How many times have you heard or read the phrase “the best interests of the child?” If you read much about family law and family courts, the probable answer is “more times than I can count.” Indeed, establish a Google Alert for the phrase and you’ll get links to several articles, court cases, op-eds, etc. a day, every day of the week. In Canada the “best interests of the child” has been raised by the Supreme Court to a level of importance that trumps even constitutional considerations.

So, with the phrase in such common usage and so vital to custody decisions, you might think that it (a) means something and (b) those using it know what it means.

But to an astonishing degree, you’d be wrong on both counts. In fact, the phrase is more intuitive, a shoot-from-the-hip type of locution. It’s like a Rohrschach inkblot test; the interpretation given to it by the user reveals more about the user than about the phrase itself. That’s the point attorney Chris Gottlieb was making in the New York Times recently when she referred to determinations of the “best interests of the child” as being made “subjectively, inconsistently and often erroneously.”

Gottlieb’s quick and dirty description agrees nicely with what academic researchers have been saying for years. As I mentioned in a piece not long ago, psychologists O’Donohue and Bradley wrote in 1999 that “[t]here is no useful operational definition of what the best interests of the child actually are.” They went on to say that both state statutes and psychologists themselves disagree on such basic things as what should be considered relevant to determining a child’s best interests. And since the necessary variables aren’t agreed upon, appropriate tests haven’t been developed with which to measure the best interests of a child.

And yet, day after day, week after week, year after year, family courts continue opining sagely about the best interests of the child. Undeterred by a lack of much on which to base their opinions, courts continue issuing their orders. It seems that, when wandering in the wilderness, the important thing is to avoid appearing lost.

But now Canadian academic Paul Millar has published a book entitled “The Best Interests of Children: An Evidence-Based Approach.” As the name indicates, Millar wants to do what should have been done decades ago – bring science to bear on the question of what benefits children when it comes to decisions about custody post-divorce or separation. That is, he takes the novel approach of examining children’s outcomes and attempting to correlate them with things like family structure, gender, parental behaviors, divorce, etc.

His data come from a variety of sources including the National Longitudinal Survey of Children and Youth, but most importantly from the Central Divorce Registry of the Canadian Department of Justice. Apparently, that’s not public information because Millar had to obtain it in its raw form via a freedom of information request. His analysis of the data is “the first… analysis of custody data published to date, and the first attempt at predicting legal case outcomes using multivariate modelling techniques.”

I’ll write more about Millar’s book in the future, but for now I want to focus on one aspect of his work – gender. As I said, Canada enshrines the “best interests of the child” as the most important factor in child custody decisions, or at least that’s what the courts repeatedly say. But what the courts repeatedly do is give primary custody to mothers; in fact, about 90% of primary custody in Canada goes to mothers. As Millar says, the custody data from the Department of Justice “illustrate a pronounced reliance on stereotypical notions of gender roles: parental gender is by far the most important predictor of custody outcomes.” So you’d think that the best interests of children must be highly correlated with gender, specifically the female gender.

But that’s not true. In fact, “psychologists performing custody evaluations regard the gender of the parent among the least relevant considerations in custody decisions.” What Millar calls “simple, bivariate analyses” support the conclusion that using parental gender to make custody decisions is in fact contrary to children’s interests.

But maybe those psychologists are wrong; maybe other factors tend to congrue with maternal custody and result in better outcomes for children. Millar studies those other factors via a multivariate approach and determines that “parental gender is…in fact not a predictor at all of any of the child outcomes examined here; that is behavioural, educational or health outcomes.”

Therefore, “there appears to be a disconnect between the theoretical criterion of custody determinations – best interests – and what actually plays out in the context of the justice system.” And given the fact that family courts and family law say one thing – that children’s best interests are paramount – and do another – award primary custody on the basis of a factor (gender) that fails to promote children’s best interests – “we must abandon the claim that the court has been acting in children’s best interests.”

Those opposed to fathers’ parental rights will make the argument that, if gender isn’t related to children’s outcomes, what difference can it make that 90% of primary custodians are women? Or, as Millar asks “if either side of [a] coin is equally good, why then should it matter which side it falls on?” His answer is nothing more than the obvious – that a judicial bias against fathers rules out half the population of potential caregivers, many of whom would be better than their female counterparts. That necessarily means that many “children aren’t getting the best available parent,” which of course thwarts the ‘best interests’ goal.

Focused on psychology and child wellbeing as he is, Millar omits the other important answer to the anti-dad crowd – parental rights. If children’s outcomes are paramount, as they should be, and the gender of the parent is not an issue in child wellbeing, then the issue of parental rights takes on additional importance. Since children aren’t affected one way or the other, it is both morally and legally wrong to exclude one sex in favor of the other in making custody determinations.

Millar’s book deals with much more than just gender and children’s outcomes, but on that issue alone, it should result in major policy changes in the way custody decisions are made. If courts and policy makers truly place the value they claim to on the best interests of the child, they will radically change the way in which custody is decided in Canada.

But, as Millar points out, we’ve seen something like this before. In 1986, Canada passed its second Divorce Act which clearly articulated a gender-neutral approach, going so far as to remove all gendered terms such as ‘mother,’ ‘father,’ ‘husband’ and ‘wife.’ That came against a backdrop of the establishment of the Canadian Charter of Rights and Freedoms in 1982, which itself emphasized gender neutrality. But,

[p]aradoxically, the introduction of this legislation with its gender-neutrality coincided with a proportionally larger share of sole custody to the mother… The introduction of modern ideas of gender neutrality has made little discernible impact on this apparent reliance (on gender) despite a manifest policy of the gender-neutral standard that is the ‘best interests of the child.’

That paradox is explained by the fact that, coincident with the the new divorce statute, came a squall of bad research purporting to show that, in some way it was mothers – not fathers – who lost out in custody decisions. Judges were duly “educated” by same and the concept of gender neutrality, so revered in some contexts, went by the boards in that of child custody and remains there.

The point being that, however clear the case may be for equalizing maternal and paternal custody, there will always be those for whom the concept is anathema and who won’t hesitate to use bogus arguments and bogus statistics to back up their biases.

The book is “The Best Interests of Children: An Evidence-Based Approach,” University of Toronto Press, 2009. Buy one and send it to your friendly MP or Congressperson, perhaps with some key passages underlined.

Robert Franklin, Esq., is a board member of Fathers & Families, America’s largest family court reform organization. To learn more, see 

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