Allow me to apologize. In my last two posts discussing the article in the most recent issue of The Nebraska Lawyer, I repeatedly referred to the “best interests of the child standard.” Mea culpa; it is no such thing. The BIC is no standard at all and never has been. A “standard,” after all, is some sort of known and agreed-on criterion. By contrast, the BIC is anything anyone imagines it to be. It is one thing to Judge A and another to Judge B in the courtroom next door. It is one thing to Judge A in Smith v. Smith and another to the same judge in Jones v. Jones. Whatever the BIC is, it is not a standard. I therefore make obeisance at the feet of my readers and humbly beg forgiveness.
That done, once more into the breech!
After dealing with substantive due process, the Nebraska Lawyer article proceeds to procedural due process. That’s the type of due process non-lawyers tend to think of when the term “due process” comes up. It involves things like the right to receive notice of a legal charge against one, the right to legal representation, the opportunity to make one’s case, the right to confront one’s accuser, cross-examine witnesses against one, the right to have one’s case decided by an impartial tribunal, etc.
Procedural due process also includes the idea that the state must reasonably apprise those subject to its legal jurisdiction of what behavior does and doesn’t comport with its demands. That is, statutes must be understandable to average laypeople. That of course only makes sense. One of the two most important goals of the law is to get people to behave in accordance with the needs of society. In order to achieve that goal, people must be able to readily understand how to act so as to avoid legal prohibition.
Needless to say, the term “best interests of the child” informs precisely no one of what to do or not do in order to maintain contact with one’s child post-divorce. Parents and judges alike are left in the dark about the matter, and yet hundreds of thousands of times a year, judges rule in custody and parenting time cases all the while intoning the mantra of the BIC.
In Troxel, one brief to the Supreme Court had this to say:
The best interests test has long been the subject of academic as well as judicial criticism for being indeterminate, providing little guidance on how to weigh the different needs of individual children, especially as they change over time;
It went on to cite a law review article thus:
The “best interests” standard is “a prime example of the futility of attempting to achieve perfect, individualized justice by reposing discretion in a judge. Its vagueness provides maximum incentive to those who are inclined to wrangle over custody, and it asks the judge to do what is almost impossible: evaluate the child-caring capacities of a mother and a father at a time when family relations are apt to be most distorted by the stress of separation and the divorce process itself.”
No better example of the arbitrariness of the BIC than what comes to us from Nebraska. Recall that the Legislature commissioned a study of custody outcomes both before and after an amendment to the family law of the state. One of the many remarkable findings was that parents in one part of the state received far different custody and parenting time outcomes than did parents in another part.
Surveys of child custody decisions, including the Nebraska 2002-2012 Custody Court File Research Study, show similar facts often produce vastly different outcomes. Facts that might result in joint legal custody and 50-50 parenting time in Omaha will likely result in sole legal custody and 80-20 parenting time in North Platte. These surveys show case outcomes often depend more on the judge who hears the case than the law or the facts of the case.
A survey conducted just last year of parenting time decisions by North Dakota’s judges revealed much the same thing. Is it possible that parents in one part of a state are so different from those in another? Not likely, particularly in a demographically homogenous state like North Dakota. And yet there, as in Nebraska, a parent’s chances of receiving meaningful time with their children depend, to a great degree, on where they reside.
Needless to say, that has nothing to do with the “best interests of the child.”
Finally, the U.S. Supreme Court has recently taken note of the “void for vagueness” doctrine. The case in which it did so had nothing to do with the BIC or even family law, but Justice Gorsuch’s opinion could be addressing those very things.
The implacable fact is that this isn’t your everyday ambiguous statute. It leaves the people to guess about what the law demands—and leaves judges to make it up. You cannot discern answers to any of the questions this law begets by resorting to the traditional canons of statutory interpretation. No amount of staring at the statute’s text, structure, or history will yield a clue.
It “leaves judges to make it up.” Indeed. That’s the BIC in a nutshell.