SHOULD CHILD CUSTODY AWARDS BE BASED ON PAST CARETAKING? THE EFFECT OF THE APPROXIMATION STANDARD TEN YEARS AFTER ITS ADOPTION.

Molly L. Sanders, California Western School of Law

Abstract

Proper legal standards are needed to help judges make difficult decisions regarding child custody. Standards create the framework in which individual’s bargain, so a proper legal standard can reduce litigation and hostility between parties. The current custody law in the majority of states is the generalized best interest of the child standard. Under this standard custody is determined using a non-exclusive list of factors to predict which parent will better enhance the child’s future well-being. The best interest standard has been criticized because it is a discretionary standard, which provides little guidance to judges who must then rely on their own personal values in deciding custody. For this reason there has been a trend in family law toward more objective rules of decision through the creation of objective legal presumptions. A proper presumption is needed to ensure predictable results, but also to allow for flexibility for unique cases that require exceptions. In 2000, The American Law Institute sought to change family law by publishing their Principles of the Law of Family Dissolution: Analysis and Recommendations (“Principles”). The Principles endorsed a child custody standard known as the approximation standard. Under the approximation standard the “court should allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking for the child prior to the parents’ separation….” Therefore, the Principles created an objective rebuttable presumption that awards custody according to the allocation of past caretaking. This is in the best interest of the child because it will promote continuity and stability in the child’s life.

However, the approximation standard has not achieved widespread success. To date, only three cases have specifically referenced the approximation standard, and West Virginia is the only state to officially adopt the approximation standard through legislation. It is necessary to look at the criticisms of the approximation standard, and the history of the standard in West Virginia, to determine how the standard can be improved upon if it is to significantly affect custody law.