Flaws of the “Best-interest-of-the-child” discretionary standard

Sixteen arguments for an equal-parental-responsibility presumption. (As presented by Dr. Kruk in “The Equal Parent Presumption“)

1. The vagueness and indeterminacy of the best-interest-of-the-child standard, which gives unfettered discretion to judges not trained in child development and family dynamics, results in unpredictable and inconsistent outcomes based on idiosyncratic biases and subjective value based judgements.


  • The Family Law Education Review Commission found that judges are not equipped to make decisions about the best interest of children in regard to custody or parenting plans.
  • Best interest standards have been left undefined and lack a clear legal consensus (Emery, Otto, O’Donohue 2005)
  • Leads to judges ruling on personal bias and beliefs (Shuman and Burk 2012)
  • Absence of clear definition or legal consensus renders it unworkable (Emery 2007)
  • Judges usually favor litigants with values similar to their own (Warshak 2007)
  • No clear basis for choosing one parent over the other when both are “good enough” (Kelly and Johnston 2005)

2. The discretionary best-interest-of-the-child standard is subject to judicial error, leading to potentially harmful outcomes.

  • The most litigious, well funded parent can end up with custody, if the less able parent is chosen, they could end up with the child 87% of the time.

3. Discretionary best-interest-of-the-child decisions reflect a sole custody presumption.

  • Decisions are usually made to give mothers primary custody while fathers provide financial support (Millar 2009; Millar and Goldenberg 1998)
  • Equal or shared parenting is generally seen as unworkable by the judiciary and thus not ordered (Millar 2009; Millar and Goldenberg 1998)

4. The discretionary best-interest-of-the-child standard sustains, intensifies and creates conflict, and fuel litigation.

  • Hostility from a divorce is the best predictor of poor outcomes for children (Bonach 2005; Semple 2010)
  • Hostile nature of divorce proceedings has very negative impact on post-divorce parental relationships (Pruett and Jackson 1999)

5. The discretionary best-interest-of-the-child standard makes the court dependent on professional evaluations of parenting after divorce which lack an empirical foundation.

  • Judicial reliance on expert testimony is highly problematic as judges are not informed consumers of such evidence (Emery, Otto and O’Donohue 2006; Shuman 2002; Shuman and Berk 2012)

Scientific basis for child custody evaluation is hotly contested (O’Connell 2007)

6. The views of children and parents regarding the best interest of the child are very different to those of the judiciary.

(pruett, Hoganbruen and Jackson 2000)

  • Judges focus on parental capacities and deficits, parents focus on the child’s needs which they state are stability and continuity in their relationships with both parents (Kruk 2010a/b)
  • Children’s primary interest is maintaining meaningful relationships with both parents in equal measure (Fabricius 2003)

7. The current discretionary best-interest-of-the-child standard is a smokescreen for the underlying issue of the judiciary and legal system retaining their decision-making power in the parenting after divorce realm.

8. Within the present system, children of divorce are discriminated against on the basis of parental status in regard to the removal of their parents from their lives.

  • Custody is not awarded, when primary custody is ordered. Rather, it is taken away, from the non-custodial parent, as custody is equally shared before divorce.
  • Children with married parents have the protection of the “strict scrutiny” due process measure, which must be observed before their parents can be taken away. Whereas children of non-married parents have a less strenuous standard, the “best-interest-of-the-child” discretionary standard.

9. Despite best-interest rhetoric, the parties in the legal proceedings are parents whose legal counsel represents their interest, not those of their children, and children’s true needs are lost within a forum where the parties equate their children’s needs with their own interest.

  • Psychological stress of children of divorce is substantial (Kelly 2000, Lamb and Kelly 2001, Laumann-Billings and Emery 2000)







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