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Certainly one of the most difficult aspects of divorce litigation is resolving disputes concerning children. Judges do not like to make these decisions and, for many reasons, attorneys also prefer not to litigate them. This results in most child custody disputes being resolved outside of the courtroom, but in the “shadow of the law” that would otherwise guide judges in making their decisions. These guidelines developed through laws and the cases that interpret them are often phrased in terms of “the best interest of the child.” Revisions to child custody law are a long-term effort While the standard sounds appealing, it has come under increasing criticism because of its indeterminacy and the vast discretion it vests in trial judges. Efforts to revise child custody law have been almost continuous since the founding of the country, leading us from a paternal presumption (the common law rule) to a maternal “tender years presumption” to a preference for shared or joint custody. Most recently, the American Law Institute finished its decade-long review of principles that guide decision-making in dissolution cases. The institute’s principles are not a restatement of the law; they are rather a carefully considered approach by judges, legal academics and practitioners as to what the law should look like. In this column we will highlight some of those principles as they pertain to child custody and attempt to predict what influence they will have on the divorce attorney’s practice. At the heart of the principles is the parenting plan. The plan is an individualized and customized set of custodial and decision-making arrangements for a child whose parents do not live together. Under the principles, parents are required to file a plan with the court either jointly if they are in agreement or separately if not. The court must accept a jointly filed plan except where the court finds that the agreement was not knowing or voluntary or where it would be harmful to the child. If the parents do not agree, the court will review and consider the separately filed plans in order to issue its own plan for the child. The plan is to be detailed and comprehensive, describing how the child is to be cared for after the dissolution. The principles envision that the preparation of the plan will require parents to consider in advance the changes that will be necessary when they are living in different homes and to prepare for them. It is to be hoped that such plans will include a nonjudicial mechanism for resolving post-divorce disputes concerning children. Proponents of mandatory parenting plans claim that such preparation places responsibility on parents to come up with the best situation for their child as well as to reduce post-divorce conflict. Some states currently require parenting plans when there will be joint custody, while a smaller number require them in all cases. One concern sometimes raised by practicing attorneys involves the timing of the submission. A requirement that the plans be submitted early in the process may not give parents adequate time to think through the changes that will be necessitated by living in two houses. The widespread adoption of a parenting-plan requirement is likely to have a significant impact on the divorce lawyer’s practice. Probably the most significant change proposed by the law institute’s principles relates to the standard to be employed by judges in making custody determinations when the parents cannot agree. The principles would replace the traditional open-ended “best interest” standard with one that approximates the child-care and nurturing arrangements that existed before the parents were separated. The rejection of the “best interest” standard is based on several rationales. First, the standard is too subjective, making predictions about outcome difficult. This uncertainty undermines the goal of voluntary parental resolution as each parent opts to take his or her chances for a successful judicial outcome. It is also suggested that the “best interests” standard requires comparisons between parenting styles that are not appropriate for judicial inquiry. The use of predivorce arrangements as the standard is also more likely to reflect the parents’ choices about what worked best for their family when they were not facing the emotional upheaval connected to the divorce and it offers more stability for the child. Finally, such a standard would reduce the need for litigation that is not only costly but tends to polarize the conflict and consequently impede the post-divorce parental cooperation that is so important to the child’s emotional well-being. There are several qualifications to the use of the “approximation” standard. The principles weigh in favor of accommodating the preferences of older children on the basis that they are entitled to have a say in their future. It is also based on the assumption that forcing older children to adjust to arrangements they are clearly opposed to is often unrealistic and probably counterproductive. The standards also include the common preference for keeping siblings together. The court should also take into account logistical matters such as the distance between the parents’ homes and how it will affect daily scheduling. Not surprisingly, the principles allow a court to depart from the “approximation” standard to avoid substantial and almost certain harm to the child. Finally, reflecting current trends in both the statutory and case law of many jurisdictions, the principles prohibit consideration of race, ethnicity, sex and sexual orientation in making custody determinations. The principles also apply the “nexus” standard to the importance of religion or sexual conduct by allowing considerations of those factors only when the child would be harmed. A parent’s financial resources are to be considered only in the context of whether otherwise appropriate custodial arrangement would be feasible. The adoption of this standard would represent a monumental change in the law as currently only a few states use this approach. Critics suggest that the standard does not adequately take into account that the post-divorce world of the child will be very different from that experienced in the intact family and that therefore the predivorce arrangement does not necessarily reflect what will be best for the child in the reconstituted family situation. Whether or not it will have a significant impact on the way child custody disputes will be resolved remains to be seen as some practitioners suggest that changes in the substantive law regarding child custody often have little impact on the way clients make decisions. These practitioners suggest that parents are more likely to be influenced by family members and by their emotions rather than by the law. They are, however, clearly influenced by the advice of their attorneys, who, it is to be hoped, will have some opportunity to influence these substantive changes in the law. Another area of great interest to practitioners is the modification of existing custody orders. Guidelines for determining where modification should occur are difficult. Children should be provided with stability, but too rigid a standard for allowing change may result in accommodations not being made that would be in the best interest of the child. The American Law Institute’s principles resolve this dilemma by suggesting different standards for modification depending upon the nature of the request. For changes that do not significantly threaten stability, the party requesting the modification would not have to meet the traditional “changed circumstances” standard. These would include changes agreed to by the parents, changes that reflect the actual circumstances that exist (as opposed to those that were agreed to but not implemented after the divorce), changes that are minor or that reflect the reasonable and firm preferences of an older child. For other changes there must be a showing of a substantial change in circumstances that makes modification necessary to protect the child’s welfare or to prevent harm to the child. Perhaps the most interesting aspect of the modification standard is its exclusion of certain circumstances from those that qualify for grounds for modification. These would include a parent’s involuntary loss of income, a parent’s remarriage or cohabitation or a parent’s choice of reasonable caretaking arrangements for the child, including the child’s placement in day care. It is anticipated that the adoption of this provision would significantly reduce the number of modifications filed, as these are some of the most common grounds upon which parents currently seek modifications. A difficult circumstance: notice to relocate In a separate section, the principles address one of the most difficult modification circumstances that occurs when one parent wishes to relocate with a child. Like many existing state statutes, the proposed principle requires notification to the other parent of intent to relocate. Reflecting the trend in relocation law, the principles allow for the custodial parent to move with the child if that parent shows that the relocation is for a valid purpose, in good faith and to a location that is reasonable in light of the purpose. The proposed rule goes beyond many existing statutes by further defining valid purposes to include a desire to be close to significant family or other sources of support; to address significant health problems; to protect the safety of the child or another member of the child’s household from a significant risk of harm; to pursue a significant employment or educational opportunity; to be with one’s spouse or domestic partner who lives in the new location or is pursuing a significant employment or educational opportunity in the new location; or to improve significantly the family’s quality of life. This further clarification of valid purposes should have the result of greater predictability, making the attorney’s job as advisor easier. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y., and is president-elect of the American Academy of Matrimonial Lawyers; Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City.

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