Dismantle the Family Court Fantasy: Let Parents and Kids Decide Custody

Family Courts are a relic of good intentions gone awry—riddled with bias, inconsistent rulings, and sanctimonious decisions about “moral character,” all cloaked under the noble banner of “best interest of the child.” But let’s call it what it is: a savior complex masquerading as justice. Judges play white knights, tilting at windmills like Don Quixote, conjuring villains out of parents to justify their starring role in a custody drama no one asked for. It’s time to strip them of this power. Family Courts should be effectively eliminated from custody decisions except where a preponderance of evidence shows legal neglect or abuse. Absent that, courts must order joint custody—unless parents agree otherwise or kids choose differently. Parents, and sometimes their children, should hold the reins, not robed crusaders.

The “Best Interest” Lie

The “best interest of the child” sounds unimpeachable—who wouldn’t want what’s best for kids? But in practice, it’s a catch-all for judicial whimsy. One judge deems a parent unfit for working long hours; another punishes a tattooed mom for “questionable morals.” Bias seeps in—wealthy parents get nods, outspoken ones get scolded—all under a vague standard that shifts with the gavel. Inconsistent rulings are the norm: joint custody here, sole custody there, based less on evidence than on a judge’s mood or personal creed. This isn’t justice; it’s a lottery.

Worse, it’s a fantasy. Courts cast themselves as saviors, swooping in to rescue kids from parents painted as ogres. But most parents aren’t villains—they’re just people, flawed and fumbling, trying to raise their kids post-divorce. The “best interest” doctrine isn’t about kids—it’s about judges needing a dragon to slay. Without a grand narrative of peril, their role shrinks to what it should be: a referee, not a knight. Tilting at windmills doesn’t save children; it traps them in a system that thrives on conflict.

Joint Custody as the Default

Absent legal neglect or abuse—defined by state law as failures so severe they’d warrant terminating rights (think starvation, not missed bedtimes)—courts should have one job: order joint custody. Equal time, equal say, no debate. This isn’t about forcing kids into a ping-pong life; it’s about trusting that both parents matter unless proven otherwise. In intact families, the state doesn’t pick a “better” parent without cause—divorce shouldn’t invent that power. A preponderance of evidence—solid proof, not hunches—should be the only bar to joint custody. No “moral character” lectures, no “lifestyle” judgments—just facts of harm, or nothing.

Why joint? It’s the natural baseline. Kids deserve both parents, and parents deserve their kids, unless one’s a danger. The current system lets courts meddle with vague “best interest” excuses—too much conflict, too little money, too weird a haircut. That’s not their call. If parents agree to something else (sole custody, visitation), fine—let them sign off and move on. But without that, or absent abuse, joint custody should be mandatory. No savior complex required.

Parents and Kids, Not Courts

Parents should have the right to petition for joint custody at any time—period. Life changes: a job shifts, a relationship mends, a kid’s needs evolve. Why wait for a judge’s blessing? If one parent wants equal time, courts should grant it unless the other proves legal neglect or abuse. No “material change in circumstances” hoop-jumping—just a simple ask, honored by default. This cuts through the red tape, sidelining judicial gatekeepers who thrive on overcomplicating family matters.

Better yet, let kids decide. In a system prioritizing child autonomy, a parent could petition on behalf of their child—say, an eight-year-old who wants both homes or a 12-year-old crafting their own plan. If kids opt out of joint custody (e.g., picking one parent or custom visitation), courts should respect that, stepping in only for proven harm. This flips the script: parents and kids negotiate, not judges. A parent might say, “She wants us both—let’s make it work,” and the court’s role shrinks to a rubber stamp. No windmills to tilt at—just a family sorting itself out.

No Support, No Strings

Eliminating child support payments, as I’ve argued in this companion piece, turbocharges this vision. When money’s off the table, custody isn’t a financial game—parents aren’t fighting to “win” support or dodge it. Kids choose based on love, comfort, or fit, not who’s bankrolled by the other. A parent petitioning for joint custody isn’t chasing cash; they’re chasing time. A child picking joint or sole isn’t swayed by economics—they’re free to follow their heart. Courts lose their leverage to play hero when wallets aren’t in play.

The Real Risks—and Why They’re Worth It

Critics will howl: what about vulnerable kids, biased parents, or messy logistics? Sure, a child might pick a chaotic home, or a parent might push for joint custody to spite the other. But absent legal neglect or abuse—proven, not speculated—these are natural outcomes, not judicial emergencies. Kids learn resilience figuring out a flaky parent; parents grow (or don’t) facing their role. The current system pretends courts can fix human messiness with rulings—it can’t. It just breeds resentment and legal bills. Trusting parents and kids to navigate, with joint custody as the anchor, cuts the savior fantasy and lets life unfold.

End the Don Quixote Crusade

Family Courts aren’t saving kids—they’re saving face. The “best interest” mantra justifies a power grab, turning parents into villains and judges into knights. Enough. Strip them down to their proper role: intervene only when legal neglect or abuse is proven by a preponderance of evidence—hard facts, not feelings. Otherwise, mandate joint custody unless parents or kids say no. Let parents petition anytime, for themselves or their kids, and watch the system shrink to what it should be: a last resort, not a first responder. Divorce is tough—courts don’t make it noble by tilting at windmills. Let families figure it out—they’re messier, but they’re real.