Where is the support in court rooms for student parents?

Editor Note: This opinion by student Nick Stacey shares a father’s perspective in child custody cases.

Being a student parent can be a struggle for anyone, especially if the student must navigate both classrooms and court rooms. When parents don’t agree on visitation or child raising, recourse is to use the judicial system. Since over a third of U.S. babies are born to unmarried mothers, court battles over official parenting plans, child support and child custody arrangements are more common for college student parents than ever, costing students considerable time and money.

Before a parent can even get to court, they will have to slog through a myriad of caseworkers who wield considerable power over a parent’s right to parent. While going through this struggle, I thought that I was alone, but I was surprised to find out that I was among 47% of other community college students who are also parent and many deal with the same thing.

For example, before recently moving to Oregon, I lived in California where I had a son. When I requested visitation rights, the case worker told me that “California will not separate an infant from the mother because it will cause psychological harm to the child.” I was told this despite a research consensus that custody schedules should give babies frequent contact with both parents, including overnight visitation. As Custody Change explains, the “baby should not be away from either parent for more than a few days.”

Navigating bias and best interests

The caseworker refused the visitation anyway. Neither California’s nor Oregon’s rule that custodial decisions must be made “in the best interest of a child” swayed the caseworker’s mind.

The caseworker simply used her own opinion to determine the “best interest of the child.”

How could the caseworker do this? The answer may be the subjectivity of child custodial decision making.

The best interest standard is just too vague. As Elizabeth S. Scott, the Harold R. Medina Professor of Law at Columbia University School of Law, and Robert E. Emery, the director of the Center for Children, Families, and the Law at the University of Virginia, explain, “The current way of deciding who gets custody is not good, with little science behind it.” In the absence of science, bias can flourish, specifically gender bias in these court-ordered custody arrangements. Scott and Emery also explain, in a study published by Duke Law School, “The standard’s entrenchment is the product of a gender war that has played out in legislatures and courts across the country for decades. … But domestic-violence and alienation claims are difficult to verify, and courts are often ill equipped to separate valid claims from those that are weak or false.”

California law

California law has attempted to reduce bias in child custody decisions by providing judges with a list of considerations when applying the “best interest of the child” standard. However, over 90% of child custody decisions are made without a judge, and even when the judge is involved, the list of considerations is itself inherently subjective, often encouraging bias as it allows personal beliefs and cultural norms of mediators and judges to influence custody decisions, potentially overshadowing objective assessment of a child’s real needs.

For example, the California child custody “best interest of the child” standard asks judges to consider the age and health of the child; the emotional ties between the parents and the child; the child’s ties to their school, home, and community; the ability of each parent to care for the child; any history of family violence; and any regular and ongoing substance abuse by either parent.

Challenges with vague standards

How does the judge determine at what age a child is healthy enough to be separated from a parent, especially knowing that children who are raised by a single parent tend to do more poorly in most academic and economic indicators? How can a mediator or judge accurately assess emotional ties between parents and children or a child’s ties to others? These are really complex analyses.

The vagueness of the standard isn’t the only issue. Both judges and mediators, like the rest of us, are influenced by a multitude of biases that can come into play because the standard is so vague. For example, I’ve experienced anchoring bias, where initial judgments overshadow subsequent information that should influence a custody decision. Sometimes mediators also spend disproportionate amounts of time with one parent over another, creating “unbalanced information” that biases a custody decision. Confirmation bias is another problem where mediators might draw incorrect conclusions based on incomplete evidence and the mediator’s personal bias.

The bias may best be seen, perhaps, in how infrequently fathers receive equal custody. In only 19 states do fathers get 50% of custody time. In Oregon, fathers get a little over 28% of the custody time. In California, dads get about 33% of custody.

Implementing objective standards and tools

Judicial systems need more objective standards for custody decisions such as the Family Engagement Inventory created by the U.S. Department of Health and Human Services Children’s Bureau to determine a child’s health, safety and welfare. This inventory better analyzes the quality and depth of family interactions, the effectiveness of communication among family members and the family’s overall engagement in the child’s life.

The Parent-Child Interaction Teaching scale could also be used to quantify the frequency and quality of family interactions before custody decisions are made. And use of a forensic psychologist can create a more objective parental fitness evaluation to document instances of abuse or mental health concerns with corroborative evidence. Structured family interviews should be done by psychologists using validated tools to assess the child’s preferences regarding custody, ensuring the child’s voice is accurately and objectively represented. 

Anyone influencing the child custody decision should collect and synthesize verified information on parental involvement and the child’s routines from schools, healthcare providers and extracurricular organizations, creating a report for the court that respects family privacy while offering objective data on stability and continuity.

Any parent whose ability to raise their children is influenced by the courts should insist on at least these child custody decision tools and standards. Without more objectivity, parents shouldn’t rely on the courts to make decisions that are truly in the child’s best interests.