I was preparing for trial in a case in which my client was seeking primary custody of his eight-year-old son. Vladimir came to my office carrying a plastic bag filled with the clothes Nikolay had been wearing when he picked him up from school. Vlad was convinced that the contents of this bag would constitute airtight proof that his ex-wife was a totally unfit mother. The bag included a pair of mismatched red socks with holes in the toes, a navy blue sweatshirt with frayed cuffs, dirty gray sweatpants, which he said were too short for the kid, and what Vlad considered the pièce de résistance: a pair of worn-down slip-on sneakers. “Look!” he said. “Not real shoes! She make child wear slippers to school!”
All I could think of, combing through the sad, wrinkled bag of little-boy clothes, was the long list of inappropriate outfits my children had worn to school over the years. I thought about the judge deciding Nikolay’s custody case, who happened to be a woman with a young son of her own, and wondered if her reaction would be similar to mine. Vladimir had legitimate concerns about his child not succeeding in school due to a way too casual attitude on the mother’s part about regular attendance and homework. But the complaint about the sneakers, I felt certain, would make him look petty, so I nixed the slip-on shoes, but reluctantly entered the clothes into evidence.
The basic legal standard applied to child custody cases in every jurisdiction in the United States is “best interest of the child.” But in the final analysis it comes down to a subjective decision by a judge (child custody cases are almost never heard by juries) about parenting. Often, they rely on the faulty syllogism: I was raised this or that way, I turned out great (I’m a judge!), therefore all children raised this or that way will do fine. But they may not be as up to date with the latest parenting trends, particularly attachment parenting. And those trends may conflict with existing family law.
Breastfeeding is a great example. It’s pretty well accepted by the courts as a medical truth that breastfeeding has major health benefits for children. It is also the stated policy of the Commonwealth of Pennsylvania, the state where I practice, that children, including infants, benefit from spending time with both parents. Breastfeeding frequently and spending long periods of time with Dad are mutually exclusive. The judge is very likely to pull from his own knowledge about breastfeeding, which may be little to none, and his or her awareness of cultural norms. At this point on the cultural continuum, the mother who says her four-month old cannot be away from her for more than two hours at a time because that’s how often he nurses and he won’t take a bottle will be pretty convincing, and that will likely drive the custody schedule, meaning that Dad may get only two-hour visits for a while.
What about when the kid is eighteen months old and still nursing? By now, he’s obviously eating solid food as well, but suppose Mom says he can’t stay overnight with Dad because he needs to nurse in the middle of the night and she has difficulty pumping, and her milk supply will suffer. What’s best for the kid then, more breast milk or more time with his father? Jump ahead fourteen months and the kid is now three. Is Mom weird because she’s still breastfeeding a three-year-old or just making a legitimate parenting choice that, although uncommon in contemporary North American culture, should be protected by the court? And what if protecting it by the court means that Dad isn’t able to take the three-year-old to visit his family in California for a week because that would have the effect of forcibly weaning the child?
(MORE: Are You Mom Enough? TIME’s famous breast-feeding cover)
Co-sleeping is another one of these issues. We all know that parents’ sharing a bed with their children is the norm in much of the world, but it is not, apparently, in the small segment from which most contemporary American judges hail. I have had a number of cases in which clients wanted me to introduce evidence of the other parent sleeping with a child to show bad parenting. If it’s a one-year-old, nobody thinks it’s inappropriate, and if it’s a thirteen-year-old sleeping with the opposite-sex parent, pretty much everybody does. In between however, it’s hard to know where to draw the line.
Take a four-year-old girl sleeping in bed with her father during his custodial weekends. It seems logical to me that a child who hasn’t seen her father for maybe ten days, and is not sleeping in her normal bed, would want to sleep with him for comfort and connection. But I have learned, because this particular issue comes up with great frequency, that my view of co-sleeping with young kids as positive or, at worst, benign, is definitely not shared by most of the judiciary before whom I appear. If a client wants me to raise that issue with the judge, I will let her explain her concerns in court and gauge the judicial reaction to see how far to press that particular button.
Supreme Court Justice Sonia Sotomayor once said, “ . . . in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought . . . [t]he aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”
And that’s the tension. If I expect a judge to call on his or her reservoir of knowledge and common sense, that reservoir will almost surely be different for a single working mother judge than for a male judge whose wife does the vast majority of childcare. That male judge has to be willing to be educated about something of which he lacks firsthand knowledge, and that female judge has to be willing to put aside feelings that might be particular to her own experience. And both of them need to be able to tell the difference between when a parenting practice is actually harmful, or when it is simply uncommon. Where’s the line – and when do judges cross it – between drawing on the wisdom of life experience and inappropriately imposing their own ideas of cultural norms? It’s a delicate balancing act, for sure; hard to get right and easy to stumble.