By now, everyone is fully aware of the ongoing debate over guardians ad litem, attorneys for minor children, and the various criticisms of judges and virtually all of the legal professionals involved in contested divorce and family matters involving children. In the legislature, bills have been passed. In the Superior Court Rules Committee, changes to the Practice Book are being drafted. Yet amidst all of this newly minted “procedure,” the essential question to be answered in every contested family matter involving a child remains the same: What is in the best interest of the child?

The essence of this question is not a matter of the constitutional rights of parents. Everyone with any knowledge of the law agrees that every parent enjoys the constitutional right of “family integrity.” But it is exactly because each of the parents has those same rights that the constitution provides absolutely no help in such cases. Unless we want our law to revert to a time when a mother or a father possessed a greater right than the other parent solely because the law once presumed mothers or fathers to be better parents, the constitutional rights of the parents offset each other.

A contested family matter is a civil case between two parents with presumptively equal constitutional rights. In a criminal case, the constitution imposes a heavy burden upon the state to prove guilt beyond a reasonable doubt because of the presumption of innocence. This presumption informs, guides, directs and influences every aspect of a criminal trial. But there is no presumption in contested family cases. Because a family matter is a “civil” (as opposed to criminal) matter, the decision-maker is left to decide based on the “preponderance of the evidence.” In other words, the law does not give one parent or the other an upper hand. The judge must consider each parent equally.

Likewise, a contested family matter is not at all like a case in which the state is seeking protective orders on behalf of a child. Again, the presumption in favor of the parent-child relationship (which is rooted in the constitution) influences all aspects of the judicial proceedings in matters where the parent is pitted against the state. But those presumptions are irrelevant in contested family cases. In short, there are no presumptions in family matters and the constitution simply doesn’t help.

Over the years, the legislature has added various “factors” to the list in Connecticut General Statutes §46b-56 that the decision-maker should consider. But those factors are merely guidelines to be considered. No single factor is dispositive and in the end, the decision-maker must decide between the competing claims of two (often very good and capable) parents based on the “best interest of the child.”

Perhaps the greatest value of adding statutory factors and improving procedures rests in the notion that the decision-maker will have a wider variety of legislatively established words, phrases, and language with which to describe how or why a custody decision was made. But, in the end, the essence of that decision is not likely to be captured fully in words. Worse yet for the parent on the receiving end of a negative decision is the unfortunate reality that if the unspoken essence of that judgment remains beyond the grasp of the decider, then that parent will not receive any better explanation upon which to justify the loss beyond the words the decision-maker has used to describe that decision after it has been made.

This applies to every professional involved in a contested custody matter who must make a decision. Whether the decision-maker is a judge, a guardian ad litem, an attorney for the child, a mental health professional, or a family relations counselor, everything stated above applies to each and every one of them. It is little wonder, therefore, that parents who have experienced the loss of cherished parental rights in contested child custody litigation are angry and upset. But the problem is not necessarily a matter of bias, incompetence, or lack of information. In cases of this nature, it is safe to say that every decision maker lacks perfect information. Moreover, as noted above, whatever words the decider uses to describe that decision will inevitably be woefully inadequate at least to one party and no amount of new rules, procedures or laws will change that.