Who Knows What Is Best for Children?: Honoring Agreements and Contracts Between Parents Who Live Apart
Professor Robert Mnookin was prescient in pointing to the conundrum judges would face in applying the “best interests” standard in the absence of a legislative definition of “best.” He called attention to this problem just as gender-neutral laws were undermining the presumption that children of “tender years” are best reared by their mother, unless she is “unfit.” Even following decades of judicial (and parental) uncertainty, law and society have failed to embrace a clear, enduring, and widely accepted definition of children’s best interests. Legislatures continue to experiment with various definitions, but these developments largely reflect tensions between fathers’ rights and mothers’ rights advocates, rather than a clear solution to the indeterminacy problem or a definitive articulation of what might be best for children.
While anticipating one huge problem, Professor Mnookin could not foresee another: the growing number of parents for whom judicial intervention would become relevant, and frequently would be requested, in the decades that followed. Separated, divorced, and never-married (whether cohabiting or not) parents with children under the age of eighteen all are potential candidates for judicial intervention in custody matters.5 Today, slightly less than half of all first marriages end within twenty years (48% for women, 44% for men),6 and close to half of children are born outside of marriage (40.8% in 2010). Moreover, only about half of unmarried parents are cohabiting at the time of childbirth, and cohabiting relationships are even more likely to dissolve than are marriages.