Best interests

Best interests or best interests of the child is the doctrine used by many courts in the United States and other parts of the Western world in determining a wide range of issues relating to the welfare of children. These include child custody, child support and visitation (or access, as it is called in some jurisdictions) in regard to the child or children's parents, legal guardians, and in some cases adoptive or biological parents. It is not a legal standard, and is considered a subjective doctrine because, unlike legal standards, the best interests of the child doctrine does not contain objective criteria.

Such a test may be applied either in proceedings that involve the dissolution of marriage in common-law marriages or in the context of the dissolution of a civil union. It may also be used in proceedings determining legal obligations and entitlements such as when a child is born out of wedlock, when grandparents assert rights with respect to their grandchildren, and when biological parents assert rights with respect to a child that was given up for adoption. It is the doctrine usually employed in cases regarding the potential emancipation of minors. Courts will use this doctrine when called upon to determine who should make medical decisions for a child where the parents disagree with authorities.

In determining the best interests of the child or children in the context of a separation of the parents, the court may order various investigations to be undertaken by social workers, psychologists and other forensic experts, to determine the living conditions of the child and his custodial and non-custodial parents. Parents may request or deny visitation or custody to fit their own interests, but the overriding consideration is how the child will benefit from interacting with his parents. Such issues as the stability of the child's life, links with the community, stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings.

History

The use of the best interests doctrine represented a 20th century shift in policy. The best interests doctrine has replaced the equally subjective tender years doctrine. That doctrine argued that children were not resilient and almost any change in their living situation would be detrimental to their well being.

Until the early 1900s, children were legally considered to be chattel, the personal property of the father. Therefore, the father's determinations outweighed any other person's input on decisions concerning the welfare of the child. Many states then shifted from this standard to one that completely favored the mother as caregiver. Finally, the 1970s saw the subordination of the interests of either parent (as well as that of foster parents and step-parents) to the interests of the child.

Because many courts continue to give great weight to the traditional role of the mother as a caregiver, application of this standard in custody and monetary disputes has historically tended to favor the mother. This has led fathers rights advocates to derisively assert that the standard really means "the best interests of the mother", and to contend that fathers are arbitrarily deemed to be less capable of caring for and nurturing their children.

The "best interests of the child" doctrine is sometimes used in cases where non-parents, such as grandparents, ask a court to order non-parent visitation with a child. Some parents say that using the "best interests of the child" doctrine in non-parent visitation cases fails to protect a fit parent's fundamental right to raise their child in the manner they see fit. Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 LEd2d 49 (2000).

Reference

• Jill Elaine Hasday, The Canon of Family Law, Stanford Law Review, Vol. 57 (December, 2004), p. 825-900.
• Mary Ann Mason, From Father’s Property To Children’s Rights, A History of Child Custody (http://www.grad.berkeley.edu/deans/mason/booksfathersintroduction.shtml)

External links

• Common Sense Divorce and Custody Information (http://divorce.travishubbard.net) - Free information about divorce.