The Approximation Rule Survey: The American Law Institute’s Proposed Reform Misses the Target

The American Law Institute (ALI) proposed that in contested physical custody cases, the court should allocate to each parent a proportion of the child’s time that approximates the proportion of time each spent performing caretaking functions in the past. The rule is intended to function as a default presumption in disputes decided by a court and as a backdrop for pre-trial negotiations. Proponents of the approximation rule assume that the adoption of the rule, by providing an objective, easy to measure criterion to predict the outcome of trials, would simplify, expedite, and reduce the incidence of child custody trials and reduce manipulative behavior in settlement negotiations. ALI proposed that certain exceptions would overcome the past caretaking rule and allow the court discretion to conduct a best-interests analysis. Examples of such exceptions are a gross disparity in parenting ability or quality of emotional attachment, or a child’s firm and reasonable preferences.

This article reports the results of the first survey of lawyers and child custody evaluators regarding the approximation rule. According to the attorneys and child custody evaluators who responded to this survey, the ALI’s assumptions are unwarranted. The survey respondents believe that if the approximation rule were governing their last custody trial the rule would have triggered disputes about how much time each parent invested in past caretaking. Also, the exceptions to the rule were the precise issues that were disputed in the case. Thus, according to the survey respondents’ experiences, the rule would not accomplish its goals with respect to trials and negotiations.

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This item is included in the Child Custody & Divorce Collection.