Judges Complaints

"The attempt to determine which parent is the better child custodian depends on such fine–grained distinctions as to make this, in the context of a custody dispute, a choice between two essentially indistinguishable alternatives, between Tweedle–Dee and Tweedle–Dum" (Burt 1982).  

The judge in a family court case generally is presented with much highly conflicting evidence. This often includes conflicting testimony of the two parents as to events that only they have witnessed and the testimony of the child who may have been influenced by parental persuasion, bribery or coercion.  The parents’ self-serving statements as to their intentions add to the problem.  Moreover, the custody determination must be made at a time when reliable evaluation of the parents by the judge or mental health professionals is difficult, if not impossible.

The fact that parents are being evaluated during the divorce period is likely to cause them to behave differently than they would under normal circumstances’ further complicating the evaluation. The diagnostic and therapeutic skills of the behavioural professional are often badly distorted in the divorce setting.  In any case the search for the better custodian is a meaningless exercise since both parents are important for the psychological development of the child (Warshak 1992). 

The inability of a judge to determine the best interests of the child in the typical custody case is described by Chief Judge Hood of the District of Columbia Court of Appeals in Coles v Coles (Coles verses Coles (204 A. 2d D C 1964).  The trial was reported in over 2000 pages of transcript, and “all phases of the backgrounds and lives of the parties were fully explored.” Judge Hood states:

The best interests of the child principle is easily stated but its application in a particular case presents one of the heaviest burdens that can be placed on a trial judge. Out of a maze of conflicting testimony which one court called ‘a tolerable amount of perjury’ the judge must make a decision, which will inevitably affect materially the future n innocent child. In making his decision... the judge must endeavour to look into the future and decide that the life of a child’s best interests will be served if committed to the mother or the father...When the judge makes his decision, he has no assurance that his decision is the right one. He can only hope that he is right. He realises that another equally able and conscientious judge might have arrived at a different decision on the same evidence.

The requirements of the Family Law Act ‘that the court must regard the best interests of the child as the paramount consideration’ has traditionally presented decision makers with the problem that it is for easier to state them to define. The difficulties inherent with the best interests principle and the scepticism about its usefulness have been the subject of comments of even the High Court Of Australia.  See for example, Secretary, Department Of Health And Community Services v JWB & SWB (1992) FLC 92,293 at 79, 191 per Brennan J:

It must be remembered that in the absence of legal rules or a hierarchy of values the best interests approach depends on the values of the decisionmaker. Absent any rule or guideline that approach creates an unexaminable discretion in the repository of the power.

Despite these concerns the best interests standard should not be abandoned.  Though it is beyond the ability of a judge to balance all of the probabilities concerning future living situations of the child, the judge will have the basis for making the custody decision in some cases.  The problem with the bycase rule, is not the best interest of the child can never be determined, but that the casebycase rule incorrectly assumes that the child’s best interests can always be determined. 

It is argued what is needed is a rule that will establish a preference for the care taking arrangement that generally will be in the best interests of children, but one that can be overcome when a parent is able to clearly establish that another arrangement would be better for the child.  Such a preferred care giving arrangement would go into effect without litigation unless one of the parents believed that he or she had sufficient evidence to establish clearly that a different arrangement would be in the best interests of the child.  Litigation would usually occur only in those cases in which the result of the litigation might benefit the child.

Although the Family Court could independently establish joint residence as the preferred method of resolving parenting decisions within the present statutory framework, a new statute is desirable. Such a clear legislative mandate would enhance the public’s acceptance of joint residence and make it easier for courts and parents to consider applying.


Burt R (1982). Experts, Custody Disputes & Legal Fantasies. Psychiatric Hospital. 14

Warshak R. A (1992). The Custody Revolution: The Father Factor and The Motherhood Mystique. Simon & Schuster: New York. 

Coles verses Coles. 204 A. 2d D C 1964 


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