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The Inevitability of Discretion: What Proponents of Parenting Time Guidelines Can Learn From Thirty Years of Federal Sentencing Guidelines


For decades, the prevailing standard for a judge making a decision regarding parenting time has been “the best interest of the child.” That standard grants substantial discretion to the trial court judge—perhaps more discretion than in any other area of the law. Because the high degree of discretion may render inconsistent and unpredictable results, the standard has been widely criticized.

In the past half century, federal sentencing has undergone similar scrutiny. The Federal Sentencing Guidelines—“the most controversial and disliked sentencing reform initiative in U.S. history”—have substantially curtailed judicial discretion in an effort to achieve uniformity in sentencing. Several states have explored limiting judicial discretion in the area of parenting time by a mechanism appropriate for comparison to the federal sentencing guidelines—parenting time guidelines. Both involve “whole person” adjudication, and both purport to pronounce a result governing an individual’s future based on predetermined classifications and categories. This Article advocates rejection of parenting time guidelines. Instead, modest limitations on the discretion afforded by the best interest standard cannot only address the concerns of its critics but also preserve a judge’s ability to make individualized case-by-case determinations regarding a child’s best interest.

This Article makes its case by applying observations regarding the evolution of federal sentencing guidelines to the concept of parenting time guidelines. The development of the federal sentencing guidelines shows that a guidelines approach to judicial decision-making comes with significant sacrifice, likely to the guidelines’ very purpose. Federal sentencing guidelines came with a sacrifice of the purposes of punish-ment, and parenting time guidelines will come with a sacrifice to the best interest of some children. Every family situation is different, and every child deserves the careful case-by-case deliberation of a judge as to the child’s best interest.