This Comment evaluates the empirical evidence from social science studies to demonstrate that there is currently a sturdy body of social science research to justify using tangible evidence to define terms in the California Family Code, the California Family Courts, and beyond. Because the standard for custody determinations in California is the “best interest of the child” per the state’s legislation, social science research provides a vehicle that can define the “best interest of the child standard.” This Comment argues that this can be done empirically by calculating the minimum amount of time a child—in the aggregate— needs with each parent during a two-week period in order to have an optimal opportunity for successful development. Including this calculation in either the statutes or as a judicial bright-line rule would offer a starting point to apply the best interest of the child standard as a matter of policy in all family court proceedings. This Comment prefers this approach for matters involving children over the current method of determining parenting plans on a case-by-case basis using evidentiary proceedings in contested litigation. Additionally, the empirically supported demarcation is a baseline of how much time children need with each parent to maximally benefit during their developmental years and this Comment argues that it should be instituted as a rebuttable presumption in any proceedings involving children. Moreover, the empirically supported demarcation would provide much-needed clarity to parents, attorneys, and judges from the present, disjointed approach that contains neither adequate legislative regulation nor judicial bright-line rules.
Part I identifies the issues that confuse parents, lawyers, and judges and examines how social science can provide clarity. A discussion of terminology follows. Part II discusses examples of how social science research findings have influenced both legislative and judicial processes as well as discusses limitations of social science methodologies and models. Part III explores the development of the best interest of the child standard, California’s implementation of it, and the shortcomings of the current usage. Finally, Part IV provides a detailed exposition of the germane social science research findings about children having maximum contact with both of their parents.
Bringing Specificity to Child Custody Provisions in California, 49 Golden Gate U. L. Rev. 141