Jan. 7, 2019-Prof. Sanford Braver Responds

GCC Introduction: Prof. Sanford Braver of the University of Arizona has been researching and writing about gender equality issues for many years. We excerpt today and this coming Thursday (Jan. 10), gems from his important 2012 response to the AFCC’s Think Tank report. Opponents of ESP argue that we need individualized approaches to child custody orders. Sanford Braver disputes this:

p. 176: The report claims throughout that parenting arrangements must be “individualized,” “tailored,” “case specific,” and “case by case.” This is in some ways a self-evident truism, a no-brainer.

The agreement that one size does not fit all begets the corresponding necessity of determining with accuracy, reliability, and validity what anyone’s correct “size” is. With respect to parenting plan issues, this translates into somehow knowing what arrangement is the best fit for each individual family. How certain are we that, if we take the care and absorb the costs of individualizing, we will end up with the proper size that does fit each case well?

Page 177: Talk to family court judges, and you will find them unsure and unconfident about their sizing abilities and tools.

… legal scholars have been in the forefront of articulating alternative standards that remove both discretion and individualization.

Bottom line: much as it may be desirable, we may really not know how to properly individualize, tailor, or custom-fit parenting plans to achieve the best possible outcomes in each case. If this is true, the effort and expense and time and trouble taken in the futile pursuit of case-specific fittings come with little in the way of corresponding benefits. And, in such a case, it is better to have a rule or starting place that covers the majority of cases and families, with, of course, the ability to deviate when the fit is obviously bad.

Sanford L. Braver, The costs and pitfalls of individualizing decisions and incentivizing conflict: a comment on AFCC’s think tank: Report on shared parenting, Fam Ct Rev, Vol. 52 No. 2, April 2014, pp. 175-180