Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence

Lynne Marie Kohm* INTRODUCTION The best interests of the child doctrine is at once the most heralded, derided and relied upon standard in family law today. It is heralded because it espouses the best and highest standard; it is derided because it is necessarily subjective; and it is relied upon because there is nothing better. The doctrine affects the placement and disposition of children in divorce, custody, visitation, adoption, the death of a parent, illegitimacy proceedings, abuse proceedings, neglect proceedings, crime, economics, and all forms of child protective services. And in every case, a judge must decide what is “best” for any child at any time under any particular circumstance. That is a lot to ask of anyone. “In the modern era, the family courts of this country operate on the unwarranted premise that judges are capable of making fine-tuned judgments about a child’s best interests.”1 The dearth of scholarship, however, on the foundations of this best interests standard for children in American family law jurisprudence does not make the judge’s job any easier. “The best interests standard necessarily invites the judge to rely on his or her own values and biases to decide the case in whatever way the judge thinks best. Even the most basic factors are left for the judge to figure out.”2 This doctrine, so central to American family law, is of critical importance. Yet it is surrounded by a muddled legal haze of judicial confusion over just how to determine what “the best” really is. Perhaps an investigation of the basics of that doctrine can help with this conundrum. This article will examine the oldest and deepest foundations for the best interests of the child as a legal standard. It thoroughly investigates the judicial and statutory rudimentary building blocks of the best interests of the child as a legal standard, and discusses how that standard has developed and evolved over the
Lynne Marie Kohm. John Brown McCarty Professor of Family Law, Regent University School of Law. With sincere gratitude this article is made possible by a generous research stipend from the American Center for Law and Justice, and Regent University School of Law. This article tackles the question presented to me by Justice Tom Parker of the Alabama Supreme Court in his dismay of not finding a resource that clearly sets forth the foundations of the best interests of the child standard. Much gratitude for the excellent research in this article is extended to William Catoe and Eric Welsh, and to Nicholas Beckham for his insightful review and suggestions. My sincere thanks to each of these parties for making this work possible. 1 MARTIN GUGGENHEIM, WHAT’S WRONG WITH CHILDREN’S RIGHTS 173 (2005). “While the underlying ideal and rhetoric are laudable, the unfortunate reality is that the enormous amounts of time, money, and emotional energy expended in contested custody proceedings often hurt both parents and children.” Id. 2 Id. at 40.
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course of American jurisprudential history. Considering the doctrine’s foundations, this article contemplates the development of the best interests of the child (BIC) standard, and seeks to offer judges an understanding of the ancestry of the doctrine in a manner that may enlighten their decision-making process regarding children. This article does not presume to know what the best interests of any child really are, but rather it seeks to illuminate the foundations of that doctrine as a legal standard regarding children, and to show how the doctrine can become twisted by adult interests. It concludes that the best interest of the child doctrine is uniquely established in American law and has set the trend for the treatment of children throughout the rest of the world today. Its application, however flawed, may be somehow improved upon with a thorough understanding of the doctrine’s foundations which this article presents. The objective of this article is to serve judges and justices who must make decisions and analyze facts and circumstances in light of the law of the best interest standard on matters relating to children. It is offered to restore the foundations of American jurisprudence.3 Section I sets forth the initial underpinnings of the doctrine of the best interests of the child standard, tracing antiquity to Common Law tradition, the Enlightenment and modern legal reform. Here, origins of the doctrine are uncovered and analyzed. Section II examines in chronological order the Anglo American case law that established the standard in American jurisprudence, analyzing how the standard was developed, and why it became part of American family law much earlier than in any other nation. This section demonstrates a clear divergence between English law and American law in the jurisprudential development of the best interest standard. Section III discusses the concern for why or why not these foundations are used in family law today, and offers some insight to judges in their use of the BIC jurisprudence. Although family law is generally state regulated, with each state’s statutes and case law offering its own (somewhat) unique flavor to the law, states had acquired some rather universal laws regarding the family by the end of the nineteenth century, one of those being the best interests of the child standard. 4 This is indeed the legal standard for custody awards in 45 states.5 Though some historical family
Children are the future of every society, and certainly of America. When determining the best interest of a child, judges have more power in the palm of their hands than many may realize. This article seeks to give foundational guidance on using that power most judiciously in a restorative fashion. “And I will restore thy judges as at the first, and thy counselors as at the beginning: afterward thou shalt be called, The city of righteousness, the faithful city.” Isaiah 1:26 (King James) (citations to the Bible are from the King James Version unless otherwise indicated). 4 See generally MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH CENTURY AMERICA x–xii (1985). This concept of uniformity has been evident in many areas of family law, particularly those regarding children, with states often establishing and developing judicial precedent by citing authority from other states on the same subject matter. The result was that “doctrinal differences among the states became fewer over time.” Donna Schuele, Origins and Development of the Law of Parental Child Support, 27 J. FAM. L. 807 (1988–89) (describing the development of the law of parental duty in regards to child support). 5 U.S. COMMISSION ON CHILD AND FAMILY WELFARE PARENTING OUR CHILDREN: IN THE BEST INTEREST OF THE NATION (1996), available at http://www.copss.org/research/majority2.htm. “Seven of the 45 States have ‘best interests of the child’ standards that do not include any specific factors to be evaluated in
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law scholars proffer that the best interests of the child doctrine originated in this country in the 1960s,6 this article demonstrates that the best interests of the child standard became part of American family law jurisprudence in colonial era case law, and has continued to develop and be relied upon throughout our legal history. Shades of judicial legislation are seen during the early periods of developing statutory law, but unbridled judicial discretion became the pattern for best interests decision-making post 1960 when states passed broad welfare of the child statutes, providing judges simply with lists of factors, and otherwise vague allusions to judicial discretion for what is best for any given child under any given circumstances. This interplay has created an inescapable reliance upon the BIC standard that exists simultaneously with its derision because of the unfettered nature that judicial discretion has taken on in this area of family law. The doctrine, however it may be derided or heralded, is the legacy America has left to global family law. This article concludes that the doctrine of the best interests of the child is genuinely and uniquely American, and that the doctrine itself has indeed greatly influenced child law globally. The application of this standard, however, has turned toward near pure judicial discretion in contemporary judging, causing litigators and advocates to have no rule of law to rely upon. It has become apparent that at times the doctrine is used to serve the rights of adults while affording lipservice to the best interests of the child. While setting out the basis for the doctrine, this article calls for a rebuilding of the legal foundations of the best interests of the child standard according to reliable rules of law based on the notion of the child’s interests, as guarded by those who have been divinely and inalienably charged to protect those interests. The hope is that judges will use this information to wisely base legal rulings regarding children not on the judge’s own values, nor on the values of the adults bringing the case, but authentically on the foundations of the best interests of those children inherently and intrinsically vested with value and worth apart from the law. Without this underpinning, judges truly have an impossible task before them.7 This was evidenced in a 2005 Alabama Supreme
determining the best interests of the child. The determination of the best interests of the child in these States is left to judicial discretion and case law. The other States specify in statute various factors that the court should consider in determining the best interests of the child.” Id. (using Title 722.23 § 3 of the Michigan Child Custody Act of 1970 as illustrative of a state standard that lists a large number (10) of factors to direct judicial discretion). 6 See, e.g., MARY ANN MASON, FROM FATHER’S PROPERTY TO CHILDREN’S RIGHTS: THE HISTORY OF CHILD CUSTODY IN THE UNITED STATES 121–26 (1994); Joel R. Brandes, Judging the ‘Best Interests of the Child, 221 N.Y. L.J. 3 (Feb. 23, 1999), available at http://www.brandeslaw.com/child _custody/judging_best_interest.htm (citing Matter of Lincoln v. Lincoln, 24 N.Y.2d 270 (1960) as the first case using the best interests of the child standard, and reviewing the application of the BIC factors in New York based on an analysis of the “totality of the circumstances”). 7 “Even putting aside the possibility of judicial bias, judges lack a basis on which to evaluate the best interests of a particular child in the absence of guiding principles.” June Carbone, Child Custody and the Best Interests of Children—A Review of From Father’s Property To Children’s Rights: The History of Child Custody in the United States, 29 FAM. L.Q. 721, 723 (1995). In fact, in reviewing Mason’s work, Professor Carbone pulls out the final historical lesson from Mason’s book: that “the best interests principle is, although sometimes weaker, never stronger than the theoretical

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Court case reviewing a lower court’s custody ruling with seven different opinions written by six of the nine judges in the final ruling.8 Perhaps, despite the inherent difficulties in discerning what is indeed “best” for any particular child, by understanding the jurisprudential foundations of the BIC standard, judicial decision makers will be better prepared to make truly good, ideally even the best, decisions for children whose fate they hold in their hands, pens, opinions and courtrooms. II. FOUNDATIONS OF THE JURISPRUDENCE OF THE BIC STANDARD It is essential to begin any jurisprudence on children with historically traditional concepts of children and childhood in global and Western culture and their legal roots. The concept of childhood in antiquity is intriguing and conflicting when viewed as an integration of the codes of ancient civilizations: the Jewish tradition, the Greco-Roman era, and early Christianity. Ancient civilizations seem to heartily and ardently agree that children were special and deserving of protection, being the clear hope for the future. “The Master said, Respect the young,”9 and “Children. . . should be lords of the atmosphere.”10 Ancient Greece records Socratic reflections. “Did not Socrates love his own children, though he did so as a free man and as one not forgetting that the gods have the first claim on our friendship?”11 Ancient Rome records similar reflections that hint at a divine relationship between parent and child. “Nature produces a special love of offspring” and “[t]o live according to Nature is the supreme good.”12 Indeed, even “[g]reat reverence is owed to a child.”13 The value of children has waxed and waned over the centuries. Roman law placed children under the authority of both parents and country,14 in the ownership of their father.15 Children’s low social status and vulnerability during the Roman Empire was “powerfully captured in the common practice of infanticide and the
framework that underlies it.” Id. at 723. 8 Ex parte G.C. Jr. (In re G.C., Jr. v. E.B. and D.B.), 924 So.2d 651 (Ala. 2005). Writing in dissent, Justice Parker notes: I find this remarkable, because neither the applicable child-custody laws nor the relevant legal precedents appear to be particularly unclear or inconsistent. . . . After considerable reflection, I have concluded that the primary cause of the Court’s varied and often conflicting opinions in this case is disagreement over foundational issues that underlie the more visible custody issues. Id. at 674. His dissent quite competently proceeds to set out those foundations. 9 Appendix to C.S. LEWIS, ABOLITION OF MAN 101 (Simon & Schuster 1996) (1944) (quoting ILLUSTRATIONS OF THE TAO, ANCIENT CHINESE, ANALECTS ix 22). 10 Id. at 101 (quoting Hindu, Janet, i. 8). 11 Id. at 96 (quoting Greek, Epictetus, iii. 24). 12 Id. at 101 (quoting Roman, Cicero, DeOff. I.iv, and De Legibus, I. xxi). 13 Id. at 101 (quoting Roman, Juvenal, xiv.47). 14 “Part of us is claimed by our country, part by our parents, and part by our friends.” Id. at 97 (quoting Roman, Cicero, De Off. I. vii). 15 Joan B. Kelly, The Determination of Child Custody, 4 FUTURE CHILD. 121, 121 (1994), available at http://www.futureofchildren.org/usr_doc/vol4no1ART8.pdf.

17 16 . and the subsequent publication of the New Testament. hearken unto me: I will teach you the fear of the LORD. lest they be discouraged. Deuteronomy 30:19 (“[C]hoose life. 18 Deuteronomy 4:9 (“. and thy sons’ sons.”). there are at least nine references that discuss the importance of the care and protection of children. Proverbs 10:1 (“A wise son maketh a glad father: but a foolish son is the heaviness of his mother.”). he will not depart from it.”). Matthew 18:6 (decrying those who cause harm to a child). Isaiah 66:13 (“As a mother comforts her child. Psalms 78:4–6 (commanding parents to pass on their faith to following generations). 21 Matthew 7:11 (“[K]now how to give good gifts unto your children. he shall not die.17 There are at least thirteen scriptures which directly discuss exhortations to children or to parents to shape the behavior of children.”). . and their children another generation.”20 In the New Testament. It is all the more stunning.”). Proverbs 23:22 (“Hearken unto thy father that begat thee. Isaiah 11:6 (“[A]nd a little child will lead them”). .19 With the emergence of Jesus Christ’s life. 19 Among them are Deuteronomy 14:1 (“Ye are the children of the Lord. 2 Corinthians 12:14 (“[F]or the children ought not to lay up for the parents. especially girls. that you and your children may live. . all the words of this law. there are at least five scripture references that discuss the importance of the care and protection of children. Ecclesiastes 12:1 (“Remember now thy Creator in the days of thy youth.”).”). whether his work be pure. . 1 John 5:1 (“Whosoever believeth that Jesus is the Christ is born of God: and every one that loveth him that begat loveth him also that is begotten of him.”). Proverbs 23:13 (“Withhold not correction from the child: for if thou beatest him with the rod. ruling their children and their own houses well. CARROLL.”). Proverbs 20:11 (“Even a child is known by his doings. Christian scripture pronounced even more clearly the value of children in the face of cultural opposition of that time to such an idea. CHILDREN IN THE BIBLE 122 (2001) (citations omitted). Proverbs 22:6 (“Train up a child in the way he should go: and when he is old. that thou mightest still the enemy and the avenger. Proverbs 29:15 (“a child left to himself bringeth his mother to shame.”).”).”). Deuteronomy 6:7 (“And thou shalt teach [the commandments] diligently unto thy children”). but the rod of correction shall drive it far from him. that Jesus offers the child as paradigm for participation in God’s world. words and actions. Colossians 3:21 (“Fathers. provoke not your children to anger. therefore. Malachi 4:6 (“And he shall turn the heart of the fathers to the children. Jewish and Christian writers vigorously opposed these practices. but teach them thy sons. if she have brought up children.”). 1 Timothy 3:12 (“Let the deacons be the husbands of one wife. Proverbs 22:15 (“Foolishness is bound in the heart of a child.”). In the Old Testament. Deuteronomy 32:46 (“[Y]e shall command your children to observe to do. and despise not thy mother when she is old”). Deuteronomy 11:19 (“And ye shall teach [God’s words to] your children. Mark 9:37 (“Whoever welcomes a little child in my name welcomes me. Psalms 34:11 (“Come.”). ye children. ye fathers. at 121. and the heart of the children to their fathers.21 There are at least five scriptures that directly discuss shaping the behavior of JOHN T. 1 Timothy 5:10 (“Well reported of for good works. . so I will comfort you. 20 CARROLL.”).”).”). “Children have low social status and are virtually powerless. supra note 16. Joel 1:3 (“Tell ye your children of it. Ephesians 6:4 (“And. Psalms 8:2 (“Out of the mouth of babes and sucklings hast thou ordained strength because of thine enemies.”).”). provoke not your children to wrath: but bring them up in the nurture and admonition of the LORD. and let your children tell their children.2008] BEST INTERESTS OF THE CHILD 85 exposing of young children.”).”). .”).”). Isaiah 54:13 (describing protection of descendants). but the parents for the children.”). . and whether it be right. . 18 and at least three references that liken childlike qualities to godly qualities.”16 That opposition attitude is clearly evident in how children are characterized in the biblical record.

26 Joel 2:28 (describing sons and daughters as prophets).23 and at least fifteen scriptures that implore adults to be like children. supra note 16. Colossians 3:20 (obeying parents). Psalms 128:3 (describing sons around your table as olive shoots). 10 children. Ephesians 6:1–3 (obeying parents). children are highly valued in Jewish and Christian traditions. Suffer little children to come unto me. Joshua 24:3 (indicating God gives descendants). Isaiah 8:18 (stating children are given by God). for so it seemed good in thy sight. The historical Judeo-Christian influence regarding children is apparent throughout the entire biblical text. John 1:12 (describing men and women as children of God). 27 Genesis 33:5 (stating God graciously gives children). or needing to be like children. Luke 10:21 (“[T]hou hast hid these things from the wise and prudent. 23 Among them are Matthew 11:25 (discussing God’s truth as revealed to children yet hidden from learned men). Ephesians 6:2 (indicating children are promised a long life for honoring parents). I Timothy 3:4 (obeying father).”).”). and hast revealed them unto babes: even so. Galatians 3:26 (indicating sons of God). Romans 8: 14. and forbid them not: for of such is the kingdom of God. as there are at least twentyseven references that illustrate that children are highly valued.28 Carroll notes that: The biblical tradition prizes children as a blessing given by a gracious God.”). at 129. Romans 9:26 (describing sons of God). 1 John 3:1 (stating we should be called sons of God). Psalms 127:3 (indicating sons are a blessing). Galatians 4:5–6 (discussing rights as sons). Proverbs 31:28 (stating children rise to bless their mother). Suffer little children. Acts 2:39 (describing promises to children). Matthew 19:14 (“But Jesus said. Mark 13:12 (rebelling against parents). John 12:36 (analogizing trust as sons). Proverbs 20:7 (stating children are blessed). Mark 10:16 (describing Jesus taking children in his arms). Matthew 18:2–3 (stating you must change to become as a child). Father. 24 These include Matthew 5:9 (stating peacemakers are sons of God). Hebrew 2:13 (stating God gives children). as a “paradigm of God’s character and ways in the world.24 Jesus points to God’s people as his children. and said. 22 .22 Furthermore. Psalms 27:10 (stating God receives children forsaken by parents). Mark 10:14 (stating children are promised the kingdom of God). Isaiah 40:11 (stating God leads the young). 16 (describing men and women as children of God). Proverbs 17:6 (describing grandchildren as a crown). and they are vulnerable even to abuse in the name of good household management. It is therefore all the more astonishing that the Gospels present Jesus as “the friend of These include Mark 7:10 (honoring parents). Mark 10:14 (encouraging children to go to Jesus). Luke 18:16 (“But Jesus called them unto him. 28 Deuteronomy 5:16 (stating children will live long and it will go well for them when they honor parents). Psalms 113:9 (stating children bless a barren woman as a mother).26 are a gift of God27 and are offered special promises. to come unto me: for of such is the kingdom of heaven. yet their social position is marginal.86 JOURNAL OF LAW & FAMILY STUDIES [Vol. there are at least three references that liken childlike qualities to godly qualities. Proverbs 8:32 (stating sons are blessed when keeping God’s way). Acts 2:39 (indicating children are the promise of future hope). Hebrews 12:7 (indicating that God disciplines his people as sons). Genesis 48:9 (stating God gives sons). Matthew 21:16 (describing praise coming from the lips of children). Psalms 127:4–5 (analogizing sons as arrows to a warrior). 25 CARROLL. 2 Corinthians 6:18 (referring to God’s sons and daughters). and forbid them not.” 25 Though it did not always permeate the Greco-Roman mindset.

36 These religious reforms affected the culture and the law. 38 Id. 33 Id. despite the influence of Christianity. CENTURIES OF CHILDHOOD: A SOCIAL HISTORY OF FAMILY LIFE 128 (1962). and an expression of the historical traditions of a people. There was no conscious awareness of the particular nature of a child which distinguishes him or her from an adult. 35 Theology and its reforms produced and shaped legal transformations. constitutional law and family law among them. http://www. 35 Id. at 127.”37 Adults began to take a greater interest in children and in the recognition and development of the idea that they were naturally innocent and ought to be protected from anything that might disturb their modesty. and burdens. 13. whoever does not receive the kingdom of God like a child shall not enter it. consumers. Standard). the discourses of Jesus Christ regarding children provide a striking contrast to such modern theories. 34 This trio offers a good deal to an historical analysis of family law development.30 “Let the children come to me. 162–64 (April 2001). supra note 16.”33 This attitude permeated the law surrounding families. An essential concept had won acceptance: that of the innocence of childhood. and by the end of the seventeenth century “a new concept of childhood had appeared. his nanny or his cradle rocker. 2006). LAW AND REVOLUTION (1983)).html (discussing HAROLD BERMAN. do not hinder them. The Christian Origins of the Law (Feb. The Claremont Inst. 32 31 . . 37 ARIÈS. Calvinist-inspired reforms became the basis for the historical common law tradition. Yet. at 129.claremont. PHILIPPE ARIÈS.org/writings/021606richards. as soon as the child could live without the constant solicitude of his mother. 34 Peter Judson Richards. at 110. he belonged to adult society.29 At a time when societies viewed children primarily as products.” Id.32 “That is why. Mark 10:14–15 (Rev. Truly I say to you. “It was Berman’s contribution to identify the context of these beginnings within the corresponding train of historical developments in Western Christendom. Harold Berman’s Law and Revolution draws on Augustinian foundation and canon law to clarify that law and any legitimate legal system consists of the trio of law as the positive command of the law giver. supra note 32. a reflection of the universal moral law. from which derives the basic topics of our contemporary law school curriculum. 36 Id. the idea of childhood was lacking in medieval society. 55 INTERPRETATION 161. Dawn DeVries. causing a “great change in manners [to] take place in the course of the seventeenth century. and Calvinist covenant theology had a transforming effect on reform of private life. Toward a Theology of Childhood. . The Protestant Reformation entailed the reform of law with Philip Melanchton’s method of analysis. .”38 This apparently universal moral law combined with the 29 30 CARROLL.”31 The influence of Christianity on the treatment of children was certain.. for to such belongs the kingdom of God.2008] BEST INTERESTS OF THE CHILD 87 children” in a way that departs radically from this larger cultural and biblical pattern.

e.”). 10 positive commands of the Law Giver gave jurists a more illumined perspective of children when they became involved in the law.. where wisdom could be learned in the process of growing to maturity. 49 Id. CHILDREN: RIGHTS AND CHILDHOOD 38 (1995)). requiring education and constraints of society to tame their sinful behavior. . M. Dent 1963)). In the eighteenth century. 43 See.44 Philosophers like John Locke viewed children as having natural rights that need to be protected.48 Jean Jacque Rousseau held to the concept of the child as pure. In the same way your Father in heaven is not willing that any of these little ones should be lost. that children were destined to take their place in the moral and social order as individuals and that parents were obliged to bring their children to a state where they were capable of independence. THE STANDARD OF THE BEST INTERESTS OF THE CHILD: A WESTERN TRADITION IN INTERNATIONAL AND COMPARATIVE LAW 35 (2002).. . at 36–37. . J. .. inheriting sinfulness of man. man meddles with them and they become evil.50 “God makes all things good. 47 Id.47 Children needed education. 50 Id.42 combined with the Old Testament view of the child as needing wisdom and guidance. 44 BREEN. 42 See. neither good nor bad. at 36 (citing D.”). supra note 39. e. at 69. Proverbs 22:6 (NIV) (“Train up a child in the way he should go and when he is old he will not turn from it. ARCHARD. 51 Id. 41 Id. at 38. 40 Yet another Christian tradition of Puritanism “perceived children as essentially prone to a badness that” required discipline and correction. 14 (NIV) (“And whoever welcomes a little child like this in my name welcomes me. to provide for the “best” way to produce “rational” adults out of immature children. at 36. supra note 39.g.41 The New Testament image of children seen as needing protection and love. TWO TREATISES OF GOVERNMENT 330 (1960) (citing specifically THE SECOND TREATISE ¶ 67).”51 Historian Hugh Cunningham notes that: [F]ramed by the writings of John Locke at its beginning and of the romantic poets at its end. at 37. often including “Christian elements based upon the continuing belief that the child was essentially corrupt. 40 Id.45 “He believed that children were not their parents’ property but God’s property. 46 BREEN. at 36. in his school of thought.g.43 all added up to an authentic socio-legal concern for the development of each individual child.”39 Another Christian view presented the child as lacking in maturity. (citing JEAN JACQUES ROUSSEAU. there were still contrasting and conflicting views of religious perspectives on children and their place in society.49 yet corrupted by society. . becoming to some extent a part of the tradition of the time. Children were seen as being born with Original Sin.88 JOURNAL OF LAW & FAMILY STUDIES [Vol. 48 Id. Matthew 18:5. . though. Foxley trans. and with the strident figure of Rousseau at 39 CLAIRE BREEN. at 37. ÉMILE 5 (B.”46 Locke regarded the child as a blank slate. 45 JOHN LOCKE.

Cretney. might help redeem the adult world. the Guardianship of Infants Act of 1886. common law rules were discovered. It “embedded in the European and American mind a sense of the importance of childhood. This paternal preference rule was departed from in England throughout the nineteenth century.”55 The English common law afforded fathers near absolute power over their children with a moral and legal obligation to protect. but changes were based in parental equality rather than the best interests of the child. allowing more maternal custodial powers when appropriate via the Custody of Children Act of 1839. WOMEN & L. 1. and a hope that the qualities of childhood.57 The late seventeenth HUGH CUNNINGHAM. 110. REV. A Content Analysis of Judicial Decision-Making: How Judges Use the Primary Caretaker Standard to Make a Custody Determination. 53 52 . “In short. at 77–78. Q. and the Matrimonial Causes Act of 1857. Some people began to see childhood not as a preparation for something else.” MASON.52 Romanticism seemed to create new ways of thinking about infancy and youth. there seems in the eighteenth century to be a degree of sensitivity to childhood and to children lacking in previous centuries.2008] BEST INTERESTS OF THE CHILD 89 centre stage. Superior paternal power “dominated much of English common law up until and during the nineteenth century. supra note 39. *453. common law doctrines were derived from natural principles of justice. & MARY J. Id. statutes were acts of will. 112–13 (1996)).M.”54 William Blackstone’s commentaries expounded on family authority as well. at 43–45. Family law jurisprudence under English common law was likewise intertwined with the economy of the society at the time. at 44 (citing S. THE TRANSFORMATION OF AMERICAN LAW (1780–1860) 7 (1977). whether adulthood or heaven. or paternal power. which many believe gave the father absolute rights to his children—whom he viewed as chattel. the Custody of Infants Act of 1873. 112 THE L. Id. 54 MORTON J. a belief that childhood should be happy. The law only recognized one head of the family and in this capacity the father maintained tremendous power over its members. 56 WILLIAM BLACKSTONE. if they could be preserved in adulthood. “[The father] may indeed have the benefit of his children’s labor while they live with him and are maintained by him.”53 The common law of England reigned as the jurisprudence of that culture. statutes were made.56 Custody law began to develop in the 1600s. starting with the natural law concept of patria potestas. 5 WM. “Since children were viewed as important economic producers. This included the right of the father to the labor and earnings of his children. with a reverence and a sanctification of childhood. at 3. 57 See Kathryn L. Id. 55 BREEN. CHILDREN AND CHILDHOOD IN WESTERN SOCIETY SINCE 1500 61 (1995).” Id. HORWITZ. Mercer. 1 COMMENTARIES ON THE LAW OF ENGLAND. the courts became principally involved in issues of the custody and control of children when they were asked to approve contracts for indenture or to resolve conflicts regarding child labor. but as a stage of life to be valued in its own right. but this is no more than he is entitled to from his apprentices or servants. “What Will the Women Want Next?” The Struggle for Power within the Family 1925–75. supra note 6. The common law of England denied to a wife any legal right to the custody or care and control of her children: and the concept that a wife was a mere chattel whose identity merged into that of her husband was thereby reflected in the legal structure governing the most basic of human relationships. support and educate their children.

21. The Romantic ideology of childhood began to influence public action in the eighteenth century with the emergence of the philanthropic concern to save children in order that they could enjoy their childhood. Sex Education in the Public Schools and the Accommodation of Familial Rights. More accurately. the “best interests of the child” doctrine essentially sprang out of paternal authority. supra note 15. Lord Hardwicke’s Marriage Act of 1793 regarded marriage clearly as a property interest with an eye to determine legitimacy of heirs to that family property. see also Ramsay Laing Klaff. 337 (“The doctrine originated in the nineteenth century as a childprotective reform intended to elevate the interest of children above fathers’ common law proprietary rights in children. which spread to the establishment of the colonies. supra note 39. MANSELL. 59 JOHN STUART MILL. See Eric A. 58 Mercer. J. the British law that brought the Tender Years doctrine to common law tradition. By this time. DeGroff. FUNDAMENTAL PRINCIPLES OF FAMILY LAW 858 (2002). .”59 The Enlightenment and the Romantics had a strong influence on the law of families. NOLAN. recognizing the state as parent at times when the King’s Bench was called upon to intervene in family matters. at least a child of tender years. L. The Tender Years Doctrine: A Defense. John Stuart Mill viewed paternal power as that which could only be rightfully exercised “to prevent harm to others. . at 40. Not all scholars agree that children were mere property to their parents under the common law. During the nineteenth century England departed from the paternal preference. at 122.”64 The language of ‘the best interest of the child’ was more or less a façade for the presumption of the time. the philanthropists viewed children as being unformed enough to be saveable. supra note 57. LEGAL RTS.” 62 Thus.63 Rather than being established in the best interests of the child concept. 61 Id.60 These attitudes of concern for children were integrated with views on marriage. . 10 century in England transformed the patria potestas jurisprudence toward a parens patriae doctrine. This was the origin of the ‘tender years’ presumption. allowing more maternal custodial powers when appropriate via the Custody of Children Act of 1839. A CRITICAL INTRODUCTION TO LAW 92 (1995)). at 20 (citing W.90 JOURNAL OF LAW & FAMILY STUDIES [Vol. REV. 21 (2006) (arguing that children are under the protection of parents).58 This jurisprudence was likely influenced by utilitarianism in Europe. Like the child of the Romantics. to be in the custody of its mother. 26 CHILD. with such a child being representative of the future. 335. 63 Kelly. WARDLE & LAURENCE C. England was not the great actor in the rise 14 (Winter 1998). 62 LYNN D. British courts completely shifted their custody supposition to presume “that it was in the best interests of a child. the patriarchal rule subsided from a rule to a presumption (that it would be in the best interests of the child to be raised by father). these English laws were apparently based in parental and gender equality.’.61 Patriarchal rules prevailed in courts of equity in England in their parens patriae role “to protect the ‘best interests of the child.”). 70 CAL. ON LIBERTY 68 (1910). at 14–15. 60 BREEN.

”65 The common law was brought to America with the colonists and continued to be the basis of American law. under the complete control of their fathers or masters. 67 Mercer. at 50. “God had ordained it but also because nature had displayed it—parental authority was believed to derive from the biological and physical realities of the human conditions and. Id.2008] BEST INTERESTS OF THE CHILD 91 of the Best Interest of the Child standard. 68 MASON. supra note 62.” Id. and thus.68 More particularly. from the relationship of dependency which existed between the biological parents and their offspring. While the transformation came slowly in contrast to the fast pace of political events or economic development. at 148. this is not the only interpretation that may be accorded to the standard as inevitably the principle of the best interests of the child varies from region to region and from culture to culture.”69 This provided a formidable wave of jurisprudence regarding children. it was nevertheless relentless. who were no longer legally akin to servants.”66 Children were still part of the American family economy. supra note 57. and the fact that most mothers personally assumed custody of their children without a contest. it is more likely that an American influence in the English jurisprudence allowed the western development of the BIC standard. at 45. the state with its welfare and utilitarian concerns. Parents farmed their children out between the ages of seven and fourteen. 65 BREEN. Natural law arguments in favor of parental authority and parents’ rights prevailed during the founding period of the new world. at 858– 59. Professors Wardle and Nolan explain the variations of the presumption. Rather. concern for the best interests of children was most apparent in the development of adoption law in America. The best interests standard was the American WARDLE & NOLAN. “It is clear that American adoption statutes emerged in the middle of the nineteenth century on the wave of Protestant reform movements in order to provide for the welfare of dependent children as an alternative to pitiful almshouses. Id. The colonial view of children as helping hands in a labor-scarce economy gave way to a romantic. they were apprentices thereafter. the culturally reinforced idea that mothers should get custody of young children. in particular. at 15. Most youth were incorporated fully into the work force by age fifteen. (citing JOSEPH F. 64 . but instead were deemed to have interests of their own. supra note 39. 66 Id. supra note 6. emotional view of children. “The standard of the best interests of the child may generally be described as a principle deriving from Anglo-American family law. The stakeholders at this point were the child as an emerging adult. important to the economy of a growing nation. Children were regarded primarily as revenue-generating property during the infancy of the United States. RITES OF PASSAGE 18 (1977)). “The issue of child custody in the postRevolutionary era (1779–1840) might be classified as a battle between competing stakeholders for the right to the child’s earnings. KETT. “Admittedly.”67 The legal and social status of the child was transformed during the first century of the new republic. and the father. at 44.

Interstate Succession by and from the Adopted Child. which in turn gave way to state action to rescue children from the street. at 41 (citing CUNNINGHAM. 28 WASH. Q.73 The solution to this and to the general problem of street children was to turn the delinquent once more into a child. 151 (Spring 1997) (discussing the Christian tradition in adoption). American law sought to ‘establish an institution to ameliorate the condition of the neglected and dependent child. and common law approaches.74 Meanwhile in England. therefore. Post argues that this adoption tradition favoring what was best for the child over what the family wanted is grounded in Christian tradition. 71 Id. 74 Id. from work and unfair labor. the Chancellor Lord Talfourd promoted the earliest “tender years” doctrine. 223 (1943)).92 JOURNAL OF LAW & FAMILY STUDIES [Vol. and set the standard which the world now follows.” Id. Post. Colonial concern for the child in need of a family gave rise to philanthropy. civilian.” Id. Inheritance rights were only incidentally considered. Post says “it appears that the American Protestant approach to adoption was consistent with time-honored but forgotten theological insights of early and medieval Christianity.The child was gradually to be restored to the true position of childhood by being placed within a family. setting a completely new standard. 70 Id. supra note 52. By the nineteenth century this American blend flavored all actions toward children. Citing John Boswell’s The Kindness of Strangers. . Kuhlman. U. Christianity and socio-legal reforms were forming an entirely new basis for family law development in the new world. at 152. 221. 73 BREEN. at 41. at 337. This solution was an internalisation of the Romantic belief that a proper childhood was the only foundation for a tolerable adult life.71 The American concept of adoption was so based in the best interests of the child that it entailed a new meaning for adoption: adoption was about finding a family for a child. supra note 39. Thus. which have been prominent in Jewish religious identity’. 72 See WARDLE & NOLAN. the heart of this child-centered model of adoption was the creation of family relationships that imitated and were intended to replicate the relationship that exists between parents and child(ren) in a birth (natural) family. at 135–36). Such a childhood was to be found only in the bound of a family. which emphasized adoption as a means of establishing family heirs." Id. upon which the child would depend for protection. Adoption Theologically Considered. L. 25 J. at 151 (citing Fred L. ETHICS 149. or a substitute family. took an immediate and radical departure from a basic concept of Roman law in that the primary concern of our laws was the welfare of the child rather than concern for the continuity of the” family legacy. intended for custody determinations of only the very Stephen G. rather than a child for a family. supra note 62. “Christianity ‘discounted the importance of lineage and descent. at 151–52. “Our statutes.’”70 This was in direct contrast to adoption in England which still followed Roman legal concepts of adoption focused on purposes of inheritance. “In contrast to Roman law. 10 framework of adoption. from delinquency..72 A uniquely American blend of antiquity. . "This primary focus on the welfare of children without families distinguished American adoption from the classic Roman. RELIG. 69 .

which as yet does nothing for itself. at 19. with a presumption in favor of mothers as the more nurturing parent. Everything must be done for an imperfect being.”). at 122. such a being must be kept under an authority more immediate than that of the laws. supra note 39. REV. MASON. In the first hundred years of the new republic. Jordan. 80 BREEN. at 50.” because of the central role that common law judges played in the elaboration of nineteenth-century law as creators of critical doctrine regarding the nature of legal reform during this era. supra note 57. The feebleness of infancy demands a continual protection.with recognition to be accorded to the special needs and characteristics of the child. Thus. it has already strength and passions.77 Out of this utilitarian jurisprudence that transformed much of England’s law on children. . . Who Determines Children’s Best Interests?. at 18 (stating that a response to Bentham included a call to the state to protect and regulate the child’s environment: “The State could. there was a dramatic shift away from fathers’ common law rights to custody and control of their children toward a modern emphasis on the best interests of the child. which meant that children needed state protection. The changing status of women… was a critical factor in this transformation. 78 Mercer. He argued for reforms based on the common good. a duality existed between the growing state intervention and the laissez-faire approach to private family maintenance. 312 (Summer 1999). combined with a natural law foundation and the American development of and emphasis on a best interests approach. MASON. 17 LAW & HIST. Too sensitive to present impulses.. MASON. at 160). Hildreth trans. see also Mercer. 248 (R. at 43. without experience enough to regulate them. at xiii. & Co.78 This has led many family law scholars to view the BIC standard as a nineteenth century tradition. supra note 39.76 Utilitarianism had a continued influence in British family law. 76 75 . supra note 39. supra note 6. 79 See BREEN. See generally BREEN. after the end of the colonial period. VOL. supra note 6.2008] BEST INTERESTS OF THE CHILD 93 youngest of children75 and largely viewed as a product of natural law.”80 Concern for child welfare in the late 1800s included illegitimate children. at 42 (citing CUNNINGHAM. and should. supra note 15. At a certain age. 77 1 JEREMY BENTHAM. Michael Grossberg. . by 1850. supra note 6.79 Throughout the nineteenth and into the twentieth century reformers and philanthropists became “deeply imbued with the Romantic belief that childhood should be happy…. from 1790 to 1890. I. and in 1840 Jeremy Bentham sought to organize the country’s laws to place the general good above that of the individual. too negligent of the future. at xiii. This influenced the law regarding children. THEORY OF LEGISLATION. . that of its intellectual faculties is still slower. supra note 57. intervene to promote the development of good citizens. Weeks. . a fresh jurisprudence regarding children developed in the West. supra note 52. as well as those children suffering from the effects of the Kelly. 309. Critics of this theory argue that the best interests of the child doctrine is more accurately considered as “yet another example of the refinements that occurred in so many categories of nineteenth-century Anglo-American law. The complete development of its physical powers takes many years. 1840).

Id. 176 (Howard Davidson & Robert Horowitz. but juvenile justice jurisprudence as well. 1986). BREEN. and is applied to the extent that the child is not transferred to adult criminal courts. from arrest to disposition. However. 34–42. Id. consequently. see also BREEN. at 47. “The rights of the child were first brought together in one internationally 81 82 MASON. The juvenile justice criminal system in America.84 Scholars in this area of child law generally claim that the basis for juvenile justice is grounded in the BIC standard. supra note 39. at 43.81 “The ‘best interests of the child’ slowly developed as a legal concern in the new republic.. available at http://www. rather than circumscribing the best interests of the child.”85 Others. Yale-New Haven Teachers Inst. It is this state that the best interests standard seeks to attain for the ‘Other’ child. The BIC standard began to spread internationally during the twentieth century. the corrupt child.edu/ynhti/curric ulum/units/1994/1/94. is ostensibly being done with the best interests of the child in mind. Id. at least for a growing class of parents. Bird.”82 Over the eighteenth and nineteenth centuries the best interests of the child became a part of not only American family law jurisprudence. It is this child which has provided the norm by which the standard of the best interests of the child has been measured.x. it is the ‘Other’. however.yale. essentially rested on the tradition of best interests standard. in LEGAL ADVOCACY FOR CHILDREN AND YOUTH: REFORM. n.01. 84 83 . supra note 6.83 Often the picture of the child as innocent and deserving protection continues to exist alongside common law rules as to the criminal responsibility of children. Breen sets out the common law rules: Such rules provided that there was an irrebuttable [sic] presumption that a child under the age of seven was incapable of forming criminal intent and thus could not be liable for his criminal acts. AND CONTEMPORARY ISSUES 175. COMMENTARIES ON THE LAWS OF ENGLAND). Id. at 206. supra note 39. The Romantic child already exists in a state of nirvana. although the innocent child may provide the measurement of best interests. 86 Luis Recalde. 85 John R. increasingly entrenching the BIC concept as a permanent fixture in family law. when. “Everything done during the course of a juvenile court proceeding. The ideal of the innocent Romantic child has continued to represent and define our perceptions of the child over the last two centuries. were always liable for their criminal offenses. the law presumed that children fourteen years old or older had the same criminal capacity as adults and. Children between the ages of seven and fourteen were also held to be incapable of forming criminal intent although this intention could be rebutted by showing that the child was able to distinguish between right and wrong and had understood the nature of his act and that it was wrong. which has been the true object of the best interests standard. Finally. at 30. child labor needs were less urgent.05. 2006). 10 industrial revolution.26 (citing WILLIAM BLACKSTONE. enhanced by the romanticization of their mothers.86 Twentieth century jurists continued the development of the doctrine in case law across the nation. TRENDS. disagree that there is ever a good application of the best interests standard in the juvenile justice system..94 JOURNAL OF LAW & FAMILY STUDIES [Vol.html. Juvenile Corrections Facilities: Is There Any Room for the Isolation Room. at 20. To What Extent is the Application of Family Law in the Best Interests of Children? (May 22. eds. and children were assigned an emotional value.

” Id. 1992)) (“The view that children were the (now valuable) property of their parents remained well into the nineteenth century. BREEN. fostering.’ the latter being a non-governmental body based in Geneva. supra note 6.2008] BEST INTERESTS OF THE CHILD 95 recognized text in 1924.” when the Assembly of the League of Nations passed a resolution endorsing the Declaration of the Rights of the Child which had been proclaimed the previous year by the ‘Save the Children International Union. Id. at 43 (citing R. creating a new area of law—that of children’s rights. the BIC standard has become critical in evaluating custody decisions in repatriation cases.92 From the BIC doctrine. 24 CAL. as reprinted in. 88 BREEN. adoption. 193.88 This was the triumph of a uniquely American concept adopted by a global community of persons concerned for children’s welfare. 92 MASON. W. although paternalistic in nature. at 16. 197 (1994)). supra note 39. J. at 77 (citing Declaration of the Rights of the Child. the non-interventionist tradition with regard to the child remained and was reflected in a balancing of parental rights which resulted in a greater degree of equality between parents with regard to the upbringing of their children. a tradition which. P. clearly a clash of legal ideals and social traditions.”).87 These BIC traditions originated in western law. Levesque. supra note 39. THE EVALUATION OF THE BEST INTERESTS OF THE CHILD IN THE CHOICE BETWEEN REMAINING IN THE HOST COUNTRY AND REPATRIATION: A REFLECTION BASED ON THE CONVENTION ON THE RIGHTS OF THE CHILD (2002). The rights based approach has attempted to determine the appropriateness of according rights to children whereby varying degrees of autonomy are granted to children. Breen notes the undercurrent of cultural relativism that flows through the Convention on the Rights of the Child. VEERMAN. children’s rights grew and 87 BREEN.J. was based upon a greater degree of interventionism into family life.91 A tension developed between notions of protectionism and autonomy in regards to children’s rights. This latter tradition concerning the rights of parents ultimately gave way to the standard of the best interests of the child. supra note 39. 89 Id.E. “The standard has developed far beyond its original conception as a principle of Anglo-American family law which is applied by state courts and quasi-judicial tribunals in proceedings concerning matrimony. This paternalistic approach has continued to exist somewhat uneasily alongside the tradition of children’s rights which has emerged more recently and which would appear to favour a greater degree of autonomy for the child. Failure to uphold the best interests standard is vividly displayed by the practice of female genital mutilation in many African nations.”89 Indeed. In . at 25 (adding the enshrining of the family in the Irish Constitution as in conflict with the best interests standard). THE RIGHTS OF THE CHILD AND THE CHANGING IMAGE OF CHILDHOOD 444 (Martinus Nijhoff Publishers. L. Id. “The conflict between the traditions of parental rights and best interests may be traced through a number of cases which involved disputes with regard to the custody of children. 90 The doctrine has had a global impact. at 19 (citing Article 20(3) and 24(3) of the Convention). International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic Policy. and the guardianship of minors. Id. at 16. As the tradition of paternal supremacy waned. but also an impact on the legal evolution of the jurisprudence generally surrounding matters regarding the disposition and future of children.R. 91 See BREEN. at 148. 90 ELENA ROZZI. but were universally promulgated through the United Nations Convention on the Rights of the Child. SAVE THE CHILDREN ITALY. supra note 39. at 67. INT’L. showing somewhat of a tolerance for practices prejudicial to the health of children.

at x. Duncan. And yet.” which offered practical rather than legally correct results. and out of that jurisprudence arose ardent support for children to be vested with rights of their own. 10 developed. 23 Tenn. possibly joining the best interests bandwagon). Hafen & Jonathan O. 55 FIRST THINGS 18 (Aug/Sept. Jr. As deeply as I’ve always thought of myself as a children’s advocate. Id. 1240. e.. Id. “The tradition of judicial discretion became so firmly imbedded that many judges often gave no more than lip service to precedent or even to legislation in their own state.g. but instead sought to probe tangled fact situations to discover the best interests of an individual child. an example of which has already been seen in the academic debate surrounding the standard of the best interests of the child. State v. REV.96 JOURNAL OF LAW & FAMILY STUDIES [Vol. Vardin & Ilene N. I continue to identify myself as a children’s advocate while rejecting much of what falls under the rubric of children’s rights. much of what I read and hear being advocated in furtherance of children’s rights seems to me misguided. at 5–11. 523 (1843). 1976 BYU L. BEYOND THE BEST contrast to the rights-based approach.96 From this movement rose the more subtle and insipid rampage of judicial discretion. Payne. 93 . 1995) (arguing that child autonomy claims are most often for the benefit of adults rather than children). Brody eds. supra note 1. 98 GUGGENHEIM.”93 Many believe this is the wrong direction if society is genuinely concerned about children’s best interests. 95 Duncan. Hafen. The Ultimate Best Interest of the Child Enures from Parental Reinforcement: The Journey to Family Integrity. at 1244. they almost invariable have done so in the best interests of the child. where the judge departed from established precedent in that state and used his own judicial discretion in determining the custody outcome. Indeed.”95 Out of this forged autonomy rose the children’s rights movement of the 1960s. Children’s Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to Their Rights.99 Social science has simultaneously gained respect and credibility in the legal determinations surrounding children and families in mid twentieth century family law. BURT. 83 NEB. even Professor Guggenheim. L. ROBERT A. 1979) (arguing that the state is manifestly inadequate to protect children and affording children rights does not solve that problem).. a social scientist researcher and a child psychologist. supra note 6. REV.94 “The misuse and overuse of this concept as a legal doctrine has actually resulted in children being further victimized at the hands of the State. at 59–60 (citing for an example of the loose judicial discretion.97 Family law scholar and children’s advocate Martin Guggenheim argues that it is sensible to believe that a child has a right to not be capable. 1244 (2005). 656. A landmark book built on the development of BIC jurisprudence written by a lawyer. supra note 93. who self-identifies as a child advocate is quite validly concerned over the falsity and manipulation of children’s rights. 605. supra note 1. CHILDREN’S RIGHTS: CONTEMPORARY PERSPECTIVES 40 (Patricia A.98 and this has become a core point in the scholarship against children’s rights. Abandoning Children to Their Rights. John C. creating an extreme chasm between children and their parents by presenting these rights in direct conflict with one another. the welfare argument has called for a protectionist approach towards children.. Hafen. 99 See Bruce C. of being deemed capable to undertand his or her own rights. Bruce C. 97 MASON. “As courts and legislators have created newly recognized rights of children. 94 See. 96 GUGGENHEIM.

Szentes. 105 Wald. supra note 54. 102 the book brought social science and expert testimony powerfully into the judicial decision-making process. 107 Id.100 sought to question the BIC standard with new promulgations of the psychological parent. These authors followed up their work with another similar work. at 18–20.103 and seemed to build an attitude in the law that completely focused on children.106 The colonial revolutionary generation was influenced by their commitment to common law doctrines that conformed “the Law of Nature.” 109 This legal transformation is often scorned as a “two-edged sword” that judges used to mold legal doctrine and policy.105 The greatest concern with the use of BIC today is that application of the doctrine rests on the judge’s personal observations and values. made of himself a witness. It revolutionized child custody. to offer countervailing evidence or to know upon what evidence the decision would be made. The volume had a strong impact on judges and lawyers alike.104 and attempted to swing back the pendulum toward a more balanced approach to parents and their children. J. 108 HOROWITZ. G. 97 YALE L.. In effect the trial judge. 101 100 . which also had an impact on family law.2008] BEST INTERESTS OF THE CHILD 97 INTERESTS OF THE CHILD. and in making [these findings] availed himself of his personal knowledge. 33 A. L. THE ENGLISH STATUTES IN MARYLAND 82 (1903)). 1478 (1988) (reviewing IN THE BEST INTERESTS OF THE CHILD). 106 Kovacs v. the Law of Reason and the revealed Law of God” essentially to a customary usage of natural law principles. The Kindness of Strangers. the law began a transformation which resulted in “the underlying basis for the legitimacy of the common law in which jurists began to conceive of the common law as an instrument of will. An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child.2d 124. Wald. 1943). 13 FAM.107 Post-revolutionary American jurisprudence demonstrated a legitimacy of statutes by individual sovereign states coexisting with common law principles. at 22. 49 (1979) (providing a collection of conflicting responses to the first book). 109 Id. he became an unsworn witness to material facts without the [parties] having any opportunity to cross-examine. at 1480–81. 1477. as a basis for [his]findings.108 Gaining a distinctly American flavor. IN THE BEST INTERESTS OF THE CHILD. supra note 101.101 Referring more to psychoanalytic theory regardless of the substantive laws or rules which governed custody. at 1477. 104 JOSEPH GOLDSTEIN ET AL. at 5–8 (quoting Daniel Dulany. SUOISSANT. 126 (Conn. Q.. BEYOND THE BEST INTERESTS OF THE CHILD 3–8 (Free Press 1974). departing from JOSEPH GOLDSTEIN ET AL. IN THE BEST INTERESTS OF THE CHILD 3–9 (Free Press 1986). 102 Id. seemingly to the disregard of parents and the protection they naturally confer upon children. THE RIGHT OF THE INHABITANTS OF MARYLAND TO THE BENEFIT OF THE ENGLISH LAWS (1728) in ST. 103 See Richard Crouch. Patricia M. suggesting a positivist path to broad judicial discretion where courts deemed the law to be what they said it was.

112 (1763) 97 Eng. England’s court documents record several cases dealing with matters that brought into question the legal rules regarding children and their worth and value. “according to the circumstances that shall appear before them. but wisely employed in the development of the BIC standard. revelation to some extent for the welfare of a child. Rep. Lord Mansfield was a pivotal actor clearing this path among the King’s Bench. he ruled that the court was not required to order the children who were subjects of a habeas writ to be delivered to their father. The facts are clearly stated in the record. to natural law principles embedded in the common law. . 914 (K.).”112 In competing custody claims in Blisset’s Case in 1774. Rep.111 Among the rules questioned was that of absolute paternal authority. during Mr. at which time the father reappeared to claim guardianship of the child along with the child’s legacy left to him by the testator. Rep. 115 Id. 10 English judgments. Mr. Mansfield allowed the child to remain with its mother based on the public’s concern for the education of the child.110 All of this occurred in the context of developing judicial and statutory state law. Roberts. but any decision regarding custody was left to the discretion of the judges. thus doing what was best for the child. 913. Devall in 1763. at least loosely. CASE LAW IN PROGRESSION The birth and development of western child law jurisprudence began in the late 1700s and early 1800s. and at the expence of Mr. The result is that American courts began to depart from their British ancestral custom and develop their own standards and doctrines via judicial opinion based in natural principles. In Rex v.114 a case most accurately described as a probate matter.B.). at 276.113 Fifteen years later another court of the King’s Bench was concerned for a child’s best interests. See infra notes 112–114. based in revelation and universal moral concepts integrated into American family law jurisprudence. permitted the children to be brought up by. Powel’s life.).115 110 111 Id. 114 (1789) 29 Eng.B. 113 (1774) 98 Eng. 899 (K. if not realigned with. What becomes apparent in Section II’s analysis of these early cases is a sense that some parts of the common law as applied to children were really errant customary law. which was taken to task by considering concerns for the child.98 JOURNAL OF LAW & FAMILY STUDIES [Vol. Powel. The case history that follows reveals that judicial discretion was not unbridled. the court reviewed guardianship of a child and his inheritance. the BIC standard was often presumed and given very loose statutory guidance. at 23–27. That law needed to be at least trifled with. In 1789 in Powel v. III. Eventually codified. Cleaver. An absent father had allowed the testator to care for and support his son until the death of the testator. the father. but adhering. Basing that realignment on judicial discretion developed a strong legal doctrine in the best interests of the child. 274 (Ch.

116 Id. C. to the foundations of that legal standard nonetheless. 119 Id. to care for and raise his son. on the condition. 64). “It is quite settled. the testator. expressly. supra note 4. Power’s executors. 117 Id. Such being the case. had willingly allowed Mr.121 If Devall. at 276 (citing Lord Eldon. the provision for his support. under circumstances. Id.117 With much discussion of satisfaction of legacy and other probate terms. The maintenance to the eldest son is given. The will expressly directs. Powel. that Mr. they were quickly doused in 1804 by blanket judicial reinforcement of the paternal preference.” 116 In determining the outcome. 118 Id.2008] BEST INTERESTS OF THE CHILD 99 The problem was that such a claim of guardianship by the father would divest the child of that legacy. The father. Roberts. that the Court will not only control a father in the management and the possession of his child. at 540. 120 The court’s powers to change guardianship for parental unfitness were also clearly stated. and further distinctions made in this case from that of parent and child. at 277. and the Lord Chancellor “would not suffer the feelings of the parents to have effect against that duty which the interest of the child required. as it assisted the decline of the unfettered absolute rights of parents. . or his social status. Furthermore. Powel.120 Because Powel occurred outside a custody context. 121 GROSSBERG. 10 Ves. unless it shall be the Court’s opinion. it is not generally considered when discussing the foundations of the best interests of the child as a legal standard. that the authority of a parent as guardian to his children cannot be transferred except by abuse of the authority. however. It has merit. . Roberts shall be in the hands of Mr.. Roberts by suffering him to resist Mr. regardless of the child’s interests Since Mr. Id. the court distinguished this case from the absolute paternal authority of parent over child by considering the competing interests of parent and child and the parent’s rights in the context of a child’s provision of wealth. Roberts has himself taken benefit under the will of Mr. I do not see how the Court can gratify Mr.118 The Chancellor noted that “he would not allow the colour of parental authority to work the ruin of his child. such legacy may be forfeited.” Id. 63. Powel’s disposition of the guardianship. it appeared in Powel that the best interests of the child heir prevailed over any parental authority.”119 Thus. at 237. the court ruled strictly in terms of a finding that would not bring detriment to the child. . Mr. Blisset’s and Powel were sparks for British courts to use a new standard of welfare for children. at 283. Mr. that the guardianship of the three sons of Mr. It is material. Powel’s death. Roberts permits the guardianship to be with the executors. the perception of children as chattel appeared to weaken as children came to be viewed as something much more and very different by the end of the 1700s. where by so insisting on that right against the condition of a legacy to them. to consider whether a parent can insist upon his full right of guardianship. but altogether remove the child from his influence if he is a depraved person.

Id. no court interferences with paternal rights during this period recognized an independent right in the mother to have custody or access to her children in the event of a separation. “[T]he Court is apprised that it is treading on new and dangerous grounds. as a matter of law. Wright emphasizes that even that was merely shrouded in best interests language: “But despite a rhetoric of children’s interests that infused the legislative and judicial treatment of mothers’ claims. at 259. available at http://www. REV. 17 L. . MATRIM. rationalizing that the responsibility of enforcing the common law was to be passed on to higher courts than itself. the jurisprudence was forming much differently. “The law is clear. as parens patriae. if he chooses. 123 (1804) 32 Eng. which included a version of the “tender years” doctrine. 124 Id.127 That court’s opinion did not use language setting forth the child’s best interests as the legal standard for its decision. 127 Id.C.). De Manneville. at 338. the court had no problem removing the child from the mother’s care and giving custody to the father. In 1809. html. “Subsequent English cases ignored the best interests principle altogether and confined the ruling in Blisset’s Case to its facts.122 Despite the fact that it might be best for a nursing infant child of eleven months to remain with his mother. Religion and Best Interests in Custody Cases. 126 Prather v. & HIST. 10 or needs. 247 (2006).” Klaff.hitory. See also King v. supra note 63.” Joanne Ross Wilder. of whatever age. (1804) 102 Eng. ACAD. the court was incensed by the injustice of the paternal rule as applied to these facts. Rep. It seemed that courts in England were using common law rules to foster a best interests standard.125 and certainly did not pertain to a custody dispute between mother and father. 764 (Ch. 18 J.” Id. De Manneville. the best interests language was used as a façade for coverture. The best interests test was not codified until 1925 as the principal criterion for making custodial awards. 211. L. however. Although the courts. At most. supra note 124. 4 S. but feels a consolation in the reflection that if it errs. at 249. that the custody of a child. 1054 (K. and he reigned supreme.B. paid lip service to a “best interests of the child” doctrine in the early nineteenth century. at 250. De Manneville: Rethinking the Birth of Custody Law under Patriarchy. stating that “custody law did not address the rights of women or the interests of children until the last few decades of the nineteenth century.” Id. 762 (Ch.). 762.100 JOURNAL OF LAW & FAMILY STUDIES [Vol. Rep. Eq. the difficulty of reconciling paternal and maternal rights prevented significant reform for many years. De Manneville v. Wright agrees with the surmise that the best interests of the child were not part of the custody rationale of British courts in the nineteenth century. 212 (2002).) 33 (1809). but the court was clearly disturbed that the father’s actions were not those that warranted a court 122 (1804) 32 Eng.2/wright. a North Carolina father of a five year old girl put his wife of ten years out of their home to bring in his paramour.”123 De Manneville clarified and emphasized that a British court cannot interfere with a father’s right to his child.” Id. At the same time. the law promoted the maintenance of strong patriarchal hierarchies in many nineteenth-century marriages. Prather. belongs to the father. but that was merely an appearance. by resisting the adoption of a best interests standard.org/journals/lhr/17. Coverture is the concept that “mother and children were under cover of the husband/father. Rep. with whom he lived in open adultery. Wright.126 Though fearful of defying the authority of the common law. Desau. or forfeiture. An extremely thorough examination of the De Manneville case is contained in Danaya C. divorce.” Wright. (4 Des. at 44. Across the Atlantic Ocean.124 Any trend set out in Powel was negligible in De Manneville. AM.). at 247–49. 125 “The court at no time considered the interests of the child. in the historic case of De Manneville v. Id. Asserting that the maternal presumption took hold in the jurisprudence by the end of the nineteenth century. at 248–49. there is a tribunal wherein the error can be redressed.cooperative.

at 520. he contended that continuity and stability (both with their mother and with this court) for the children was paramount to their best interests. to a man with whom she had no previous acquaintance. 133 Id. on account of the tender age of the infants.” Id. though illegal due to the prohibition on remarriage after divorce for adultery at that time in Pennsylvania. “She is said to have received a good education in a convent in Canada.”). from whom the unfortunate history of their parents can be no longer concealed? If they are permitted to remain with their mother. her guilt and her misfortunes. at 45. was known to the court. that neither her years. there were strong reasons for permitting them to remain with her. too late.2008] BEST INTERESTS OF THE CHILD 101 to trust him with custody of his little girl. at 521.”131 Three years later in the father’s plea for custody modification. 5 Binn. and having been married. Id. they would be withdrawn from the superintendence of this court which might be essential to their welfare. 131 Id. a Pennsylvania father sought custody of his two daughters. or from the unfortunate speculation of her own mind. which was a criminal act at that time. 1815). she discovered. but cannot be justified. by her mother’s command. the court took clear note of its discretion in determining the application of the rules of law at hand. from conversation. it was judged improper to take them from the mother.130 The children’s custody had initially been awarded to the mother “when. her habits. Id. 520 (Pa. she may be pitied. which culminated in a marriage to the man. The mother argued that she had no other flaws but for her adultery. each parent presented arguments based in the welfare of the child: the father arguing that the children’s best interest and their future moral core would best be served by understanding that their mother’s morals were corrupt in her adultery. at too early an age. in Commonwealth v. will they not conclude that her conduct is approved? There is one circumstance.133 The court was most persuaded by the father’s moral arguments that the children needed to understand the sacredness of the marriage vow. but there were many circumstances of extenuation. he said. hence. which has great weight with me: I am satisfied. 130 Id. at that time. (“The law was.128 This was a major departure from the common law paternal preference. on the expedience of delivering the infants to the custody of the father. as (despite her adultery) she was a good mother. Though due largely to their tender age. but are to determine according to our discretion. nine and twelve. while they were under her management. when they made their former order. “We are not confined to an abstract question on the rights of guardianship.129 In this case. Counsel for the mother argued that the court had previously acknowledged the mother’s adultery when it originally awarded custody of the children to her. that either from books. What effect will the decision of this court have on the morals of these children. the mother has fallen into a fatal error. If they were suffered to be carried to New York. 134 Id. particularly as the youngest was but nine years old. That it was censurable in the highest degree. must be admitted. The conduct of the mother.” Id. on a fundamental point of morals—the 129 128 .132 and the adulterous mother arguing that the children’s interests would best be served by continuity of their custody with her. fully considered and declared by the court.134 Nonetheless. In 1815. and as the morals as well as the learning of the children had been carefully attended to. 132 It is worth noting that the court was somewhat sympathetic with the mother’s situation which led her to the adulterous act. Addicks. at 521. her education nor her disposition accorded with those of her husband.

why it was that they were separated from their mother. if not in actual practice. “a view which was theoretically. 140 Wilder. 10 in the face of a change of custody to the father for the girls’ “future welfare. 139 Id. to ultimately determine what would work to the greatest welfare of the children. therefore. Id. were first introduced in Addicks). Id. the court clearly believed that particularly the eldest child was of a critical age to learn morality. the court’s rationale rests on the importance of children understanding the seriousness of the marriage commitment and how that affects a child’s moral base. see also Klaff. supra note 125. Even with this caution. … Although the mother claimed that the father was abusive. taking into account an easier transition for the children.139 Some scholars argue that Addicks presents the concept of the best interests of the child as a rationale for the tender years doctrine. more 136 135 . 137 See generally id. Wilder argues that a mother’s adultery was the kiss of death to any authentic best interests analysis.” Id. The court had used the most ardent common law rule of paternal preference and pitted it against the developing doctrine of tender years. tender years and best interests.137 Used for transferring custody from the mother of children of tender years to their father once they came to be of age to form moral opinions. in happiness or in misery. “Even at its genesis.102 JOURNAL OF LAW & FAMILY STUDIES [Vol. At the present moment.” Id. the court made it absolutely clear that part of that which was best for the children was that the siblings not be separated. Arguing that the tender years doctrine presented a maternal preference that could be easily overcome by the mother’s unfitness. unless dissolved by the law of the country.”135 the court recommended no “abrupt removal” from their mother “but to conduct the matter so as to avoid a violent shock either to them or their mother. in that “every moment is important. by inspiring them with fixed principles on this essential article.”140 Indeed. to guard the children against the consequences of this pernicious mistake. It is the more incumbent on us. “[I]t is important that the sisters should not be separated. supra note 63. supra note 63. we must decide for both. combining such an analysis with its own discretion. but they soon will’ and when they inquire. as far as our opinions can teach them.138 In step with the concept of determining what was best for the children. 138 Id. the marriage contract. For these reasons. they will be taught. (finding paternal custody in best interests of the child when the mother had committed a prior bad act. at 340–41 (arguing that the two doctrines. the court ended its inquiry with the mother’s adultery. particularly in adultery. 141 Klaff. at 342. and the education of the next three years will probably be decisive of her fate. they may not reflect on the subject. child-focused. regardless of the tender years doctrine). in sickness or in health. the tender years presumption is encased in the best interests standard.” Id. that the children should be delivered to their father. that in good fortune or in bad. but the latter offers much more discretionary latitude. at 212. the best interests of the child doctrine was misleadingly cast [in Addicks]. Id. at 213. 349–53 (demonstrating through case history analysis that the tender years presumption is generally overcome with a showing of the mother’s unfitness. Id.”136 Addicks appears to be the first use of the best interests of the child as a legal standard. is sacred and inviolable. and many others which it is unnecessary to mention. I am of opinion. and to fortify their minds. when we decide for one. therefore.141 obligation of the marriage contract.

.144 There was no discussion of how the child’s welfare might be affected by the adulterous convict father’s rights. 147 Id. in a general sense it is true. 143 the court’s ruling relied heavily on De Manneville and completely adhered to common law principles of paternal parental rights. it will also consult its personal wishes. When. therefore. the law presuming it to be for its interests to be under the nurture and care of his natural protector. 142 (1824) 9 Moore 278. but not absolute when circumstances endangered the child.”146 Parents’ rights to protect children were inalienable. continued to hold strictly to the paternal preference rule again in 1824. Blisset’s case is decision to shew.). Simultaneously. that if the father appear to be an improper person to have the custody of his child. But this is not on account of any absolute right of the father. the court saw an obligation to look at all the facts at issue in determining the proper application of that right. parental duty with reference to its welfare. and ascertain whether it will be for the real. (2 Cranch) 520 (1824). The court here used its discretion in applying the common law rules alone. at 282. and one opposing opinion: Independently of these authorities.B. 148 Id. Id. The court cited several other cases in agreement. 145 2 D.147 The Green court declared that the rights of the parent existed for the benefit of the child and were subordinate to the child’s welfare when it was endangered. It will free it from all undue restraint. and endeavour. at 32. permanent interests of the infant and if the infant be of sufficient discretion. it will look into all the circumstances. and a “wide discussion arose as to the right of the father to have the custody of the infant under the circumstances of the case. the Court of King’s Bench has a discretionary power to assign the custody of the child to a third person. however. As to the question of the right of the father to have the custody of his infant child. across the Atlantic the hard and fast paternal presumption was challenged in Rhode Island by the new emerging and formidable standard of the welfare of the child in United States v. De Manneville ruled the day. but for the benefit of the infant. and it be of too tender years to choose for itself.C. An imprisoned father living in adultery had taken his six year old child from the child’s mother by “stratagem and fraud” in Ex parte Skinner. 278 (K. no trend towards a new legal standard for children was established by Powel or any other case in Great Britain’s courts. 144 Id. at 31. at 31–32. Clearly. Green. to administer a conscientious. 143 Id. and to withdraw him from other persons.145 Upon the motion of the father asserting his paternal rights by law. concluding that the father had a right to take his child from the mother and the court had no authority to interfere in the case. 146 Id.148 The court proclaimed that its own discretion was the basis for proper application of particularly her adultery). both for maintenance and education.2008] BEST INTERESTS OF THE CHILD 103 English courts. as far as possible. Id. the court is asked to lend its aid to put the infant into the custody of the father. at 279–80.142 After a discussion of guardianship by parens patriae resting in the King’s Bench to have jurisdiction to control the right of the father to the possession of his child.

The court there thought it for the interest of the child to give the custody to the father. 154 (1836) 111 Eng. the court saw no alternative to granting custody of the children to their father. 10 common law rules. The same could not be said of England. the court did not find the father intemperate nor unfit. are governed by the judicial discretion of the Court.” Id.”155 England’s courts continued to apply the “It is an entire mistake to suppose the court is at all events bound to deliver over the infant to his father. This case likened American judicial discretion to English authority of the king. This ruling so appalled a lawyer in the case. nor had the mother filed for divorce. In the case of a child of tender years. In 1834.151 which allowed the court to see it in the child’s best interests to not interfere with the writ and allowed the rules to work together to govern and regard the good of the child. the court even cited De Manneville as not inconsistent with that doctrine.104 JOURNAL OF LAW & FAMILY STUDIES [Vol. “Unlike the American courts. 922 (K. when it declared “the good of the child is to be regarded as the predominant consideration. as the courts there were embroiled in a conflict between applying the common law rules toward near absurdity and a common sense reform of the rules. but a purpose for applying the existing rules regarding children. 155 Wilder. 153 Wilder. “The unauthorized separation of the wife from her husband without any apparent justifiable cause. 922.152 The best interest of the child as a legal standard was not a new rule. The Briggs court saw the best interests standard as inherent in the legal rights vested in parents. at 213. 150 33 Mass. is a strong reason why the child should not be restored to her. asserting that the holding in De Manneville “supposes its existence. supra note 125. the good of the child is to be regarded as the predominant consideration. (citing the traditional common law rules of paternal preference and coverture. Upon review of the facts and circumstances. 151 Id.” Id. The court saw that the unjustifiable family separation was not good for the child.) 203. Lord Talfourd. and relying on both De Manneville and Addicks. that he succeeded in a three year campaign to reform the law which ended in the British Parliament 149 .” Id. and the father brought a habeas corpus writ to the court to reclaim the custody of his children. the court stated that the application of the common law rules or the tender years doctrine were to be done so with the child’s interest dominating). 149 The best interest of the child as a legal standard was gaining momentum by judicial discretion. at 213. in directing which all the circumstances are to be taken into consideration. 205 (1834). 152 Id.”153 In the 1839 case of Rex v. in an action by the state for habeas corpus for the child which the mother took from the marital home alleging the father’s intemperance. Massachusetts followed suit in Commonwealth v. a mother took her children from the marital home where the father had moved in his paramour. Greenhill. or that the latter has an absolute vested right in the custody. and all action upon it. the writ of habeas corpus. as parens patriae. King’s Bench judges were reluctant to depart from precedent and contravene the father’s right to custody even in a very compelling case. (16 Pick. Wales Briggs. Id.”150 This effectively proclaimed that any parental right was based on the parents’ duty to act in the best interests of the young child. Interestingly. As a general rule.).154 “Although it was obvious to the court that the husband was using the children to force the wife to return to the marital residence without having to give up his extramarital liaison. supra note 125.B. Rep.

Id. That legislation became known as Lord Talfourd’s Act: An Act to Amend the Law as to the Custody of Infants. And some civil or municipal law in setting bounds to his parental authority. The rights of the parents must in all cases yield to the interests and welfare of the infant. such custody will not be transferred to the father by the process of habeas corpus. 156 25 Wend. . 158 Id.157 The court was very clear as to the standard it felt it should apply. to such custody.” Id. The view the court had of its responsibility as parens patriae is worthy of repeating here. The court set out very clearly that it was applying the best interest standard. “The interest of the infant is deemed paramount to the claims of both parents. Barry laid out the conundrum that these conflicting legal rules brewed. Meanwhile. at 213–14. 157 Id. the nascent standard for children was setting deep roots. 1839. [T]he great principle which runs through nearly all the American and the earlier English cases. peculiarly requiring a mother’s care and attention. and of a delicate and sickly habit. c. is that which is stated by Thompson. Because the father had agreed to leave the infant with its mother and she returned to her own father’s household. in the mater of Waldron. It seems then. . Id. . it owes allegiance to the government of the country of its birth. at 240 (emphasis in original). . the father has no paramount inalienable right to the custody of his child. 2 & 3 Vict. [W]hen the parents live apart under a voluntary separation. . . 1840). a year later in America.Y. that by the law of nature. But the former is derived altogether from the latter. comfort and interests of such child in regulating its custody during the period of its minority. the court would not remove custody of the child to his father.” As a necessary result of this principle. a New York court in Mercein v. Ch. but upon review that decision was reversed. 343–44 (Eng. exercised in reference to their best interests. when speaking of the custody of the infant. in the case of the claim made by the father. viz: “It is the benefit and welfare of the infant to which the attention of the court ought principally to be directed. By the law of nature. and in entirely or partially depriving him of it in cases where the interests and welfare of his child require it. based upon an apparent application of the tender years presumption being better for the child. J. even though he was “then being a subject of the king of Great Britain. And such government is obligated by its duty of protection. does not come in conflict with or subvert any of the principles of the natural law. Id. . the father has no paramount right to the custody of his child.). . and the father has left an infant child in the custody of its mother. 418. In the civil state there is no inequality between the father and mother. . [then a few sentences regarding the importance of tender years].”158 The Mercein court viewed the BIC standard as an American legislating an exception to the paternal preference rule that formed the basis of the tender years doctrine. it follows that the custody of infant children must always be regulated by judicial discretion.2008] BEST INTERESTS OF THE CHILD 105 paternal presumption to their own discredit. at 257. 54. There is no parental authority independent of the supreme power of the state. 13 Johns.. Id. This is the predominant question which is to be considered by the court or tribunal before whom the infant is brought. 64 (N. when the infant is of tender age. . to consult the welfare. and most likely to the harm of children and women as well. and is entitled to the protection of that government.156 The trial court had applied a pure paternal preference finding custody of the baby girl in the father. at 257 (emphasis in original). The moment a child is born. intermarried in the city of New-York. at 241. In 1840.

164 Anonymous (1851) 61 Eng. 160 159 .). . Mercein. (5 How. Green. This is the matter in dispute. and society of their child.000. 46 U. the controversy is between the father and mother of an infant daughter. 260 (Ch. a clergy father of six left his home and was charged and apprehended Id. of its object. the Court noted that family matters were outside. 164 In Anonymous. but also (even unwittingly) began setting children as adversaries against their parents. even when a father was acquitted of a crime.163 Addicks. Mercein was upheld in the federal circuit court for the Southern District of New York. Indeed. In the case before us. granting sweeping authority to a court over a child and his or her family in such a fashion that the case seems to have at once crowned the best interests standard.”161 Distinguishing a child’s welfare from a child’s liberty interest. Before the middle of the 1800s. They are living separate from each other. 10 development refined out of earlier English law. at 116. supra note 57. this new and emerging American family law jurisprudence placed a duty to children upon parents and courts paramount to common law rules which were previously dictated by parental rights alone. and each claiming the right to the custody.S. And it is evidently utterly incapable of being reduced to any pecuniary standard of value.160 The High Court took the opportunity. Rep. were under an obligation to act in the best interests of the child.” Mercer. 161 Id.159 Reviewed again in the Supreme Court of the United States seven years later. Mercein placed a crowning culmination on early American jurisprudence regarding children. even above. “It is not a question of the personal liberty of the child. and begun its decline toward the greatest concern over the best interests standard itself—judicial overreach abridging inalienable parent rights. but a great extension. nor had they jurisdiction to change the ruling. to recognize and affirm the duty of the state courts “to make such orders as will be for the benefit of the child. as it rises superior to money considerations. at 20. English courts seriously began to apply rules designed to work for the protection of children. 163 “[T]he viewpoint reflected in this quotation perhaps is not a utilitarian one. at 116. he was denied custody of his children. at 120.106 JOURNAL OF LAW & FAMILY STUDIES [Vol. in 1851 rather than purely and legalistically deferring to the paternal preference.) 103 (1847).162 the legal standard regarding children was that all parties and their respective rights. the jurisdiction of the Supreme Court of the United States and reviewable as defined by act of Congress only when the dispute exceeds $2. Barry v. After this series of American decisions regarding children. care. Maybe it reflects yet another natural law—the State as the supreme arbiter of all relationships. based on what the court deemed in the children’s best interest. Id. Briggs and Mercein form a foundation of cases that set the framework for the best interests of the child as the legal standard applied to cases regarding children. . . It is not in substance at all that great writ of English or American liberty. The language in Mercein can seem intimidating and broad. however.” Id. For example. the Court recognized that there was no legal reason to grant a writ of habeas. peaked its credibility. particularly parents in their parental rights. if not entire perversion. but of its custody and nurture. 162 Id.

because they associate with him. the court considered the positive qualifications of their mother in the care of the children and the negative reputation and social effects on the children due to “bearing the name of the said petitioner. “‘[T]he rights of the parents to their children. supra note 69. 384 (1869). When the Court refuses to give possession of his children to the father.2008] BEST INTERESTS OF THE CHILD 107 “for the commission of an unnatural crime. 2 Sim. FAMILY LAW IN PERSPECTIVE 198 (2001). the Massachusetts Legislature codified the parents’ rights as they related to the best interests standard in 1855.J. firmly based in the best interests of the child. 324 § 752.”165 The best interests of the children trumped the father’s rights to custody. 2 BISHOP ON MARRIAGE 444 (1873). Id. Today throughout the United States.169 Thus began the American concept of adoption. at 62. adoption is child centered rather than adult centered in every State’s codified adoption laws. supra note 69. in the absence of misconduct. When the father returned to reclaim custody of his children.) at 69. ch. 171 Reprinted in MAXWELL H. 170 WADLINGTON & O’BRIEN. at 152. supra note 167. at 198. at 151–52. Baird demonstrates how solid the BIC standard was becoming in American family law by 1869. 165 . and the Court will perform that duty if the father has so conducted himself as that it will not be for the benefit of the infants that they should be delivered to him—or if their being with him will affect their happiness—of if they cannot associate with him without moral contamination—or if. O’BRIEN.168 This first-of-its-kind American law emphasized the needs of the adopted child with the objective of benefiting minor children in need of parents.170 Evidencing momentum for the new doctrine regarding children’s interests. BLOOMFIELD.” as one charged with such a heinous (yet unnamed) crime. “[T]hat were any communication known to exist between the said children and their father. see also WADLINGTON & O’BRIEN. at 198.” Id. 172 Saddened by the court’s intrusion into the “private household” and reviewing the facts. but no witnesses appearing he was acquitted. 168 MASS. GEN. For example. they would be wholly excluded from respectable society. 167 Post. 169 See MASS. the court noted that its ruling was based on “its general jurisdiction over the interests of Id. at 198 (noting that adoption’s objective was to benefit minor children in need of parents). Justinian was adopted by his uncle so he could become emperor of Rome. Id. AMERICAN LAWYERS IN A CHANGING SOCIETY 119 (1976) (citation omitted). Post. Eq. at 63–64. it is the paramount duty of the Court to do so for the protection of the children themselves. 172 21 N. at 54. 324 § 752 (West 1854). and the happiness and welfare of the children are to determine the care and custody. supra note 167. It set the tone for adoption statutes in the rest of the country. ch. WALTER WADLINGTON & RAYMOND D. see also WADLINGTON & O’BRIEN.”166 Another area of law regarding children took an immediate and radical departure from a basic concept of Roman law. Post argues that Christianity and its virtues were what caused this change in adoption tradition to favor what was best for the child. other persons will shun their society. “for the protection of the children themselves. in that the primary concern for the welfare of the child was reflected in American adoption statutory law. 166 Anonymous is also reprinted in JOEL BISHOP.’”171 The New Jersey case of Baird v. LAWS ANN. are equal. LAWS ANN. (N. GEN. supra note 167.S.167 The first adoption law in the United States was endorsed in Massachusetts in 1851.

995. Schwartz. an appeal to the discretion of the court… In the present case. even when his father had filed a writ of habeas challenging the boy’s confinement. which argued that the ruling departed from established common law in that only a child’s tender years or a father’s unfitness can overcome the paternal presumption under law. Tanenhaus. 33 WM. but was eventually overcome by the new standard courts were applying regarding the best interests of the child. technical right of the father. Looking Ahead: The Evolution of Children’s Rights. 483 (1954). at 370–79. 178 Rather than focus on a rights analysis. the New Jersey court affirmed again that the paternal preference rule was subordinate to the best interests of the child. 1 (1967). 179 This 173 174 Id. in view of the best interests of the children. at 384. at *6. The legal right of the father will not be passed by. that the case must be determined. At common law the paternal presumption prevailed. Still other scholars argue that substantive rights for children were not recognized until much later. except when.S. It is upon this principle. Remnants of that presumption continued in parts of American law.174 This decision was transparently based on the best interests standard. 1559 (1995) (arguing that Brown v. at 385. in the opinion of the court. but the welfare of the child. O’Conner v. but rather upholding its value. and In re Gault. 178 Id. Board of Education. 177 For a thorough review and analysis of Turner see David S. REV. “Who Owns the Child?”: Meyer and Pierce and the Child as Property. Id. 179 Tanenhaus. 176 55 Ill. Legislation in Illinois that allowed the imprisonment of a fourteen year old boy in a Chicago Reform School. 1058 (1992) (contending that children’s rights cases were first brought by African Americans to challenge school segregation laws at the turn of the century). was deemed unconstitutional and not in the child’s welfare. *5 (1870).” 173 Not having abandoned the common law. 68 TEMPLE L.108 JOURNAL OF LAW & FAMILY STUDIES [Vol. On such an occasion it is not the dry.175 In this court of equity. others argue that the case and its progeny were an extension of judicial understanding of the needs of children. therefore. Turner. & MARY L. strict law was not as important as the welfare of the child. Barbara Bennett Woodhouse.176 A post-Civil War concept of rights of persons inured to children. Needs of children as manifested in duties owed to them by adults is . The application under such circumstances is. 1557. the Illinois Supreme Court found guaranteed due process protection to children in the state’s constitution in People ex rel. the duty of arbitrating thus between the claims of these rival parents. were the first cases involving children’s rights). & HIST. Between Dependency and Liberty: The Conundrum of Children’s Rights in the Gilded Age. The court’s effort to balance the competing rights is apparent in the opinion. the well-being of the child requires such supersedure. REV. 10 infants.S. By 1870. Id. Id. 280. it is felt to be one of painful responsibility. 175 Id. 387 U. at least in dicta. which will form the substantial basis of judgment. 351. REV. See Theresa Glennon & Robert G. Tanenhaus contends that a rights focus fixated on more recent history of the late twentieth century ignores earlier historical illuminations on matters pertaining to children. Foreword: Looking Back. supra note 177.177 Though some scholars argue that it was with Turner that cases regarding children turned toward a rights approach. it is clear the jurisprudence was developing for a century prior that placed the interests of the child as paramount in a court of law. obviously. Application of the BIC as a legal standard caused a strong dissent. 355–70 (2005). 347 U. 23 L.

In justifying this change of focus. and often worked in tandem with the presumption favoring biological parents. As late as the 1880s. The Kansas Supreme Court in 1881 recognized the welfare of the child as the overriding consideration in Chapsky v. the North Carolina Supreme Court first changed the rule of fathers’ rights in custody disputes. Wood. making them “their paramount consideration. It did so by focusing on children. but was acknowledged as a change in the law as it had been previously known. the court stressed that numerous courts were moving way from notions of “strict legal rights of parents” and “look more to the interests” of children. but settled on the overriding interests of what was best for the children. *2 (Kan. . the paramount consideration is. at 144. for example.2008] BEST INTERESTS OF THE CHILD 109 approach was followed and expanded upon in the 1877 Ohio case of Clark v. who have discharged all the obligations of support and care which naturally rest upon the parent. The BIC standard became quite formidable when the new standard was used to overturn the natural parent presumption. In 1883. 184 GOLDSTEIN ET AL. .183 The best interests of the child was recognized as a legal standard that maintained continuity for children. Id. the right of the one who has filled the parental place for years should be considered.182 The trend toward the new legal standard for children took time to occur. .. 180 32 Ohio St. supra note 104. 181 26 Kan. 183 GUGGENHEIM. 1881). 182 Id. . (citing GROSSBERG. supra note 1.181 The Kansas court struggled with the common law rules. it is but fair and proper that their previous faithfulness. 299. the BIC concept nearly outgrew all other rules of law. No one is wise enough to forecast. then. This distinction must be recognized. a New a clear thread in the cases traced here from 1789. in many states men continued to enjoy a presumptive right to their children’s custody. . at *2–3. when the labor and care are of a kind whose value cannot be expressed in money —when all these labors have been performed and the child has bloomed into bright and happy girlhood. Bayer. will depend mainly upon the question whether such custody will promote the welfare and interest of such child. and the interest and affection which these labors have created in them. but would look to an analysis of the best and highest interests of the child alone. The concept of the best interests of the child spread with the westward expansion of America. and yet. they who have for years filled the place of the parent. where that court ruled that it need not be constrained by the rights of the parents in a custody dispute. 184 In 1889. 180 In Clark. yet we have to act upon these probabilities from the testimony before us. what will promote the welfare of the child?. Id. supra note 4. . [When a] child has been left for years in the care and custody of others. should be respected. is a question of probability. The right of the father must be considered. and especially when they have discharged these duties during those years of infancy when the burden is especially heavy. Id. or determine absolutely. whether the courts will enforce the father’s right to the custody of the child. at 102–03. 650. What the future of the child will be. not women. Perhaps it may not be technically correct to speak of that as a right. 305 (Ohio 1877). have discharged all the obligations of care and support. at 225). guided by the ordinary laws of human experience. what or what would not be best for it. Above all things.

189 JAMES SCHOULER. 7 A. supra note 4. Coffee v. Collins. 2 MARRIAGE. see. 650 (1881)). Collins). 197 U. a 1905 case upholding the constitutionality of a compulsory smallpox vaccination law. that the judges’ task is to “fix the future status of the child [] with some stability and permanence. 1886).J. Massachusetts. after recognizing that evidence of the past performance of the parents and foster parents was the best guide to determine the custody of the child. 11. 832 (N. (11 Bush) 403. by the end of the nineteenth century the BIC standard was quite developed. supra note 104. 567 (Va. Another case that same year in Virginia held that the court should exercise its discretion. where a child’s choice controlled the matter of custody. SEPARATION AND DOMESTIC RELATIONS 2025–26 (1870). at 832.S. this in turn greatly broadened judicial discretion in regard to “the true interest of each child. 82 Va. 27–39 (1905). 1889). see also Marshall v. Because the mechanical application of the presumption would not serve its purpose. allowing the court to rely on the child’s wishes in its custody determination. DIVORCE. 1939) (consulting child’s wishes to the extent that it would serve the best interests analysis). 187 GOLDSTEIN ET AL. 188 GROSSBERG. Smith v. 95–97 (Fla. 1886). 10 Jersey court noted in Richard v. but could look to the child’s wishes as a factor in that determination. “Courts have from time to time recognized that the earlier presumptive preferences could be overturned if applying them would not serve the child’s need for continuity of care. “In controversy over its [the child] possession. at 187 (discussing Richard v.J. Wood. Ch. Solnit and Freud in their book Beyond the Best Interests.. 186 185 . Richard v.110 JOURNAL OF LAW & FAMILY STUDIES [Vol. 26 Kan. 95.” Id. Reams. the court was willing to overturn it. 1875). Collins became precedent for using the best interests of a child as the legal standard in New Jersey. Id. Jesup. 831. 191 74 Ky. overturned the presumption in favor of fathers. *7–8 (Ky. GOLDSTEIN ET AL. In 1886. An example of this broadened judicial discretion is found in Jacobson v. 433.2d 829 (N. the Supreme Court of Kansas. 1893) (granting the wishes of a child of 16 because the court found that such a decision was in the best interest of the minor).”187 As this chronicle of case law demonstrates. Black. at 254–71. 190 82 Va.”185 Although the court stated that natural parents have superior rights.186 The Richard case was discussed at length by Goldstein.”189 Some ambiguity is apparent in a review of additional cases regarding whether the best interests of the child analysis was more rights oriented than welfare oriented..g. Swimley found a court reasoning that “the rights of the child” are first to be considered in a custody proceeding. its welfare will be paramount consideration in controlling the discretion of the court. supra note 104. at 192 (referring to Chapsky v. 14 So. it recognized the child’s need for continuity and ruled for continuing custody with long term foster parents. The court reasoned that the child was of proper age to make such a decision since she was 13. Similarly. e. Smith. the Virginia case of Merritt v.191 Still other courts objected to such legal 17 A.. 4 (Va.190 A similar outcome was reached in Kentucky in 1875 in Ellis v..188 Apparently expanding the governance of the family by the courts. Some scholars believe it began to take away parental authority and was responsible for largely reducing the rights of parents generally. in an earlier case.

197 GROSSBERG. 199 WARDLE & NOLAN.C.’ and was boosted by the rise of the first family court in Buffalo. Ex Parte Reed. 43 Iowa 653 (Iowa 1876) (same). . Society of Sisters. 158.g. which the court found in violation of child labor laws).197 Much of the law regarding children started to become known as ‘child welfare reform. 193 For a very thorough overview of cases that considered a child’s wishes as a factor in awarding (or denying) custody see D. IN WHOSE BEST INTEREST?: CHILD WELFARE REFORM IN THE PROGRESSIVE ERA 160 (1982).195 it was limited in Prince v.192 These cases also reveal how the best interest analysis was a tool of judicial discretion as it was used in some jurisdictions to allow a child’s wishes to be a factor in a custody ruling. ruling that an exercise of the court’s discretion allowed the court to disregard the child’s wishes and look solely to the welfare of the children.L. The widespread desire to use the law to encourage proper family life led to statutory directives and judicial decisions that subjected parents and children to ever-tightening controls… The standards placed all parents— including mothers—and custodians at the mercy of judicial assessments of their capacity to rear the nation’s free citizens. at 858–89.193 The use of rights for children tended to posture their interests against those of their parents.196 Increased judicial discretion in cases regarding children affected numerous families. but in other jurisdictions to deny a child’s wishes when the court deemed the child a poor judge of what was best for him or her. 194 262 U.S. 390.199 Paternal preference completely gave way in late 1890s to the presumption that children need their mothers more (than fathers) in tender years. supra note 4. 195 268 U. setting the trend for a family court system in each state jurisdiction. 196 321 U. New York in 1909. 510. 604. 401–03 (1923) (finding parents a have right to direct the upbringing of children. Shaw v. at 283. O’Neill. 534–35 (1925) (finding parents have a right to direct the education of children. Nebraska194 and Pierce v.. 4 A. it is clear that the BIC standard was the foundation for the tender years presumption—a doctrine that favored the mother’s custody of the children when they were young. 200 Id.R. *1 (S. 166–67 (1944) (recognizing “a private realm of family life which the state cannot enter” but limiting that constitutional protection when a guardian took her nine year old ward canvassing for the Watchtower. Though parents’ rights to direct the upbringing of their children were affirmed in Meyer v. 198 SUSAN TIFFIN. 19 S. even to learn German language in the post WWI era). Child’s Wishes as Factor in Awarding Custody. S. 1883) (noting that the wishes of the child were disregarded as contrary to the child’s best interests).3d 1396 (originally published in 1965). This tender years presumption prevailed in many jurisdictions where laws were established stating that mothers were presumptively entitled to custody. Massachusetts.200 This presumption. e.W. which could only be overcome by evidence of 192 See.S. supra note 62. Nachtwey. 198 Also based on this review.2008] BEST INTERESTS OF THE CHILD 111 rationale. which includes the choice for private religious education).C.

2d 562. Ct. 564 (Or. Derby. Ewing. STAT.S. and those decisions rested on pure discretion. and the concept of tender years was replaced with a presumption that afforded a custody award in divorce to the parent who was the primary caregiver to the child during the marriage. Ethical Intuitionism. 1981) (holding that the “tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex”). 206 Id.D. but also meant the continued broadening of the state’s interests in its future citizens. L. Gault recognized a child’s right to procedural (due process) safeguards. 210 Oregon’s statutory and case law on custody provide a good example.C. in AN INTRODUCTION TO ETHICS 161. It apparently and cleverly led to a movement for children’s rights.206 “The Court attacked juvenile court as an institution established to help children but which rarely met its lofty purposes.137(3) (1981) (no preference for mother over father) and OR. 202 SUZANNE RAMOS.205 The most important children’s rights case in American history. Ex parte Devine.209 This primary caretaker presumption abolished all gender based presumptions for custody. 1977). §107. REV. THE COMPLETE BOOK OF CHILD CUSTODY 35 (1979). the best interests standard could be viewed as a form of ethical egoism—serving the greatest good of the State. supra note 1. at 7. however. when equal protection clause claims of gender preference brought about the initial demise of the tender years doctrine.201 Making custody decisions based on children’s needs often meant keeping kids with their mothers. 63 N. 208 406 U. This case recognized the primary care-giving parent (regardless of gender).. 2d 686.”204 This type of jurisprudence pushed the best interests standard to be so completely dependent on judicial discretion.112 JOURNAL OF LAW & FAMILY STUDIES [Vol. modified on other grounds. STAT. App. 203 See A. as the primary caretaker presumption was shaped by Derby v. 571 P. §107. 1977).”203 “A judge’s intuition is a judges’ discretion to decide.2d 1080 (Or. 209 See generally Marcia O’Kelly. or “intuition. 481. “In sum. 205 In re Gault.137(4) 201 . Courts ruled that there could be no preference or presumption based on gender. 387 U. 204 Mercer. where Amish parents were not required to comply with the state’s compulsory education after eighth grade under the due process precedents of parental rights established in Meyer and Pierce.” 207 Parents’ rights. 1977). 572 P. Blessing the Tie that Binds: Preference for the Primary Caretaker as Custodian.210 Remnants of Cf. The landmark decision finding constitutional rights for children came from the Supreme Court of the United States in 1967 in the case of In re Gault. REV. 1. 208 Constitutional concerns over gender equality then entered the scene. Ct. App. at 25. supra note 57. 71–72 (1967). continued to be the law in many jurisdictions until the 1980s. 697 (Ala. were then reaffirmed in Wisconsin v. 205–06 (1972).S. 10 unfitness. independent of the parties’ wishes or the dictate of a pre-ordained law. 207 GUGGENHEIM. The rule was later codified as a presumption at OR. 205. REV.” Id. 398 So.202 The court was often the final arbiter on what it took to raise responsible citizens. Yoder. 164 (Robert Dewey & Robert Hurlbutt III eds. 483–84 (1987) (discussing the significance of primary caretaking in North Dakota custody contests between two fit parents of children too young to express their own preference).

THE NEUTERED MOTHER.215 In invoking the ‘best interests of the child.g. e.childwelfare. 784 So. The West Virginia statute was redrafted to give judges more detailed guidance in determining the best interests of a child in relation to custody or visitation.216 (1994) (no preference for father over mother).137 (1981).E.” Id. REV. 212 See.2008] BEST INTERESTS OF THE CHILD 113 the tender years doctrine. of a separation so long as to permit very strong bonds to develop between the child and the prospective adoptive parents. CODE § 48-2-15 (1980). “We continue to adhere to the view that the legislature was acting wisely in leaving the delicate and difficult process of fact-finding in family matters to flexible.2d 854. 216 In re New England Home for Little Wanderers.2d 277. A parent cannot be deprived unless some affirmative reason is shown for doing so such as a finding. CODE § 20-124.214 Attempts to balance codification of the BIC standard and case law with parental rights are evident in some cases. 176–93 (2002). individualized adjudication of the particular facts of each case without the constraint of objective guidelines. in which a preference for maternal custody is considered merely a factor along with other evidence hearing on the child’s best interests). or to threaten a satisfactory family with loss of children because by reason of temporary adversity they are placed in foster care. VA.g. e. 213 Statutes of individual states are sometimes criticized for the same reasons that the BIC standard is disparaged.. 1980) (listing factors the court considered in determining the BIC which were followed in case law thereafter). . either by defining the standard. Jeffreys ruled that both the BIC and parents’ rights are to safeguard stability and continuity for children. 214 See. Child Custody in Texas and the Best Interest Standard: In the Best Interest of Whom? 6 SCHOLAR 197. Raymon Zapata. . 203 (2003) (discussing the application of Texas’ statute and how factors listed in the statue fail to be analyzed in some high profile cases). DETERMINING THE BEST INTERESTS OF THE CHILD: SUMMARY OF STATE LAWS passim (July 2005). THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 12–28.212 Yet the best interest of the child doctrine remains the standard legal doctrine...211 and this doctrine is fostered ardently by some feminist family law scholars. DEPT. The New York case of Bennett v. Hollon. 328 N. e. do continue today. Oregon incorporated interdisciplinary knowledge of child development. 947 (Miss. 283 (N. U. 213 See generally CHILD WELFARE INFORMATION GATEWAY. or using both techniques. W.2d 1005.E. jurisdictions) [hereinafter SUMMARY OF STATE LAWS].g.3 (1994). Seymour.Y. W.gov/systemwide/laws_policies/statutes/best_interstall. 211 See. 2d 943. 1007 (Conn. however. MARTHA ALBERTSON FINEMAN. or by listing guidelines and factors to be considered. and listed factors with guidelines. pdf (summarizing the Best Interest of The Child laws in all 50 states. 1975). STAT. 1976) (holding that the best interests of the child can only be considered after extraordinary parental circumstances affecting the welfare of the child have been established). 861 (Mass. OR. The free reign of judicial discretion in the name of the best interests of the child led to some states codifying their standards. OF HEALTH & HUMAN SERVS. 2001) (reaffirming a weakened version of the tender years doctrine. VA. 215 356 N.S. available at http://www.’ the Legislature did not intend to disregard the ties between the child and its natural parent. at 1007.S.. and other U. even if only a refrain. Statutory codification of the BIC standard occurred in West Virginia in 1980 with an initial draft of a BIC definition (but with no guidelines). § 107. 433 A. . Hollon v. The Connecticut Supreme Court defended that state’s codification of the best interest standard despite the clear guidelines in Seymour v.

self-defeating. the state’s sometimes hazy role as parens patriae. http://www. in PROVIDING CIVIL JUSTICE FOR CHILDREN 8. at 863–64. subjecting the interests For a listing of each state’s code. Geach & E. APPLICATION (OR NOT) OF THE LEGAL FOUNDATIONS The conflict of rights between parents and children. Judicial discretion does indeed afford flexibility.” and a high sounding self-deception requiring “a highly individualized choice between alternatives. CONS. as the court always will lack all the information necessary to make an objective decision. REV. IV. “Courts may be in the poorest position of all to know what the facts are. supra note 39. every state has a statute requiring that the child’s best interests be considered whenever decisions regarding a child’s placement are made. 218 217 . custody decisions are based on short hearings (if any testimony).” LYNN D. yet application of the standard has been. 220 BREEN.edu/Wardle/FundPrinsFamL/36CUSTOD. eds.byu. ST.” BREEN.’ but the ability to predict what judicial ruling will produce the best results for children is never actually possible.114 JOURNAL OF LAW & FAMILY STUDIES [Vol. § 453 (2003)). a similar statute). 885. WARDLE.htm (last visited May 22. even calling the best interests principle “unjust. at 890 (noting also that New Jersey is the only other state that has proposed. Szwed. 1983)). but in many cases is required to sort out the law in light of the facts. 221 WARDLE & NOLAN. STAT. 903–05 (advocating a best interests analysis be applicable to frozen embryos rather than other state statutes which may or may not apply because “it is the public policy of Pennsylvania to favor childbirth over abortion” (citing 62 PA. Id. CUSTODY PRESUMPTIONS 3. THE BIC STANDARD. nor capricious. Louisiana has provided a statutory answer that codifies the best interest application to fertilized ovum. where the problems lie. supra note 39. L.”220 Mnookin argues that not only is there no consensus on what is ‘best. Great latitude in judicial discretion is not only allowed by these conflicts. Even new reproductive technology is demanding a legal standard by which to determine the fate of frozen embryos. and sought to be applied in the cases outlined in Section II. 219 See generally ROBERT MNOOKIN. and the lack of definition and guidelines have all leant to the difficulty of applying the BIC standard. at 54 (citing Robert Mnookin & E. supra note 213. Defining the Undefined: Using a Best Interests Approach to Decide the Fate of Cryopreserved Preembryos in Pennsylvania. Szwed. IN THE INTERESTS OF CHILDREN 517–27 (1985).218 Not all family law scholars are convinced that the BIC standard is the best way to decide legal matters regarding children.219 calling the notion “idealistic. Nonetheless. 8 (H. with heavy reliance on paid experts.law2. The Best Interests Syndrome and the Allocation of Power in Child Care. Professor Robert Mnookin has strongly argued against the use of the best interests of the child standard on the basis that it is too indeterminate to be of use in legal decisions. that discretion is not arbitrary. 10 Today. supra note 62.221 Others agree with this assessment.217 The foundations of the BIC doctrine show how important this standard is to American family law. 109 PENN. but grounded in the principles set out in Section I. see SUMMARY OF STATE LAWS. but not passed.” neglecting the rights and needs of parents.. and remains. the spectrum of judicial discretion. nor unlimited. virtuous. 2006). See Fotini Antonia Skouvakis. “The emphasis placed on meeting the needs of the individual child through the application of the best interest standard is demonstrated by the flexibility required by the standard. at 86.

769.”224 Furthermore. Solomonic Judgements: Against the Best Interests of the Child. The present child-centered doctrine has its problems. Artis. e.223 The naturally human limit of any judge is a point of contention that fosters criticism for BIC rulings. at 799. many judges view parenting in gender terms. but appreciates the dynamics of a BIC analysis as part of its very strength.”225 This school of thought argues that the BIC standard benefits mothers. 54 UNIV. Others in Custody Proceedings. Defining the Best Interest of Children: Parents v.” Id. 1. 79 ILL B.J.g.222 Historical family law scholar Claire Breen deems the BIC standard as important not only to the foundations of the jurisprudence surrounding children. It has been used to justify trends toward joint 222 See.228 The outcome in some circumstances has been a reinterpretation of the best interests of the child standard. ‘New beginnings’ are possible for best interests. the child. SOLOMONIC JUDGEMENTS: STUDIES IN THE LIMITATIONS OF RATIONALITY 123–29 (1989). as “many judges equate the child’s best interests with mother custody. in the 1976 Maryland case of Ross v. “So even though the child custody law is gender-neutral. 228 A Connecticut court pronounced this problem more than six decades ago: . Hoffman the court recognized its own limits in that the knowledge of judges is insufficient to “fix a period for which a parent may [cast] off the robe of parental responsibility both inwardly and outwardly. 224 364 A. 225 See Julie E. some judges maintain a firm belief in biologically driven gender differences in parenting abilities and openly admit that this belief may affect their decisions. 601–02 (Md. 226 Id.”226 The problem is the BIC standard is supposed to benefit children. instead of criticizing the best interests standard and suggesting alternative—reinventing the ‘best interests wheel’—more productive outcome might be achieved with a rethinking of. particularly when third parties fight parents for custody. thereby creating a “no fault” adoption system).2d 596. which. Ct. [T]he best interests standard may be described as a strand of tradition. For example. 1976). Jon Elster.227 or when judges are left on their own to decide the matter. 223 BREEN. 785 (2004) (showing statistics that report a persistence of a maternal preference among family court judges). Joseph Gitlin. . Judging the Best Interests of the Child: Judges’ Accounts of the Tender Years Doctrine. . before forfeiting the judicially espoused presumptive shield provided a natural parent. especially if the child is an infant. at 24. REV. 7 (1987). 38 LAW & SOC’Y REV. 567–71 (1991) (discussing how courts in Illinois are giving the BIC standard increasing deference over traditional biological preferences in custody disputes. Breen’s suggestions for those new beginnings stem from a theoretical approach that has implications beyond the scope of this paper when she adds: “However. should become the guiding tradition in the metatradition of societal cohesion as those traditions that coalesce to form the meta-tradition are to be regarded as dynamic and amenable to change.2008] BEST INTERESTS OF THE CHILD 115 of children to policy considerations. and generally leaving children worse off. 227 See H. App. supra note 39. 566.. CHICAGO L. An approach such as this would allow for the reconstruction of any erroneous interpretation of the message contained in the tradition of best interests. it is suggested. Spec. JON ELSTER.

33 A. 126 (Conn. Rothman. 229 Carbone. it is apparent that judges and jurists were working hard to balance universal moral law with welfare of children. and in making [these findings] availed himself of his personal knowledge. 392 (1997) (examining how a judge’s ethical framework influences custody awards under the BIC standard). the trial [judge]. to offer countervailing evidence or to know upon what evidence the decision would be made. 1943). Szentes. To characterize this transformation in summary fashion. and the jurisdiction which the judge exercises is the jurisdiction of the court. in CONFLICT AND CONSENSUS IN MODERN AMERICAN HISTORY 257. 879. 264 (Allen F. 232 People v. 1980). even knee-jerk response that you are masking your true. supra note 39. and it was closely linked with the BIC standard as a façade for judicial positivism.234 In effect. David J. Mercer. Woodman eds.116 JOURNAL OF LAW & FAMILY STUDIES [Vol.2d 397. at 45. self-interested. Rules of court which provide that posttrial proceedings in a cause shall be heard by the judge who tried the matter are entirely proper. not the individual judge of that court. To announce that you are prepared to intervene for the best interests of some other person or party is guaranteed to provoke the quick. The cause is before the court. the court noted that: An individual judge (as distinguished from a court) is not empowered to retain jurisdiction of a cause. at 731–32.. even with an abusive parent and genetic surrogate rights. App. 1980) (stating that a judge goes beyond his power to limit all future proceedings to be brought before him only).232 Some courts have tried to bridle and limit judicial discretion. 230 Mercer. 881 (Cal. 33 IDAHO L. 1958). twisting a standard for children to serve adults. which is in turn dependent upon the .233 Scholars have attempted to make reforms to the judicial application of the BIC standard by harnessing and directing a core set of factors. The danger arises when the dicta of the BIC doctrine is “used to justify any decision reached. They understood that children are best protected by parents who have the inalienable right to do so. REV. Osslo. Kpovacs v. and that parents are the truest protectors of their child’s best interests. as a basis for [his] findings. not of the judge. 323 P.”230 The ethics of judicial discretion continue to be a concern of family law scholars. 231 See generally Kathryn L. 161 Cal. One of the main difficulties with the standard of the best interests of the child has been in relation to the manner in which it is applied.231 In People v. . . supra note 57. The State as Parent. but the individual judge cannot order that such proceedings must be heard by him. Rptr. 5th ed.229 In the two hundred years of American family law jurisprudence traced here.2d 124. Ct. 233 In re Marriage of Matthews. . supra note 7. Davis & Harold D. 413 (Cal. 389. 10 custody. made of himself a witness. at 31 (emphasis in the original). 234 See BREEN. he became an unsworn witness to material facts without the [parties] having any opportunity to crossexamine. This model of the State as parent was rejected by conservatives and liberals alike in the 1970s. motives. The Ethics of Judicial Decision-Making Regarding the Custody of Minor Children: Looking at the “Best Interests of the Child” and the “Primary Caretaker” Standard as Utility Rules. Osslo. there now exists a wide-spread and acute suspicion of the very notion of doing good among widely divergent groups on all points of the political spectrum.

REV. and attempts to use and reflect that in a custody decision after divorce. second. third. 219–20 (1980) (explaining the debate that continues to surround the use of and duties of a guardian ad litem). the child’s need for continuity.240 Some argue that the approximation rule is flawed in that it fails to consider how to provide for protection and security of circumstances that surround each instance in which ‘best interests’ are to be determined. (setting forth approximation standard). see also M. the child’s sense of time. 216. 238 Elizabeth S. supra note 57. If defining standards are not provided.239 The American Law Institute adopted the approximation rule as a guideline for judicial discretion in discerning the best interests of a child in a custody dispute. The Proper Role of the Lawyer as Legal Representative of the Child.J. 80 CAL. 617 (1992) (proposing the approximation rule as a tangible way to apply the best interests standard).2008] BEST INTERESTS OF THE CHILD 117 The greatest concern with the best interests analysis lies with the judge who makes it. REV. supra note 63. 237 Mercer.”235 It is a well settled law that the BIC standard merely means that the welfare of the child is of paramount concern to the court and ought to be to the parents as well. Id. albeit to greater and lesser extents.J. If every judge were at liberty to determine what would be best for a child. then no case would have precedential value. Parental Preference.236 Solutions are being promulgated. Scott. The rise of the guardian ad litem (GAL) has offered hope for less judicial positivism regarding application of the BIC doctrine. Those that have written in the area of the best interests of the child have tended to focus on the above considerations.238 The approximation rule proposes to provide a means of measuring the proportion of time parents spend with their children in performing direct care-giving functions. 43 FAM. 236 Klaff. with Shelley A. REV. 18 ALBERTA L. 75 MINN. Gary Crippen. the risk of harm to the child. 235 . CT. at 357 (arguing that presumptions at least have standards upon which advocates and parents can rely in litigation). the test is simply a grant of broad discretion to trial judges to exercise their own views on what is best for children. and therefore thoroughly subjective. and finally. but this makes substantive decision-making very difficult for judges. first promulgated by Professor Elizabeth Scott. L. the opinion of the child and the members of its family. Id. 615. REV. L. 481–82 (2005) (critiquing the assumptions and implications of the approximation rule from the standpoint of attachment theory). depending on the factor under consideration.”237 Some family law scholars have offered new solutions for applying the BIC standard. “Separate representation would ensure that the child’s best interests were represented. Stumbling Beyond the Best Interests of the Child: Reexamining Child Custody Standard-Setting in the Wake of Minnesota’s Four Year Experiment with the Primary Caretaker Preference. 239 Compare id. and Child Custody. 481. the following core set of factors need to be considered: first. McHale. Such a system has obvious jurisprudential shortcomings. 427. Unless the state legislature or previous case law has afforded the judge some guidance in terms of key factors and elements to consider. at 30. 500 (1990). is one such concept. Pluralism. Judge Crippen is an active member of the Minnesota bar and judiciary. BIC is criticized because it “allows a level of judicial discretion that is difficult to reconcile with a historic commitment to the rule of law. Riggs. In general. Is the Approximation Rule in the Child’s Best Interests? A Critique from the Perspective of Attachment Theory. his or her decision making process is relatively unbridled. The approximation rule.

237. indicated their perceptions of parents’ and God’s nurturance and power and reported on discipline in the home. has inherent biases and uses various presumptions. LAW. A strong argument can be made that DeVries places quite an overwhelming burden on children. 19 J. Parent-Child Relationships and Children’s Images of God. Developing Beneficial Parenting Plan Models for Children Following Separation and Divorce. and often highlights judicial biases. supra note 125.243 This can be a key component to the healthy growth of a child. Despite differences between the two samples in race. Kelley. . at 214 (discussing judicial discretion in custody cases that present a religious freedom element). supra note 239.. certainly a part of a child’s best interests. Id. In childhood. at 214. which will often be extremely difficult to change on appeal. DeVries. The least experienced custody litigator knows that a so-called presumption-free and gender-neutral legal climate is at best wishful thinking and that the single most difficult task facing the lawyer is to identify. STUDY RELIGION 25. SCI. legal and political struggles over children will continue until American Christians advocate on behalf of children. Jane R. Dickie et al. however.241 The approximation rule would not do well to completely replace the BIC standard because of its pure quantitative measurement. and a faith base can offer positive elements to the legal landscape. when it may be. ACAD. Some of that bias is revealed in the fact that religion is one ingredient that is frequently silenced.244 240 But cf. Children need parents to advocate on their behalf. Kelley argues that adoption of this approximation rule is not an improvement on the BIC guidelines. and to resist what she calls the “instrumental valuation of childhood” that our culture currently adheres to. though contrary to dominant cultural theory now influencing family law.118 JOURNAL OF LAW & FAMILY STUDIES [Vol. 36 J. Id. 241 See generally Riggs. 242 Wilder. at 167. 241 (2005). . supra note 30. squelched or even denied in a custody award. 486–90 (arguing for more protection for children than the approximation theory can provide based on evidence provided by classic attachment processes research). at 172. Joan B. isolate and either exploit or overcome the unstated assumptions which pervade the decision-making process in every custody case.”242 Unbridled judicial discretion builds no good jurisprudence. 244 Cf. 25 (1997). . . When parents were perceived as nurturing and powerful (especially when mother was perceived as powerful and father was perceived as nurturing). DeVries argues that current cultural. Every judge. by virtue of his or her humanity. even if unconsciously.. A presumption-free environment is ultimately unrealistic. an important element of healthy childhood. Id. security and love to a child. 10 children who display classic attachment behavior from a quality attachment to a caregiver. “Every custody litigator knows that the judge is the most important witness in any custody case and strives hard to identify. remarkably consistent findings were demonstrated. to be our guides in this effort. to make an initial award of custody. and religious affiliations. at 167. “The time has come for theology to recover the resources in both Bible and tradition for a fully intrinsic valuation of childhood. when it is adults who need to act to protect children from that burden by providing for their best interests in safely reaching adulthood. AM. MATRIM. socioeconomic status.” Id. [C]hildren ages 4 through 11. 243 Cf. . it is parents who directly and indirectly impact God-images. children perceived God as both nurturing and powerful. it might assist judicial discretion as a guide in a custody decision. but if applied with additional evidence that shows which caregiver offers protection. understand and address the biases which the judge brings to the decisionmaking process.

g. conceive of ways to improve the lot of a particular child. at 733.C. at 1290–94. 264–68 (1995) (addressing the problem from the Roman Catholic tradition in placing responsibility for children on parents. 249 Id. Children and the Problem of Formation in American Families. see also Hafen supra note 99.249 Harvard Professor Mary Ann Glendon projected decades ago that our system of family law was moving from one of emphasizing the “unitary aspects of the family” to one that now emphasizes “the separateness and individuality of the persons who are associated in families and marriages. at 733.”248 and makes a case for marriage being essential to a child’s best interests. 248 Id. In fact. and our present responsibility in stewardship.245 Protection of children by parents is thereby diminished. Duncan proposes that we focus on the family unit by enforcing parental rights without jeopardizing the necessary protections granted to children. 251 See generally Todd David Whitmore. It remains a serious legal apprehension that the data shows a failure of child formation in families.”252 Responsibility for children lies with parents first. Id. which by its nature cannot love. at 273–74. THE TRANSFORMATION OF FAMILY LAW 102–03 (1989). 246 245 . parental rights.. See also Duncan.”250 These concerns have had serious negative implications for children and their welfare. e. because God has specially and uniquely equipped parents to raise their children so that any parent who possesses at least some love can care for his or her child better than the state. See Carbone. at 732–34. 15 ANN. at 733–35 (opposing Martha Fineman’s mother/child dyad promoted in her book THE NEUTERED MOTHER. 250 MARY ANN GLENDON. supra note 7. 247 Carbone. Harvard law professor Mary Ann Glendon serves now on the Council on Families in America. Justice Parker states his judicial view of this fact. See. supra note 93. and the father’s rights approach to “replace marriage with conception as the defining element of parenthood”). and judges later if parents abdicate their God-given roles. supra note 93. and the well being of children is naturally affected. 246 In reviewing Mary Ann Mason’s historical work on custody standards. at 732–37.. working to strengthen marriage as a social institution. at 1242. in individual cases. and presenting various studies supporting the assertion that parents are spending too little time with their children to form adequate relationships). holding firm to the best interest of the child standard. Id. at 1244. 252 Id.253 The ultimate goal of the best interests standard is Id. at 274. supra note 7. 253 In his dissent in Ex parte G. supra note 212. and deference to. Carbone. rather than children’s rights which work to the detriment of the family upon which the child’s best interests rely. SOC’Y CHRISTIAN ETHICS 263. a hope for the future. Professor June Carbone suggests that legislators and judges and the rest of society have struggled to settle on a set of operating norms for litigation regarding children. Duncan. the best interests of children are served by the state’s declining to interfere with family government merely because its agents can.2008] BEST INTERESTS OF THE CHILD 119 Other family law scholars argue that the family has lost integrity because marriage as a social institution is threatened. I believe the best interests of a child are served by strengthening the state’s acknowledgment of. Consequently.251 To respond to the needs of family formation in America the law and society must see that “children are gifts of creation. 247 She argues for these decisions to “take place within a framework set by assumptions about the kind of family life society should promote. Whitmore proffers that this thinking is already a part of the Catholic tradition and merely needs to be taught and implemented in developed detail. supra note 7.

C. Professor Lynn Wardle points out that “millions of divorced couples are able to overcome their own conflicts and work together to love and raise their children after divorce. CONCLUSION The application and use of the BIC doctrine over the course of American jurisprudential history is evident in its careful development over the growth of the nation’s laws. Though sparks of the BIC doctrine began in natural law and influenced the common law in England.” Ex parte G. . 10 to preserve parent-child relations. the doctrine has been developed and rooted in American family law jurisprudence for the past two hundred years. 685 (Ala. supra note 62.. 2005). The BIC doctrine has indeed dramatically influenced family law jurisprudence not only in America but globally as well. Jr. and that has had a dramatic effect on the family. it has been thoroughly sown into the fields of American family law jurisprudence through statutes as well. That is the current policy and goal of this area of law. but rather has illuminated the foundations of a doctrine rooted in parental protection and manifested in a legal standard regarding children to assist judicial decision-making for what is “best for a child. 924 So. 254 WARDLE & NOLAN. 2d 651. the standard is an American-grown concept. V.”254 The foundation of the best interests standard is critical to this discussion. This article still does not presume to know what the best interests of the child really are. Rather than being a recent legal phenomenon of the past few decades. It is an attempt to offer an opportunity for judicial reflection and a renewed vision for a future that truly seeks to uphold the best interests of a child.120 JOURNAL OF LAW & FAMILY STUDIES [Vol. May that sense of judicial responsibility be edified by the discussion undertaken by this article. Begun in case law and fostered in the soil of judicial responsibility. at 866.

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