Considering Vulnerability of Abuse as a Facet of Identity: A Call for Reform in Child Custody Proceedings

Samantha Fitzgerald

For nearly fifty years, the best interest standard has been adopted and applied by all jurisdictions in child custody determinations. The standard aims to impose facially neutral determinations that solely consider the best interest of the child, but many believe that mothers obtain an unfair advantage during these proceedings. A deeper dive into the application and outcomes of courts applying this standard provides that neither aim nor belief is an accurate representation in practice.

Custody proceedings rely on outdated conceptions of patriarchal norms. Under the doctrine of parens patriae, family courts receive exclusive jurisdiction to determine the best interest of the child. The standard relies on the paternal figure, the judge, to use their own discretion when determining what is within the child’s best interest. Judges are often tasked with interpreting situations that are different than their own experiences and outside their areas of expertise. Imposing their own discretion in these matters without relevant training can lead to unintended and harmful outcomes.

The standard’s facial neutrality along with the application of judicial discretion often results in custody outcomes that overlook facets of identity pertinent to a child’s wellbeing. Part I of this Comment will examine case law and research that indicates that courts often leave children vulnerable to abuse by failing to consider how gender, race, and transphobia impact their lives when applying the best interest standard. Part II of this Comment will analyze proposed reforms for the standard and judicial training and take developmental psychology into account to suggest ways to combat inequitable proceedings.