I learned from a recent article in the Wall Street Journal that the states of New York and Washington are considering legislation that would require judges in divorce cases to award custodial and visitation time equally between parents unless it could be demonstrated that the arrangement would not be “in the best interests of the child (“ Big Shift Pushed in Custody Disputes,” by Ashby Jones, Wall Street Journal, April 16, 2015).

Although judges are no longer bound to making decisions that reflect the old notion that children should stay close their mothers during the “tender years” of infancy and toddlerhood, their decisions have apparently not kept pace with the current trend toward shared parenting and the broadening role of fathers in childrearing.

Although I am sure there are many fathers who have not been fairly treated by custody and visitation decisions, my fear is that too many decisions have been made that are not in the best interests of the child regardless of whether both parents were treated equally. For example, I have seen amicable divorce settlements result in an arrangement in which the child spends up to 10 or 12 hours a week in a car shuttling back and forth between homes and/or losing 1 or 2 hours of sleep every other night for the sake of parental equality and satisfaction. While these compromises may not have seemed like a big deal to the adults dictating the arrangement, from my perspective as a pediatrician they are unhealthy and unfair to the child.

There are scores of other custody and visitation arrangements in which the costs to the child are less obvious, but are nonetheless detrimental to the health and well-being of the child. Some arrangements that worked well for all parties when the child was a toddler may no longer give the child enough time for his interests and activities as he approaches middle school. Unfortunately, all too often, a parent may be hesitant to give up his or her hard-fought custody to accommodate these inevitable but unpredictable maturational changes.

Of course, there are thousands of situations in which parents who are keenly aware have considered the best interests of the child in crafting and adjusting their post-divorce schedules. The problem is that we need a system that guarantees that when divorces and separations occur, decisions are made that are truly in the best interests of the child.

There are judges who by training or because they possess an innate sensitivity do render decisions that truly reflect and accommodate the needs of the child. But there is no guarantee that the judge or mediator will put enough thought into the child’s situation. In rare cases, the court may appoint a guardian ad litem (also known as court-appointed special advocates [CASA]) to represent the child. Unfortunately, in my experience, this option is seldom used because of cost concerns and because lawyers are hesitant to give up any of their own turf. I also have been surprised and disappointed by how little experience and job-specific training some of these guardians ad litem have received. Some seem simply to be underemployed lawyers.

As most of you are painfully aware, in the absence of a legal mechanism to speak for the child, the task often falls into the lap of the child’s pediatrician. This can put the physician in an uncomfortable position. The pediatrician may be asked by one parent or his or her lawyer to make a statement about the appropriateness of a proposed custody arrangement. Without knowing all the facts, or at least hearing the other parent’s side of the story, rendering an opinion can be risky business. It is very likely to not sit well with one or both parents. While our perspective may be valuable, who is going to pay for the time it takes for us to gather the information necessary to render a quality decision?

The perfect system would assign a guardian ad litem for every child in a separating or divorcing family. That individual should be well trained specifically for that role and encouraged to consult and fairly reimburse the child’s pediatrician in the cases in which a child-appropriate arrangement may not be obvious. That arrangement should be reviewed every few years by the guardian ad litem to ensure it continues to be in the child’s best interest. It would be an expensive system and the lawyers wouldn’t like it because it would diminish their role, but children of divorce deserve a seat at the table and a voice to speak for them.

Dr. Wilkoff practiced primary care pediatrics in Brunswick, Maine, for nearly 40 years. He has authored several books on behavioral pediatrics, including “Coping with a Picky Eater.” E-mail him at pdnews@frontlinemedcom.com .


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