Family feud.

The law, lawyers, and the court.
June 18 2004 5:39 PM

Family Feud

Family courts don't solve conflict, they create it.

Illustration by Mark Alan Stamaty

Custody battles. Custody wars. Custody disputes. Conflict has become so ubiquitous in family law that it is difficult for anyone not to think of it once the word "custody" is mentioned. The initial assumption is that this stems from the parties. That assumption is questionable. To be sure, there is often (but by no means always) anger and bitterness during the breakup of a relationship. But displeasure does not necessarily breed dispute. Why do so many people who were once extraordinarily happy together end up in such deep conflict? The answer may be that the custody laws—not the people—are to blame.

Conflict arises when people believe they are being treated unfairly. And treating people unfairly is the hallmark of the family courts, where judges actually announce that they are not concerned with fairness to parents. They claim this is permissible as a result of their statutory duty to address the needs of the child, but the fact is children need their parents to be treated fairly. Especially in view of the marked limitations in accurately rating or measuring parenting abilities, each individual—absent true harm—should have an absolute right to 50 percent time with his or her children. That would instantly decrease custody conflicts.

Advertisement

Let's look at a typical situation. Two people have a child and decide that one of them—rather than some outsider—should provide childcare. Which parent should that be? Often, the decision is made by default. If there is a significant disparity in earning capacity, for instance, it is likely that the lower-wage earner will stay home. In other words, Parent A—due to increased training or earning potential—sacrifices the joys of being with the child. Parent B—reciprocally—gets excess parenting pleasure.

When the two break up, Parent A is suddenly told that this prior bargain is now set in stone. He or she must continue to work and support the child and forgo the chance at parenting equally. Why? Because the State has gotten involved, telling Parent B, "Forget Parent A! Because you were the 'primary caregiver' before, you can maintain that role. Furthermore, the less you share, the more vengeance, power, control, and money (in child support) you get. All you need to do is walk over to the family court and sign up."

Parent A is then left with only two choices: accept losing the most important thing in a parent's life (i.e., the right to be with one's child), or fight to defend that basic liberty. Thus, the State exacerbates (if not actually creates) conflict by insisting that the previously agreed-upon arrangement should be maintained. "This isn't about you, Parent A," say the "experts." "It is the child we need to protect!"

Perhaps. But—far more likely—perhaps not. Who is this child being protected from? These were both fine parents until this stage. They both love their child, and the child loves them both in return. Why would we think that the child would be harmed by treating both parents equally?

Never stopping to consider that question, the State imposes a "best interests of the child" standard. While that sounds great, it is actually fraught with problems. First of all, parenthood is a fundamental constitutional right. Like free speech, freedom of the press, and freedom from illegal searches and seizures, there is a constitutionally protected freedom to nurture a child without unnecessary government involvement. Normally held to a neglect or abuse standard, parents alone decide how to care for their children, and the government becomes involved only if the children are endangered. In the family law setting, however, this different, far more intrusive "best interests" standard is introduced. This switch takes place even though there are no changes in parenting skills, and the parents have committed no wrongdoing. Government may not change the standards under which people exercise their basic rights simply because an interested party files a piece of paper.

The second problem with the "best interests" standard is that it violates the constitutional right to equal protection of the law. Since when do we "better" the lives of one class of citizens at the expense of some other class? The "best interests of the child" standard permits the government to shatter the life of one parent—which is precisely what occurs when people are unjustly kept from their children—if it believes that will "better" the life of the child, however marginal or illusory the benefit. Note that we're not speaking here of protecting the child, which government has the absolute duty to do. We're saying that if we can keep the child from one less cough per year, we can give a parent terminal cancer. If we can take the child on one more picnic, we can deprive a parent of every future vacation. If we can give the child an extra hug, we can chase away another parent's soul mate.

More to the point, what in the world are the "best interests of the child"? Is it "better" for a child to have a tuna-fish sandwich or to eat at McDonald's? Tuna is healthier. McDonald's tastes better. Tuna's cheaper. McDonald's is more fun. Tuna saves on gas. McDonald's gets everyone out of the house. Who's going to value all these factors and decide what's "best"? Whether it's a trivial issue (such as lunch), or one far more important, this multiplicity of factors is involved in the thousands of decisions parents make each day. Add to the mix the impossibility of predicting how care today will impact any given child 10 years from now, and it's clear that no one can determine what is "best." The suggestion that anyone—judges, child psychologists, court-appointed evaluators, etc.—can do this is pure arrogance; arrogance for which there is not one shred of evidentiary support. In fact, it may well be that every custody decision made by these people has been the completely "wrong" one. … How would anyone ever know?

For those still insisting that the system itself isn't the cause of the conflicts, consider the way courts treat parents of different religions. Most state laws prohibit judges and "experts" from becoming involved in religious controversies. As long as there is no harm to the child (and no trashing of the other parent's views) both parents have the absolute and equal right to inculcate whatever religious beliefs they choose. Amazingly—with no incentive to fight; with no money riding on it, and with no possible religious "winner"—religious disputes between parents have become virtually unheard of in the family courts. Imagine, though, what would happen if a "best religious interests of the child" standard were implemented and "religion support money" were given to the parent whose religion was deemed "better" for that child. Does anyone doubt for a second that litigation over religion would skyrocket?

The most incredible aspect of all this is that the "experts" in this field continue to tout the system's superiority with absolutely no reliable data demonstrating any efficacy whatsoever. Furthermore, they gloss over its undeniable harms. Worsening the bond between the two most important people in a child's universe, wasting extraordinary amounts of money, and decimating a parent's life are grievous injuries. Surely, there is an obligation to show a benefit in return. No one would allow a drug with such horrendous adverse effects to be put on the market without such proof. How has that been allowed in this arena?

All parents—absent a finding of true harm—should have an absolute right to 50 percent custody of their children. Such a system—stripped of incentives to battle for more—would largely eliminate the harms just noted. Sure, there will be some inconvenience to the children. But children are inconvenienced all the time in intact families, and they survive just fine without the State butting in. Some kids have to get up early to milk the cows. Some have to bicycle miles to high school. Some are put in daycare. We don't make huge issues of those "difficulties" when the parents are together … why should we do so when the parents are apart? Life comes with good and bad times—that's part of growing up. Most parents—treated fairly, and left with the equality the Constitution mandates—will always be far more capable of, and dedicated to, ensuring what's "best" for their children than any combination of judges, attorneys, and "experts." Until real evidence is provided that the benefits of the current approach outweigh its costs, we should simply value the diversity of parenting styles, respect parental rights, and stop causing conflict.

Michael Newdow is the California man who challenged the Pledge of Allegiance in the courts. He is a father, doctor, and a lawyer.