support the measures and constructs designed specifically for the assessment of child custody arrangements for individual children.” 

What standards should be used, then? The researchers writing in Psychological Science in the Public Interest note that children tend to fare best in situations where conflict between parents is managed or minimal, where children have a good relationship with both parents, and where there is economic security.

They offer three major suggestions:

  1. Collaborative divorce, mediation, alternative dispute resolution, and private settlement of a child custody battle should be encouraged as a first option.
  2. Encourage judges, psychologists, the courts, and parents to reach a child custody agreement that most closely approximates the involvement of the parents before the divorce. 
  3. When psychological testimony is admitted into courts, only testimony that is scientifically supported should be admitted.

Given the limitations of some psychological evaluations in helping make best interests of the child’s decisions, the researchers “urge continued efforts to encourage parents to reach custody agreements on their own—in divorce mediation, through collaborative law, in good-faith attorney negotiations, in therapy, and in other forums.” 

Rather than relying on a single assessment method, or relying solely upon the conclusions of a clinician, divorcing couples or couples in the process of re-negotiating a custody agreement are wise to collaboratively work together to find a parenting plan that works for both parents and the children. 

Relocation and Child Custody

One situation where the child’s best interest standard may play an important role is the situation where a custodial parent wants to relocate, or move, with the child.

Under the law, the custodial parent must give the non-custodial parent notice about the move 60 days before he or she moves. 

The non-custodial parent then has 30 days to object to the move. If the non-custodial parent objects to the move, he or she needs to explain why he or she believes the move is not in the child’s best interests.

The parent who wishes to relocate can then respond, explaining why the move is in the child’s best interests. 

If a dispute arises, the custody dispute may end up before a judge who will use the best interests of the child standard to inform decision-making.

Of course, given the vagueness of the standard, the outcome can depend on the judge and the quality of your lawyer or his or her ability to justify why your move is in the best interests of your child. 

If you find yourself in this situation, you may want to work with a collaborative divorce lawyer in Seattle, Washington who could help you and your former spouse negotiate your differences before the case reaches this point or hire a divorce lawyer who has a firm grasp of the best interests of the child standards.

Truce Law is a collaborative divorce law firm in Seattle, Washington that may be able to help you if you wish to relocate or modify an existing parenting plan.

Collaborative Divorce and Your Child Custody Agreement

Methods of resolving a child custody dispute that involve litigation, the courts, and situations where each parent hires his or her own psychological evaluator, each of whom may reach conflicting conclusions are likely to increase bitterness, conflict, and may lead to more psychological difficulties for the children. 

When it comes to the true best interests of a child, resolving your custody dispute outside of court, through negotiation or through the collaborative divorce process is best. 

This doesn’t mean that both parents don’t hire psychologists, parenting coaches, or other professionals to help them along the way.

It just means that when these professionals are brought into the picture, they aren’t hired to promote disagreement, but rather, to give both parents a better understanding of the children’s needs, their needs, and the underlying causes of their conflicts.  

If you are getting divorced, separated, or are relocating, you and your former spouse may need to work together to create a parenting plan that works for your family, one that is in the best interests of your children. Collaborative divorce gives couples with children the option to work out a parenting plan outside of court. 

The benefits of choosing the collaborative divorce process are that it can potentially eliminate the need for mediation, while couples who choose litigation may end up needing to hire a mediator if they cannot resolve their differences regarding child custody. You can learn more about the differences between mediation and collaborative divorce here.

If you choose the collaborative divorce process in Seattle, Washington, your team may include lawyers, parenting coaches, and psychologists, who can help guide you in making the best decisions for your family and for the best interests of your children. The collaborative divorce lawyer in Seattle, Washington at Truce Law may be able to help you navigate these challenges.

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