The paper examines the conflating issues arising from the law that dictates the ruling of the childs custody. It is intended to serve the best interest of the child. The literature reacts to the doctrine that moved from maternal preference to the doctrine which hands both parents equal opportunity in child custody cases. The doctrine described as best interest of the child is independent of the divorce law reforms and serves to rule in favor of a parent who can provide the child with excellent physical, psychological, environmental and emotional support. Before the move, tender year doctrine ruled in favor of the mothers as they were perceived better custodians of the children, the doctrine saw over 95% cases ruled in favor of maternal preference (Chen & Logan, 2015, pg 1). The BIOC doctrine establishes the parameters by which custody shall be awarded and does not presume which of the parent is a better fit for custody of the child.
Inconsistency in States Statutes and Actual Court Practice
Despite the transition from maternal preference to gender neutrality in every state, the inconsistency of the court ruling is observed in various states which had their statutes written in the 1970s but continued to rule in favor of maternal preference in child custody cases (Cheng & Logan, 2015, pg 7). The observation is assumed that the tender year doctrine was in the form of inherent supposition rather than legal statute. The authors view on tender year doctrine as innate is conflating with the whole process and proceedings of the court of law and the parameters formulated to substantiate a ruling. The tender year doctrine is formulated to preserve and uphold the childs stability both emotionally, physically and psychologically based on the fact that mothers are always very close with their children. If 95% of the states child custody cases were ruled in favor of maternal preference, then surely 5% was ruled against. Therefore, this statistics implies that the judges never ruled out of implicit presumption but the rule of law which dictates consideration of the mothers stability and her influence on the child.
The methods proposed to identify when the courts actually applied the gender neutral ruling in child custody cases contradicts the spirit and practice of laws formulated to initiate and uphold justice. In trying to identify the year when each state embraced gender-neutral rule, the findings would be important to establish the liberal mode of operations in the courts of law. However, shifting from maternal preference to gender neutral doctrine does not imply that ruling in favor of the former is as a result of refusing to practice the latter. Rulings are based on facts and evidence provided to the courts and the verdicts are determined depending on how well those facts were presented. Therefore, determining whether each state embraced gender neutrality doctrine, does not automatically provide child custody to the father, but, raises the possibility that male parents can be granted custody of their children. It is vital to note that maternal preference is described as tender year doctrine implying that special focus and rules are applied while solving the childs custody disputes. Numerous questions will be asked to ascertain whether the child is better off with her mother or father as the custodian in relation to the childs age.
Effect of Divorce on Children
In spite of the three doctrines of child custody discussed by the author, the childs thoughts and preferences are not highlighted. The assumption that custody of the child should be determined by the jury based on evidence presentation by both parents negatively impacts the children. It has been proved that settling of divorce and custody either empowers the mother or the father in share control of the resource (Chen & Logan, 2015, pg 15). Past studies indicate that an increase in womens share of resources in homes promotes improved child outcome and higher consumption by the children. Therefore, it is only wise to suggest that children under their fathers custody will consume less and might have a disadvantaged outcome. This statement can be supported by the fact that in intact families, it is expected that the children will have fewer resource devoted to them.
The author advocated or insinuated for the removal of maternal preference and embrace gender-neutral rule, yet, they state that removal of the tender year doctrine will demerit the women. As fathers have the better bargaining power of obtaining custody or if not, the women are liable in reallocating of the resources to the father due to gender neutral doctrine. Studies highlight that most children in divorced families spend much of their time with their mothers. Denying women of a good share of the resources are as good as denying the children. The children from divorced family have challenges in adjusting both socially and psychologically, therefore, they have low academic performance and high chances of dropping out of school.
Divorce and child custody dispute should be settled after an in-depth analysis of the prevailing conditions and what is deemed fit for the childs better upbringing. The use of either the three doctrines discussed in the article does not influence the moral implication that parents face while seeking justice to end the dispute. Therefore, no matter the doctrine applied, the moral ruling should aim to ascertain and promote the childs well-being. Despite divorce and child custody cases only designed to settle a dispute between parents, future endeavor should constitute the inclusion of the childrens input on the matter. The idea will help prepare the children psychology and they will be able to outline what they expect from their parents. It should be noted that, for proper being of the children, women should be protected by the law to own a good share that will facilitate their childrens maintenance.
Chen, Y., & Logan, T. (2015). Is the Best Interest of the Child Best for Children? Educational Attainment and Child Custody Assignment.
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