Negotiation is the most common method of resolving child custody disputes. The majority of divorces are contested between the parties and it is never clear at the beginning of the divorce proceedings how arrangements between the parties concerning child custody are likely to be resolved. It may be the result of the financial position of each of the parties or the need to find a solution quickly before going to trial. The outcome could depend upon the persuasive methods of divorce advocates of simply the personalities of the parties to the divorce. Prior to the extended codification of the child custody and child support system, the determination was left up to judicial discretion to interpret what would be in the 'best interests of the children' which has always been recognized as a certain vague nebulous notification requiring guidance and clarification.
The factors that could have a bearing on the interpretation of the term 'best interests of the child' were the relationships of the parties to the divorce to the children, the status of arguments over parental rights, adoption, child custody contracts and other marriages. There were a number of states that also have or had a preference preference rule when deciding whether it was in the best interests of the children to grant custody to the mother or the father of the children. Gradually, with the introduction of the Uniform Marriage and Divorce legislation, states began to create detailed statutes which eroded judicial discretion and replaced it with a set of formulaic rules that defined how a judge must make an award in relation to what is in the best interests of the child. This legislation often emphasizes the need to consider with wishes of the children, the quality of the existing relationships between the children and their parents and relationships with other family members.
Parenting plans are now also a major tool which is used by courts in an attempt to establish some level of certainty and assurance in relation to family law matters. There are now common requirements for lawyers to prepare parenting plans and in many cases to make tactical plans for the conduct of matters based on the assumption of the need to comply with complex and detailed statutes. The reason for this is that judges now need to review these types of documents in the course of making their decisions about child custody. The positive effect of this highly detailed and complex system is that where expressions of bias are made, they are at least open to scrutiny.