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Child Custody: Best Interest of the Child?

Updated on January 27, 2014

The ‘child in the middle’ is axiomatic when speaking of divorce. Though everyone can recognize the children are often caught in the middle of two bitter, angry, and vindictive parents, there is often nothing really done in practical terms to help the child. In some locations, the parents are required to go to a talk about how to keep things civil throughout the divorce so that the children do not suffer, but these programs often are only a gesture and are quite ineffective.

The reactive process that likely led to the separation and divorce in the first place is not likely to abate post-divorce. Ideally, courts would require divorcing couples to get counseling or attend a series of educational talks concerning the facts of reactive process in relationship, and how this reactive process ultimately and always negatively affect their children. Of course, if the couple had gotten counseling when they ‘smelled smoke’, their house perhaps, would not have burned down.

One or both parents often try and reassure the child that the divorce has ‘nothing to do’ with the child, and then make custody of the child and how the other parent is caring for the child a central argument in their divorce. Because of the nature of reactivity (one cannot really hide reactivity from people who are close to us), the children quickly realize that their parents have lied to them, and they are, in fact, central to the divorce.

Parents will swear that they are not causing any disaffection of the child towards the other parent (and may even believe this to be true), but by their behavior and ever so subtle comments they are doing the very same. For example, one parent calls the other, ostensibly concerning a ‘parenting’ issue, which degrades into escalation over history, and the child observes and feels the parent becoming upset by the conversation. So, in the child’s mind it goes like this: Mommy is talking to Daddy about me. Mommy is getting upset. Mommy is upset with me, and I am the one making Mommy and Daddy mad at each other.

Essentially, divorcing couples triangulate the court system into their reactive process and try to use the courts (and their children) as tools to clobber each other. Some attorneys are quite savvy at keeping the reactivity between the couple going, because as long as they do, the couple is likely to continue a series of court actions, which allows the attorney to keep getting a pay day.

Frustrated judges may at times resort to ’50-50’ custody arrangement, or succumb to this at the demand of one of the parents. And such custody arrangements are devastating to the well being of the child; they have nothing to do with the best interest of the child, only the vitriol of the parents for each other. The younger the child, the worse the 50-50 arrangement is. These 50-50 arrangements can be set up that the child is in one of the homes, literally, fifty percent of the week. Sometimes the pattern is ordered to rotate, so each parent gets the weekend as part of their fifty percent. The other version of this, which is even worse, is the child goes from one home to the other each day, spending an alternating night in each home.

Developmentally, this kind of custody arrangement is completely nonsensical. Children need consistency and routine to thrive and grow normally. A child needs to be in the same bed on every school night (Sunday through Thursday). To do otherwise is developmentally abusive to the child. 50-50 custody is far too stressful on the developing child, who worries about homework and backpacks, is disrupted by the two different household routines (not to mention often, drastically different lifestyles), sleeping in a different bed, knowing where the bathroom is in the middle of the night, missing toys and belongings for whatever home that they are not in, and the inevitably highly stressful transfer between parents (often with one or both parent’s brand new paramour glowering in the passenger seat).

Some courts allow a parent who has not seen the child for often long periods of time (months, years) to step right back in and demand (and get) visitation, without regard to how the child will emotionally and psychologically cope with this. In many cases, young children as well as teens will vocalize that they do not want to have contact with a parent who has been ‘missing’ for some time. In the case of very young children, they may not even have clear recall of the parent in question, making visitation basically visitation with a stranger. It appears clear that courts would be wise indeed to make it standard practice to require such parents to attend counseling sessions prior to any contact, to advise expectations, and to act as a safeguard of future repeats. These parents must hear why their disappearance and expectation to simply step back to the child in a parenting role is so damaging to the child.

In cases of older children in their tweens or teens, there are still judges who valiantly try to use their authority to press these children to have contact with parents that the child clearly and repeatedly states they do not want to see. This places the court in the position to legislate relationship, which is patently ridiculous. Tweens and teens are notoriously at an age where they dig in their heels. How is a 120 pound mother supposed to force her 180 pound fifteen year old son into the car to go for his court ordered visit with his father, whom the boy says is consistently intoxicated (and the mother is so highly resentful of)?

The argument frequently develops that the custodial parent is unduly influencing the tween or teen in their thinking about the other parent. Parental influence being a reality aside, in most cases, the child has a very good and legitimate reason to be angry with and resist contact with the parent. The request to the court is to force the child to visit with the resisted parent, and often, the court agrees with this and makes the order. If the child does comply with the court order, they often spend the visit either in complete gloominess, or worse, the visit becomes a reactive process that escalates and damages the parent-child relationship even more. Wiser judges may want to order the parent(s) and child into counseling that is designed to calm the reactive process and then have a change at real and lasting repair.

Issues of child custody and court actions are best served by education of judges and divorcing couples, so that the emotional and psychological dynamics of legal actions can be weighed, and alternatives explored that have the potential to be in the better interest of the child.


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