Child’s ‘Best Interests’ Guide Judges’ Decisions : Law: Determining who gets custody is a frequently complicated procedure, and one that has evolved greatly in the past 40 years.

Children often find themselves in the middle of a tug of war when their parents get divorced.

The scene is played out thousands of times a year in courtrooms across the country: A man and a woman realize that their crumbling marriage cannot be saved, so one or each of them files for divorce. If they have children, custody becomes an issue. And when both parents want custody, the result is often an emotional battle in which their kids are caught in the cross-fire.

“Everyone thinks he or she is acting in the best interests of the child,” said Dr. Stephen P. Herman, a child and adolescent psychiatrist with a practice in Connecticut and New York. “But unfortunately, that’s not always the case.”

Acting in a child’s best interests is a legal requirement in child-custody cases. Moreover, it is being used as a guide to address emerging trends such as surrogate parents, unmarried parents, homosexual couples, frozen embryos and grandparents’ rights.

Determining a child’s best interests is a delicate and frequently complicated procedure in which lawyers, psychiatrists, psychologists and social workers all make recommendations that are considered by a judge before he or she makes a decision.

The recommendations of these experts are made after extensive interviews or counseling sessions with the parents and, usually separately, their children. Mental health experts are frequently called upon to testify for one side or the other, but sometimes the court will appoint its own expert to ensure impartial testimony. After weighing all the factors in a custody case, the judge will make a decision based on the Best Interests Standard, which has become the guide by which custody cases are decided.

The Best Interests Standard, which Herman called “the guiding presumption of the courts today,” has been in use for about 40 years and differs significantly from previous standards, in which the sex of the parent was the determining factor in almost all such cases.

“For most of civilization, children were considered the ‘property’ of the father,” Herman said. “This was laid down by Roman law and continued through the Renaissance until the last part of the 19th Century.”

By that time, children were no longer considered property; instead, they were viewed as “little people” who would be better cared for by their mothers.

“Mothers were then seen as the so-called ‘better-fit’ parents,” Herman said.

That led to the adoption of the Tender Years Doctrine, a legal standard that almost always gave custody of young children to their mothers. After the children turned 7, however, they were often returned to their fathers.

“This really could have been very disruptive,” Herman said.

For this and other reasons, notably the constitutional guarantee of equal protection under the law, the Best Interests Standard was established just after World War II and has since become what Herman called “the major trend that forms judicial opinion” in such cases.

Although judges are guided by this standard, Herman added, “there is, in fact, a strong feeling among judges that mothers are better parents, especially of younger kids.”

This, he said, is borne out by the fact that in most cases, the mother gets custody of the children. Although there is no one organization or agency that compiles nationwide custody statistics, according to Herman and other professionals interviewed for this story, they all said that mothers get custody in the vast majority of uncontested cases, perhaps as much as 90% of them.

Judge Stanley Novack, who has heard child-custody cases at Superior Court in Stamford, Conn., for the past 15 years, disagrees with Herman, saying that while mothers often get custody of their children, it is not because judges think they are better parents.

“It does work out in many cases that the mother gets the child,” Novack said. “But that is based on relationship. One of the factors to consider is, who is the psychological parent? To which parent is the child bonded? In many cases the child is bonded to his or her mother because he or she is with the mother most of the day. In that case the woman may get custody, but not simply because she is the mother.”

Novack also points out that since the institution of the Best Interests Standard, a greater number of fathers are winning custody. And he agrees with Herman that while mothers are still more likely to get custody, fathers win “a large percentage” of contested cases.

“Women win a large number of custody cases that are uncontested,” Herman said. “But when fathers decide to fight it, they win a good deal of the time. I’d say about 50%.”

Perhaps the most difficult decision a judge has to make in a custody case is whether to give one parent sole custody or to award joint custody. Novack says that there are two kinds of joint custody.

“Joint legal custody is when both parents share the decision-making about their child or children,” he said. “Joint physical custody is when both parents share blocks of time with their children.”

Joint legal custody is common in situations where the children of a divorced couple live primarily with one parent, even though the other parent may have visitation rights or has been allowed to take the children for weekends, vacations or holidays.