Standards to Resolve Custody Disputes As Society Essay

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Standards to Resolve Custody Disputes

As society evolves, so do the laws and rules that govern it. Laws and the rules that go along with them are in a constant state of evolution because they may or may not be as pertinent in the present as they were in the past or the views and norms of society may have changed such that they have been made moot. This fact is true for all laws, but takes on a special significance with regard to family law. The modern family is not necessarily a husband, wife, two children, and a dog. It may be comprised of any number of different human components. Unfortunately, it sometimes becomes necessary for families to discontinue their social unit and a divorce becomes necessary. Under these circumstances, it becomes necessary to determine who will care for the children which resided within the family unit after the dissolution of the family unit. Deciding who shall care for the children becomes a matter for the law and as such, the decisions are based on rules. Over time, the rules for determining custody have changed as have families themselves. Different family courts have utilized various standards; however, the three standards of custody addressed here include the primary caretaker presumption, the best interest standard, and the approximation standard.

Many courts have found the primary caretaker standard to be helpful in determining with whom the child or children should reside. Though the term seems self evident, for the purposes here it shall be defined as presuming that, "only one parent -- the nurturing parent-should be given primary custody" (Franklin, 2010). Though the term does not seem to be gender specific, based on familial patterns in the current society, it would seem that the presumed primary caretaker will almost always be considered to be the mother of the child and not the father (Franklin, 2010).

Franklin further asserts that whichever parent was the primary breadwinner during the marriage should not be punished upon divorce just because the family made decisions regarding caretaking which enabled them to take full economic advantage regardless of gender.

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In other words, in today's world if either the mother or the father was the designated breadwinner because of their ability to earn more money for the family, he or she would be punished by the primary caretaker rule regardless of their ability care for the child.

Franklin also adds that just because one parent spent more time with a child due to economic reasons, does not ensure that he or she is the best caregiver. On the contrary, the primary breadwinner may indeed be the superior parent (Franklin, 2012). Obviously, more consideration needs to be given to what is truly best for the specific child than simply awarding custody to the parent who spent the most time caring for the child prior to a divorce or breakup.

With the aforementioned in mind, the best interest standard now needs to be addressed. How can one possibly claim to know what is in the best interests of a child one may not have even met (Rohrbaugh, 2007)? Family courts have wrestled with this dilemma for years and many have instituted any number of checks and balances to address the issue. In fact the issue has even been addressed by law.

Though vague, the Uniform Marriage and Divorce Act of 1979 (UMDA) attempts to define the factors that define the best interests standard. Per Rohrbaugh, "Most states have adopted the definition of "Best Interest of the Child" contained in the …(UMDA), which includes five factors: 1. Parent or guardian's wishes re. custody, 2. Child's wishes re. custody, 3. Child's relationship with his/her parent(s), siblings, and other significant people, 4. Child's adjustment to home, school, and community, 5. Mental and physical health of all family members" ( Rohrbaugh, 2007). Unfortunately, even addressing all….....

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