In addition to amending the language of “best interest” factors to remove gender bias, it may be useful to consider adding clarifying language to existing factors to provide better guidance to the courts that are charged with responsibility for interpreting and applying them. For example, many states list “stability” as a “best interest” factors. Statutory language like this is incredibly vague.
Of course, case law can be consulted to ascertain the meanings of terms like these, to the extent appellate courts have addressed the issue in a way that has resulted in a more precise definition. In most states, though, vague statutory language (including but not limited to “stability”) remains subject to vastly different interpretations among individual trial court judges.
There seems to be a consensus among judges that stability means at least geographic stability. The thinking is that a permanent family home generally is better for children than a transient one is. Some judges measure stability along other axes, too, though. For example, a judge may interpret it to mean, in addition to residing in one location for a long period of time, staying in a committed relationship with another person. At one time, marriage was thought to be a more stable family arrangement than unmarried cohabitation. Some judges still think it is. Other judges apply a more liberal attitude to unmarried cohabitation. Some judges in the liberal camp ascribe importance to the number of boyfriends or girlfriends with whom an individual has cohabited, seeing it as relevant to relationship stability vel non. Others do not.
Until recently, marriage was a right that was limited to a man and a woman; same-sex marriages were not permitted. As a result, the “stability” factor had a heterosexual preference built into it. It will be interesting to see how, if at all, the legalization of same-sex marriage will impact the decision-making processes of those judges who continue to view marriage as evidence of stability.
The stability factor as a basis for denying joint physical custody
Some judges use the stability factor not only for the purpose of evaluating the relative fitness of each parent, but also to evaluate proposed custodial arrangements. This is true even when a statute only directs a judge to consider “the stability of the home environment of each parent.” Although such a statute does not specifically authorize a judge to consider stability except in relation to each parent’s home environment, judges nevertheless believe that assessing the “stability” of a proposed custodial arrangement falls within their broad discretion to consider anything that may have a bearing on what is in a child’s best interests.
Historically, judges cited the stability factor as a basis for preferring sole physical custody over joint physical custody. They cited a child’s need for stability as a reason for maximizing her time with one parent while minimizing her time with the other. Few courts gave consideration to whether maintaining regular, frequent contact with both parents ensured greater emotional or psychological stability for a child than requiring him to experience protracted periods of separation from one of his parents does.
Wisconsin has taken the lead in reforming this aspect of custody law. The legislature there has amended its “best interests” statute to require courts to consider “[t]he need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.”1 In Wisconsin, a “period of physical placement” can include time periods that would be called “visitation” in other states. The legislature seems to be instructing judges to disabuse themselves of the notion that limiting the amount of visitation with a parent enhances a child’s stability.
Logically, statutory language like this also seems to countenance a preference for joint physical custody. It certainly does not seem to encourage courts to apply a preference for sole physical custody. Since the judicial branch has an interest in retaining the broadest possible discretion for itself, however, courts are likely to construe this kind of statute narrowly. If establishing a presumption or preference for joint physical custody or equal shared parenting is the goal, the intention to do so should be set out clearly and explicitly in the statute.
My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:
- Wis. Stat. § 767.41 (5)(am)(8) (2011) ↩