Law Commons^™

Gender Politics And Child Custody: The Puzzling Persistence Of The Best-Interest Standard Child Custody Decisionmaking, Elizabeth S. Scott, Robert E. Emery

Faculty Scholarship

The best-interests-of-the-child standard has been the prevailing legal rule for resolving child-custody disputes between parents for nearly forty years. Almost from the beginning, it has been the target of academic criticism. As Robert Mnookin famously argued in a 1976 article, "best interests" are vastly indeterminate – more a statement of an aspiration than a legal rule to guide custody decisionmaking. The vagueness and indeterminacy of the standard make outcomes uncertain and gives judges broad discretion to consider almost any factor thought to be relevant to the custody decision. This encourages litigation in which parents are motivated to produce hurtful evidence …