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LJN NewslettersNewsSectionsThe Matrimonial Strategist

A New Era of Family Law '50/50 Custody' - What Does It Mean?

BY Lynne Gold-Bikin
February 25, 2005

A movement by fathers' groups and their current wives to have every state legislature mandate a presumption of 50/50 custody for all children as a starting point in every contested custody case has created a new area of family law. If you inquire about the rationale behind this movement, the groups will respond that they have a constitutional right to raise their children and, further, that this presumption will alleviate all custody problems. Further, they say, the “best interest of the child” standard is bogus and is just used to deprive fit parents of their rights. Other arguments made by these dads include: the criteria used to award custody are unconstitutionally vague; there are no scientific data to support the continued use of the “best interests” standard, and the standards are arbitrarily utilized. If the legislatures would only mandate a presumption of 50/50 custody at the outset, these groups claim, there would be no interparental conflict, no wasting of family resources, and no shattered lives.

A Bad Idea

Mandating a presumption of 50/50 custody is a bad idea. The attempt to mandate 50/50 as a starting point in a custody case completely obviates 30 years of research and case law on the issue of “best interest of the child.” Despite the position taken by these groups that there is no scientific data on the “best interests” standard, psychologists and psychiatrists around the country have withstood Daubert challenges, with findings that their research is scientific. There is an abundance of literature supporting the standard, beginning with “Beyond the Best Interests of the Child,” by Goldstein. Freud and Solnit have published research and case studies, and peer-reviewed articles on this standard have been published for years in scientific journals. (See, eg, “The Scientific Basis of Child Custody Decisions,” edited by Robert M. Galatzer-Levy and Louis Kraus, published by John Wiley & Sons, Inc. 1999). While there are continued challenges to the use of psychometric tests in custody litigation, there should be no question that the focus of all such litigation should be what is best for a child, not the so-called “rights” of the parent.

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