Myth # 7: Who gets custody will be determined by what is in the best interests of the child.
One of the abiding myths of divorce is that the judge will determine what is in the best interests of the children and award custody accordingly. Although there are very few full blown custody fights the misunderstandings that flow from the myth can confuse discussions of how to organize the parenting of the children. The very concept of “the best interests of the child” is an example of the confusion that grows from the adversary divorce process. Lawyers all piously invoke the “best interests” doctrine as if it was something that could obviously be determined. What is wrong with the concept is that it only makes sense within the logic of adversary relations. To be explicit the notion of the best interest of the child versus the best interests of the parents is nonsensical. It arose from the battles of yore in which each parent claimed to be superior to the other and sought exclusive control of the child. So the courts, in a bow to child psychology, were to determine which parent best served the interests of the child. It is an oxymoron because the very existence of the custody fight serves the worst interests of the children.
One advantage of being a mediator is that I am not tied to the illogic of the adversary system. I am able to ignore this “best interest of the child” concept in favor of the idea of “the best interest of the family.” To quote one of the early pioneers of family therapy “divorce is not the death of a family; it is the reorganization of the family.” A divorcing family must reorganize into two households and children have a place in both houses. Divorcing families thrive when every member thrives. So how the family reorganizes must account for the interests of all: all the kids and both parents. Each child has needs for both parents and each parent has needs for each child. To turn this into an either/or contest is nothing but destructive.
When I started practicing in 1978 joint custody was a novel idea that appealed to a small group of progressive lawyers while most held out for the old sole custody model. Today, joint custody is rapidly becoming the norm particularly among educated parents. Today most mothers are employed so a traditional model that imposes full time parenting and full time employment on one parent just does not work. Each parent needs time with the children and, just as important, time without the children. And the only way that happens is a joint parenting arrangement in which both parents remain fully involved with the children. That is the model for “the best interests of the family.”