Published June 1, 2006 by Family Law Quarterly, Volume 40 Number 2, Summer 2006

Sound Research or Wishful Thinking in Child Custody Cases? Lessons from Relocation Law

by Carol Bruch

I. Introduction

Professionals who deal with specific child custody disputes surely seek to advance the children’s best interests, as do the legislators and commentators who address child custody law. Yet there is often profound disagreement about the principles that should guide them, and decision-makers are at a particular disadvantage if—as is increasingly the case—flawed research and inaccurate reviews are offered as improvements on the sound work of others. This article examines these forces in the context of relocation disputes— cases that arise when a noncustodial parent seeks to prevent the custodial parent and their children from moving. It summarizes the relevant legal issues, provides an overview of the credible U.S. research on children’s needs, and critiques the wishful thinking and mistaken analyses that threaten sound outcomes for children. Although it addresses U.S. cases and scholarship, its analysis also applies to relocation disputes elsewhere and, more broadly, to additional aspects of child custody law that require an understanding of children’s needs when their parents do not live together.

Many recent articles on the topic of child custody law in legal, interdisciplinary, and even scientific journals contain serious misstatements of the research literature. Unfortunately, the judges, lawyers and legislators who are their intended audience often lack statistical or scientific training and are unfamiliar with the scientific literature. They are, accordingly, ill-equipped to judge the quality of empirical studies or of review articles, which summarize and evaluate the work of others in the field. These difficulties may be exploited by those who “spin” the literature.

First, the authors of concern often publish exclusively or primarily in legal journals, not scientific ones.66 This avoids the rigorous peer review leading scientific journals provide to ensure scientific merit.67 Although the legal journals in which they publish test the paper’s relevance to legal debates, they usually are unable to assess scientific merit. The risk of inaccuracies is therefore real, and specialists in allied fields, who do not normally read law reviews, may never catch them.

Next, the authors make broad generalizations without providing support for them or addressing how their conclusions fit into the larger body of existing knowledge. Often they rely heavily on their own earlier characterizations of the field and cite few recognized authorities, making it difficult for nonexpert readers to distinguish fact from opinion.68

Even such basic information as research design and the statistical significance of findings may be omitted.69 Imprecise words (such as “more,” “less,” “often,” and “seldom”) appear instead, making it difficult to evaluate their assertions.70 Sometimes strikingly different results with direct implications for the topic are glossed over or lumped together in a way that conceals findings of direct relevance to the discussion. Finally, policy recommendations may be made that are totally unsupported by, or even contrary to, the data.

As the following discussion reveals, each of these deceptive techniques is now present in articles by those who wish that the findings concerning children’s relationships with their fathers were otherwise. This unfortunate pattern complicates what should be an even-handed, forthright discussion of child custody law.

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