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Parenting by the Clock: the Best-Interest-Of-The-Child Standard, Judicial Discretion, and the American Law Institute's

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Parenting by the Clock: the Best-Interest-Of-The-Child Standard, Judicial Discretion, and the American Law Institute's University of Baltimore Law Review Volume 41 Article 3 Issue 1 Fall 2011 2011 Parenting by the Clock: The Best-Interest-of-the- Child Standard, Judicial Discretion, and the American Law Institute's "Approximation Rule" Richard A. Warshak University of Texas Southwestern Medical Center at Dallas Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr Part of the Family Law Commons, and the Law and Psychology Commons Recommended Citation Warshak, Richard A. (2011) "Parenting by the Clock: The Best-Interest-of-the-Child Standard, Judicial Discretion, and the American Law Institute's "Approximation Rule"," University of Baltimore Law Review: Vol. 41: Iss. 1, Article 3. Available at: http://scholarworks.law.ubalt.edu/ublr/vol41/iss1/3 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. PARENTING BY THE CLOCK: THE BEST-INTEREST -OF- THE-CHILD STANDARD, JUDICIAL DISCRETION, AND THE AMERICAN LAW INSTITUTE'S "APPROXIMATION RULE" Richard A. Warshakt ABSTRACT ....................................................................................... 85 I. INTRODUCTION ...................................................................... 86 II. GENDER STEREOTYPES AND THE EVOLUTION OF THE BEST-INTEREST STANDARD ....................................... 89 III. BENEFITS OF THE BEST-INTEREST-OF-THE-CHILD STANDARD ............................................................................... 96 IV. CRITICISMS OF THE BEST-INTEREST STANDARD ....... 102 V. THE BEST-INTEREST STANDARD AND JUDICIAL DISCRETION ........................................................................... 106 VI. PROPOSALS FOR DETERMINATE CUSTODY STANDARDS .......................................................................... 109 A. Primary Caretaker Presumption ...................................... 110 B. Joint Custody Presumption ............................................. 111 VII. THE APPROXIMATION RULE: PRESUMPTION, EXCEPTIONS, AND DEFINITION OF CARETAKING ...... 113 A. The Presumption and Its Exceptions ............................... 113 B. Parenting Versus Caretaking Functions .......................... 115 VIII. THE APPROXIMATION RULE: GOALS, RATIONALE, AND ASSUMPTIONS ............................................................. 117 A. Default Rule for Trials, BAINA for Negotiations ......... 117 t Clinical Professor of Psychology, University of Texas Southwestern Medical Center at Dallas. B.S. 1971, Cornell University; Ph.D. 1978, University of Texas Health Science Center. I am honored and deeply grateful for the helpful comments from Professor Robert J. Levy on an earlier draft of this article. Professor Barbara Atwood offered valuable feedback. Her critical responses and those of Professor Mary O'Connell to my prior work on the approximation rule helped clarify and sharpen my ideas. John A. Zervopoulos, Ph.D., J.D. helped improve my analysis and presentation. This article benefited from the diligent work and keen grasp of the subject and relevant literature displayed by the staff and editors of the University ofBaltimore Law Review. (Email: [email protected]). 83 84 Baltimore Law Review [Vol. 41 B. Refinement or Replacement of the Best-Interest Standard? ......................................................................... 118 C. Rationale .......................................................................... 119 IX. ANALYZING THE RATIONALE AND ASSUMPTIONS OF THE APPROXIMATION RULE ....................................... 121 A. Gender-Neutrality Versus the Perception of Gender Bias .................................................................................. 121 B. Impact of the Approximation Rule on Custody Trials ... .124 1. Disputes over Past Caretaking ................................... 126 2. The Exceptions Swallow the Rule ............................. 132 C. Impact of the Approximation Rule on the Bargaining Process ............................................................................. 137 D. Implications of Parents' Past Decisions .......................... 139 E. Is Past Parenting Quantity a Proxy for Past, Present, and Future Parenting Quality? ......................................... 142 1. Promoting Stability and Continuity of Parent­ Child Relationships in the Face of Divorce-Related Changes in the Family ............................................... 143 2. Quantity of Caretaking Time as an Index of Relative Strength and Quality of Parent-Child Relationships .............................................................. 15 6 X. REVISITING THE BEST-INTEREST STANDARD ............ .160 XI. CONCLUSIONS ...................................................................... 162 2011] Parenting by the Clock 85 ABSTRACT The American Law Institute proposes that in contested physical custody cases, the court should allocate to each parent a proportion of the child's time that approximates the proportion of time each spent performing caretaking functions in the past. Examined through the lens of child development research, the approximation rule is unlikely to improve on the best-interests-of-the-child standard. The approximation rule is difficult to apply, creates a new focus for disputing parents, renders a poor estimate of parents' contributions to their child's best interest, and overlooks parents' intangible, yet significant, contributions to their child's well-being. Measuring past­ caretaking time is difficult, and quantity of care does not correlate with quality of care. A best-interests standard that retains the benefits to children of individualized decision making is preferable in the context of contemporary reforms that accommodate new knowledge and encourage non-adversarial resolutions of custody disputes. Keywords: approximation rule, child custody, divorce, custody disputes, best-interests-of-the-child, joint custody, equal custody, primary-caretaker presumption, friendly parent presumption, American Law Institute. 86 Baltimore Law Review [Vol. 41 There is always an easy solution to every human problem-neat, plausible, and wrong. - H. L. Mencken I. INTRODUCTION In 1972, the best-interest-of-the-child standard (the best-interest standard) replaced a centuries-old reliance on stereotyped gender­ based assumptions in child custody matters. I In recent years, the emphasis on individualized multi-factored custody determinations has come under assault. Critics raise two main concerns related to the broad judicial discretion inherent in the prevailing standard: the vague standard increases the likelihood of psychologically harmful litigation (and decreases the rate of pre-trial settlements), and it serves as a conduit for personal biases to influence outcomes.2 Of the various remedies proposed, the one poised to replace the best-interest standard, by virtue of its endorsement from the prestigious American Law Institute (ALI), is the approximation rule. 3 The rule divides the child's time with each parent according to the proportion of time that each parent participated in caretaking prior to the separation. 4 ALI's Restatements of the Law-formulated by influential jurists, bar leaders, and law professors-profoundly influence American law, even prior to legislative endorsement. After a slow start, the approximation rule is gaining ground. Its impact is felt in courts. In In re Marriage of Hansen, the Iowa Supreme Court, electing not to adopt the approximation rule absent legislative approval, nevertheless praised the rationale behind the rule: "By focusing on historic patterns of care giving, the approximation rule provides a relatively objective factor for the court to consider.,,5 In In re The Marriage of Powers, the same court favorably cites a rationale for the approximation rule offered by ALI's reporter: '''[P]ast caretaking 1. See, e.g., Ex parte Devine, 398 So. 2d 686, 696 (Ala. 1981); Stephen J. Bahr, Trends in Child Custody Awards: Has the Removal of Maternal Deference Made a Difference?, 28 FAM. L.Q. 247, 249 (1994). Professor Guggenheim points out, "Even though as late as 1976 in more than thirty states the mother was awarded custody of her young children, so long as she was fit, the tender years doctrine was rapidly replaced by gender-neutral rules." MARTIN M. GUGGENHEIM, WHAT'S WRONG WITH CHILDREN'S RIGHTS 147 (2005) (endnote omitted). 2. See Jana B. Singer & William L. Reynolds, A Dissent on Joint Custody, 47 MD. L. REv. 497, 508 (1987). 3. AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (2002) [hereinafter PRINCIPLES]' 4. See Marygold S. Melli, The American Law Institute Principles ofFamily Dissolution, the Approximation Rule and Shared Parenting, 25 N. ILL. U. L. REv. 347, 353 (2004). 5. In re Marriage of Hansen, 733 N.W.2d 683, 697 (Iowa 2007). 2011] Parenting by the Clock 87 patterns likely are a fairly reliable proxy of the intangible qualities such as parental abilities and emotional bonds that are so difficult for courts to ascertain.",6 The Massachusetts Supreme Judicial Court cited the approximation rule in In re Custody of Kali to support a preference for the continuity of current relationships.? In addition to case law citations, the approximation rule has been adopted by West Virginia;8 must be considered by judges in Catalan, Spain when making custody determinations;9
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