Parents Behaving Badly: Whether, in the Wake of Miller-Jenkins, Public Policy Considerations Should Play a Role in Custody Decisions

Ethan G. Kate, Northwestern University

Abstract

Miller-Jenkins v. Miller-Jenkins illustrates the dilemma facing courts in contentious custody disputes: At what point, if ever, should the best interests of one child cede to the interests of society at large? The best interests standard has become the predominant norm for settling custody disputes under both domestic and international law, yet satisfying the needs of one child can potentially establish precedent that runs counter to public policy, often forcing courts to ignore – or at least claim to ignore – these public policy considerations in order to reach a decision based on the individual child’s best interests. Undoubtedly aware of this dilemma, the Miller-Jenkins Court seemingly attempted to cloak its public policy concerns under the guise of the child’s long-term interests, thus apparently adhering strictly to a best interests analysis. Several scholars have looked at Miller-Jenkins as it relates to same-sex marriage and the domestic best interests standard to discuss whether the decision was “correct,” but few have looked at how these domestic issues interplay with foreign and international law, particularly relating to the role of public policy. This Article suggests that there are circumstances where public policy considerations ought to be considered in custody disputes. By analyzing Miller-Jenkins as it relates to other U.S. and foreign cases, this Article contextualizes the situation, showing how courts can and should attempt to resolve this dilemma. Importantly, courts should always ensure that the child at issue has the opportunity to be heard, as required by the Convention on the Rights of the Child. Specifically, this Article looks to a Canadian case factually similar to Miller-Jenkins to demonstrate how a court can thoroughly assess the psychological needs of the child before coming to a decision supported by public policy considerations. There is no doubt a balancing act that courts must perform in such cases, and there may never be a perfect solution. With better guidance, however, this Article suggests that courts such as that in Miller-Jenkins can improve their decision-making by acknowledging, rather than hiding from, external public policy considerations when necessary.