Ampersand at Alas, A Blog, writes approvingly today about a "primary caretaker" standard for child custody, instead of the nebulous "best interests of the child" standard that is currently used. As he explains: "The idea is that in child custody cases in which one parent clearly was the child’s primary caretaker (measured by such things as who made doctor appointments for the kid, who took the kid clothes-shopping, who drove the kid to soccer practice, etc), that parent should have a presumption of custody."
There are clearly problems with the "best interests" standard, at least as currently implemented. Ampersand's post is inspired by an article by Jack Stratton, which is mostly about why abusive fathers should never have custody of their children, even if the abuse was directed at the mom rather than the kids. Stratton argues that the presumption in the courts this days is so strongly in favor of joint custody and visitation rights that men convicted of assaulting, or even murdering, their wives are generally allowed visits with their children.
But I also have some concerns about the "primary caretaker" standard. If there was a well-established standard that the primary caretaker would always get custody, I think it might discourage women from negotiating for a more even share of parenting duties. I could see mothers feeling that they had to make sure they did at least 60 or 70 percent of the caregiving, just in case. (I say 60 or 70 percent since it seems that men generally get more credit for the parenting that they do, because society's expectations are so low.)
A more extreme case is that of reverse traditional families. I'm on an email list of women who are the wage earners in families where their husbands are the primary caretakers. The topic of how this arrangement would be viewed by the courts in the case of a custody dispute has come up more than once.
It's a matter of great fear for some members that if they were divorced they'd lose custody. They would have loved to have been able to be the at-home parent, but their husbands didn't have careers that made that possible. If the primary caretaker standard was well-established, some of these women might opt to put the kids in daycare, pushing their husbands to get any job, rather than jeopardize future custody. And this is among the already small population that is currently willing to consider reverse traditional arrangements.
The bottom line is that I don't think we're ever going to come up with a nice clean rule that makes sense in all cases. Families are just too complicated and messy. There are always going to be exceptions. While I know judges don't always make the best decisions, I don't think we're really going to improve matters much by trying to replace nebulous standards and human judgement with simple rules.
(For the record, absent a psychotic break or something, I think my husband, who is the primary caregiver, would deserve primary custody if we divorced. Kain ein horeh.)