Question: My ex-husband and I were married in 1993, separated in 1998, got back together in 2001, and have separated again. We are now in a custody fight over our daughter, age seven. I agreed to joint custody when we first separated because my lawyer told me this was the best thing, but it didn’t work out because my husband and I couldn’t get along. We went to counseling and reconciled for a short time. Now he is trying to get sole custody. Both he and I work, and my new lawyer tells me this will be a close case, and that I will have to hire a psychologist, like my husband did, to help prove my case. The fees will be astronomical. I can’t understand how I got to this point.

Answer: First of all, the 2000's are far different than the 1950's and 1960's, when Mom generally stayed at home with the children and Dad worked. Today, instead of almost a presumption that a child of "tender years" will stay with Mom (unless she is proven to be unfit), custody contests involve multiple factors that make up the test called "the best interests of the child."

But because there is no set standard, custody decisions are, for the most part, based on the discretion of the judge who hears the case. The case is based on the evidence that is presented, which often includes psychological testimony. In effect, this means that two judges could come up with two different decisions based on the same facts and evidence -- even though neither of the parents is unfit.

Because cases have no real outcome predictability, some say that litigation tends to become even more bitter and expensive. In an effort to provide some predictability in custody cases, the American Law Institute (ALI) has proposed standards that would require courts to look at historical family caregiving data to establish how the parents cared for the child before the breakup. Then, using these findings as a guide for allocating "custodial responsibility" at divorce, the court would be free to alter the allocation based on such factors as the child's preference, the need to keep siblings together, and avoiding impractical arrangements. These principles would also apply to third persons – that is, grandparents and others – by limiting the ability to make a claim for custody to those who have actually been a caretaker for the child.

Those who support the ALI's approach contend that by considering the historical caretaking patterns of each parent, the court will be dealing with concrete facts rather than subjective theories, and therefore, will more properly promote the best interests of the child without resorting to expert testimony. This, they say, will make it easier for parents – and their lawyers – to predict the outcome of a case and, therefore, promote more settlements.

ALI's Principles of Law of Family Dissolution are being compared to legislation that has attempted to standardize sentencing in criminal cases; however, we believe it will be difficult to convince state legislatures to enact these principles. For more information, contact the American Bar Association's Family Law Section and order Volume 36, No. 1, Spring 2002 Family Law Quarterly, which is devoted to this and other topics.