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 “Seven of the 45 States have ‘best interests of the child’ standards that do not include any specific factors to be evaluated in




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 _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

words and actions. but the parents for the children.”). ruling their children and their own houses well. Psalms 34:11 (“Come. but teach them thy sons.”).”).”).”). and thy sons’ sons. whether his work be pure. especially girls. Ecclesiastes 12:1 (“Remember now thy Creator in the days of thy youth. Isaiah 66:13 (“As a mother comforts her child. and let your children tell their children. Proverbs 23:13 (“Withhold not correction from the child: for if thou beatest him with the rod. CARROLL.”). Proverbs 10:1 (“A wise son maketh a glad father: but a foolish son is the heaviness of his mother. . .”). Ephesians 6:4 (“And. ye children. .”). but the rod of correction shall drive it far from him.”). Matthew 18:6 (decrying those who cause harm to a child). and the heart of the children to their fathers.”). Psalms 78:4–6 (commanding parents to pass on their faith to following generations). 20 CARROLL. 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. there are at least five scripture references that discuss the importance of the care and protection of children.”).”). . and despise not thy mother when she is old”).”). and their children another generation. CHILDREN IN THE BIBLE 122 (2001) (citations omitted).21 There are at least five scriptures that directly discuss shaping the behavior of JOHN T. Malachi 4:6 (“And he shall turn the heart of the fathers to the children. Psalms 8:2 (“Out of the mouth of babes and sucklings hast thou ordained strength because of thine enemies. Proverbs 23:22 (“Hearken unto thy father that begat thee.”). Jewish and Christian writers vigorously opposed these practices.”). provoke not your children to anger. hearken unto me: I will teach you the fear of the LORD. Joel 1:3 (“Tell ye your children of it. . 18 Deuteronomy 4:9 (“. . Proverbs 29:15 (“a child left to himself bringeth his mother to shame. Mark 9:37 (“Whoever welcomes a little child in my name welcomes me. 18 and at least three references that liken childlike qualities to godly qualities. therefore. supra note 16.19 With the emergence of Jesus Christ’s life.”). Deuteronomy 6:7 (“And thou shalt teach [the commandments] diligently unto thy children”). 17 16 .”). Isaiah 11:6 (“[A]nd a little child will lead them”). that you and your children may live.”). that thou mightest still the enemy and the avenger. Proverbs 20:11 (“Even a child is known by his doings.”). at 121. 21 Matthew 7:11 (“[K]now how to give good gifts unto your children. Colossians 3:21 (“Fathers.”).”16 That opposition attitude is clearly evident in how children are characterized in the biblical record. he will not depart from it. Deuteronomy 30:19 (“[C]hoose life. ye fathers. Isaiah 54:13 (describing protection of descendants). he shall not die. Christian scripture pronounced even more clearly the value of children in the face of cultural opposition of that time to such an idea. Proverbs 22:6 (“Train up a child in the way he should go: and when he is old. Proverbs 22:15 (“Foolishness is bound in the heart of a child. that Jesus offers the child as paradigm for participation in God’s world. so I will comfort you.”). 1 Timothy 3:12 (“Let the deacons be the husbands of one wife.”). there are at least nine references that discuss the importance of the care and protection of children. lest they be discouraged.”20 In the New Testament. In the Old Testament. 19 Among them are Deuteronomy 14:1 (“Ye are the children of the Lord.17 There are at least thirteen scriptures which directly discuss exhortations to children or to parents to shape the behavior of children. .”). Deuteronomy 11:19 (“And ye shall teach [God’s words to] your children.”). . and the subsequent publication of the New Testament. It is all the more stunning.2008] BEST INTERESTS OF THE CHILD 85 exposing of young children.”). all the words of this law. provoke not your children to wrath: but bring them up in the nurture and admonition of the LORD. 1 Timothy 5:10 (“Well reported of for good works. 2 Corinthians 12:14 (“[F]or the children ought not to lay up for the parents. and whether it be right. if she have brought up children. “Children have low social status and are virtually powerless. Deuteronomy 32:46 (“[Y]e shall command your children to observe to do.

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

PHILIPPE ARIÈS. An essential concept had won acceptance: that of the innocence of childhood. Toward a Theology of Childhood. whoever does not receive the kingdom of God like a child shall not enter it.”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. he belonged to adult society. 38 Id. a reflection of the universal moral law. Dawn DeVries. as soon as the child could live without the constant solicitude of his mother. 36 Id. 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. and by the end of the seventeenth century “a new concept of childhood had appeared. supra note 16. 37 ARIÈS. 35 Theology and its reforms produced and shaped legal transformations. Mark 10:14–15 (Rev. . the idea of childhood was lacking in medieval society.29 At a time when societies viewed children primarily as products. 35 Id.claremont.”38 This apparently universal moral law combined with the 29 30 CARROLL. 34 This trio offers a good deal to an historical analysis of family law development.. and an expression of the historical traditions of a people. despite the influence of Christianity. causing a “great change in manners [to] take place in the course of the seventeenth century. from which derives the basic topics of our contemporary law school curriculum. Yet. Standard). the discourses of Jesus Christ regarding children provide a striking contrast to such modern theories. The Protestant Reformation entailed the reform of law with Philip Melanchton’s method of analysis.36 These religious reforms affected the culture and the law. consumers. at 127.2008] BEST INTERESTS OF THE CHILD 87 children” in a way that departs radically from this larger cultural and biblical pattern. 162–64 (April 2001). supra note 32. Truly I say to you.html (discussing HAROLD BERMAN. 33 Id. 55 INTERPRETATION 161. his nanny or his cradle rocker. There was no conscious awareness of the particular nature of a child which distinguishes him or her from an adult. 32 31 . and burdens. and Calvinist covenant theology had a transforming effect on reform of private life. The Christian Origins of the Law (Feb. 13.”31 The influence of Christianity on the treatment of children was “It was Berman’s contribution to identify the context of these beginnings within the corresponding train of historical developments in Western Christendom. CENTURIES OF CHILDHOOD: A SOCIAL HISTORY OF FAMILY LIFE 128 (1962). constitutional law and family law among them. . http://www. at 110. 34 Peter Judson Richards.” Id. do not hinder them. 2006).32 “That is why.”33 This attitude permeated the law surrounding families. LAW AND REVOLUTION (1983)). at 129. . The Claremont Inst. for to such belongs the kingdom of God.30 “Let the children come to me. Calvinist-inspired reforms became the basis for the historical common law tradition.

.g.49 yet corrupted by society. 41 Id.41 The New Testament image of children seen as needing protection and love. . requiring education and constraints of society to tame their sinful behavior. Matthew 18:5.47 Children needed education.”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.”39 Another Christian view presented the child as lacking in maturity. inheriting sinfulness of man.. CHILDREN: RIGHTS AND CHILDHOOD 38 (1995)). .43 all added up to an authentic socio-legal concern for the development of each individual child. THE STANDARD OF THE BEST INTERESTS OF THE CHILD: A WESTERN TRADITION IN INTERNATIONAL AND COMPARATIVE LAW 35 (2002). 14 (NIV) (“And whoever welcomes a little child like this in my name welcomes me. and with the strident figure of Rousseau at 39 CLAIRE BREEN.”). at 36. where wisdom could be learned in the process of growing to maturity.44 Philosophers like John Locke viewed children as having natural rights that need to be protected. at 38.50 “God makes all things good. 51 Id.”). 40 Id. ÉMILE 5 (B. e. in his school of thought.g.. (citing JEAN JACQUES ROUSSEAU. In the eighteenth century. often including “Christian elements based upon the continuing belief that the child was essentially corrupt.88 JOURNAL OF LAW & FAMILY STUDIES [Vol. . 49 Id. M. neither good nor bad. 48 Id. becoming to some extent a part of the tradition of the time. at 37.”46 Locke regarded the child as a blank slate. 47 Id. 43 See. e. at 36 (citing D. 42 See.45 “He believed that children were not their parents’ property but God’s property. 44 BREEN. though. 40 Yet another Christian tradition of Puritanism “perceived children as essentially prone to a badness that” required discipline and correction. J. 10 positive commands of the Law Giver gave jurists a more illumined perspective of children when they became involved in the law.42 combined with the Old Testament view of the child as needing wisdom and guidance.48 Jean Jacque Rousseau held to the concept of the child as pure. at 36–37. at 36. at 69. Dent 1963)). 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. Foxley trans. man meddles with them and they become evil. there were still contrasting and conflicting views of religious perspectives on children and their place in society. ARCHARD. Children were seen as being born with Original Sin. .. . In the same way your Father in heaven is not willing that any of these little ones should be lost. 45 JOHN LOCKE. to provide for the “best” way to produce “rational” adults out of immature children. TWO TREATISES OF GOVERNMENT 330 (1960) (citing specifically THE SECOND TREATISE ¶ 67). at 37. 50 Id. supra note 39. supra note 39. 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. 46 BREEN.

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

61 Id. See Eric A. 60 BREEN. 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. 70 CAL. 335. The Tender Years Doctrine: A Defense. British courts completely shifted their custody supposition to presume “that it was in the best interests of a child. England was not the great actor in the rise 14 (Winter 1998). L. at least a child of tender years. with such a child being representative of the future.58 This jurisprudence was likely influenced by utilitarianism in Europe. LEGAL RTS.”64 The language of ‘the best interest of the child’ was more or less a façade for the presumption of the time. at 122. John Stuart Mill viewed paternal power as that which could only be rightfully exercised “to prevent harm to others. which spread to the establishment of the colonies.”59 The Enlightenment and the Romantics had a strong influence on the law of families. allowing more maternal custodial powers when appropriate via the Custody of Children Act of 1839. Sex Education in the Public Schools and the Accommodation of Familial Rights. REV. 59 JOHN STUART MILL. at 40. recognizing the state as parent at times when the King’s Bench was called upon to intervene in family matters. J. 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. A CRITICAL INTRODUCTION TO LAW 92 (1995)). the philanthropists viewed children as being unformed enough to be saveable. 58 Mercer. More accurately. 62 LYNN D. 63 Kelly. This was the origin of the ‘tender years’ presumption. .” 62 Thus. Like the child of the Romantics. DeGroff.61 Patriarchal rules prevailed in courts of equity in England in their parens patriae role “to protect the ‘best interests of the 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). FUNDAMENTAL PRINCIPLES OF FAMILY LAW 858 (2002).60 These attitudes of concern for children were integrated with views on marriage. ON LIBERTY 68 (1910). .”). 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. 21 (2006) (arguing that children are under the protection of parents). During the nineteenth century England departed from the paternal preference. MANSELL. NOLAN. the “best interests of the child” doctrine essentially sprang out of paternal authority. see also Ramsay Laing Klaff. Not all scholars agree that children were mere property to their parents under the common law.90 JOURNAL OF LAW & FAMILY STUDIES [Vol. to be in the custody of its mother. supra note 39. at 20 (citing W. 26 CHILD. 10 century in England transformed the patria potestas jurisprudence toward a parens patriae doctrine. the British law that brought the Tender Years doctrine to common law tradition. . these English laws were apparently based in parental and gender equality. supra note 57. at 14–15. 21. WARDLE & LAURENCE C.’. By this time. supra note 15.63 Rather than being established in the best interests of the child concept.

Id. who were no longer legally akin to servants. it was nevertheless relentless. concern for the best interests of children was most apparent in the development of adoption law in America. 67 Mercer. RITES OF PASSAGE 18 (1977)). from the relationship of dependency which existed between the biological parents and their offspring. at 148. The colonial view of children as helping hands in a labor-scarce economy gave way to a romantic. The best interests standard was the American WARDLE & NOLAN. they were apprentices thereafter. 68 MASON. it is more likely that an American influence in the English jurisprudence allowed the western development of the BIC standard. under the complete control of their fathers or masters. at 858– 59. and thus. KETT.” Id. Most youth were incorporated fully into the work force by age fifteen. at 44. Parents farmed their children out between the ages of seven and fourteen. Professors Wardle and Nolan explain the variations of the presumption. and the fact that most mothers personally assumed custody of their children without a contest. 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. at 45. but instead were deemed to have interests of their own. 64 .2008] BEST INTERESTS OF THE CHILD 91 of the Best Interest of the Child standard. Id.”65 The common law was brought to America with the colonists and continued to be the basis of American law. supra note 57. Rather. emotional view of children. 66 Id. the culturally reinforced idea that mothers should get custody of young children.”67 The legal and social status of the child was transformed during the first century of the new republic. Children were regarded primarily as revenue-generating property during the infancy of the United States.68 More particularly. the state with its welfare and utilitarian concerns. (citing JOSEPH F. “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. supra note 6. at 50. Natural law arguments in favor of parental authority and parents’ rights prevailed during the founding period of the new world. supra note 39.”66 Children were still part of the American family economy. important to the economy of a growing nation. and the father. supra note 62. 65 BREEN. “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. The stakeholders at this point were the child as an emerging adult. at 15. “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. “The standard of the best interests of the child may generally be described as a principle deriving from Anglo-American family law. While the transformation came slowly in contrast to the fast pace of political events or economic development. “Admittedly.”69 This provided a formidable wave of jurisprudence regarding children. in particular.

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

Who Determines Children’s Best Interests?. a fresh jurisprudence regarding children developed in the West. with a presumption in favor of mothers as the more nurturing parent. MASON. such a being must be kept under an authority more immediate than that of the laws. at 122. at xiii. & Co. at 42 (citing CUNNINGHAM. 17 LAW & HIST. supra note 57. supra note 6. 309.77 Out of this utilitarian jurisprudence that transformed much of England’s law on children.76 Utilitarianism had a continued influence in British family law. see also Mercer. combined with a natural law foundation and the American development of and emphasis on a best interests approach. as well as those children suffering from the effects of the Kelly. VOL. 77 1 JEREMY BENTHAM. Everything must be done for an imperfect being. Hildreth trans. Michael Grossberg.78 This has led many family law scholars to view the BIC standard as a nineteenth century tradition.”). supra note 39. 1840). at xiii. Weeks. and in 1840 Jeremy Bentham sought to organize the country’s laws to place the general good above that of the individual. This influenced the law regarding children. I. 78 Mercer. supra note 39. which meant that children needed state protection. it has already strength and passions. at 50. a duality existed between the growing state intervention and the laissez-faire approach to private family maintenance. supra note 6.with recognition to be accorded to the special needs and characteristics of the child. . and should. . supra note 39. See generally BREEN. 79 See BREEN. Thus. without experience enough to regulate them. 76 75 . supra note 57. which as yet does nothing for itself.79 Throughout the nineteenth and into the twentieth century reformers and philanthropists became “deeply imbued with the Romantic belief that childhood should be happy…. 312 (Summer 1999). 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. . supra note 52. . The complete development of its physical powers takes many years. supra note 15.”80 Concern for child welfare in the late 1800s included illegitimate children.. at 160). . The changing status of women… was a critical factor in this transformation. 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. that of its intellectual faculties is still slower. MASON. MASON. At a certain age. 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. 248 (R. too negligent of the future. after the end of the colonial period. The feebleness of infancy demands a continual protection. THEORY OF LEGISLATION. 80 BREEN. Too sensitive to present impulses. Jordan. from 1790 to 1890. supra note 6. He argued for reforms based on the common good. intervene to promote the development of good citizens.” 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. by 1850. In the first hundred years of the new republic. REV. at 43.2008] BEST INTERESTS OF THE CHILD 93 youngest of children75 and largely viewed as a product of natural law. at 19.

”85 Others. and children were assigned an emotional value.84 Scholars in this area of child law generally claim that the basis for juvenile justice is grounded in the BIC standard. 34–42. at 47. supra note 39. from arrest to disposition. It is this child which has provided the norm by which the standard of the best interests of the child has been measured.05. essentially rested on the tradition of best interests standard. eds. COMMENTARIES ON THE LAWS OF ENGLAND). Id.x. To What Extent is the Application of Family Law in the Best Interests of Children? (May 22. rather than circumscribing the best interests of the child.86 Twentieth century jurists continued the development of the doctrine in case law across the nation.. The BIC standard began to spread internationally during the twentieth century. Juvenile Corrections Facilities: Is There Any Room for the Isolation Room. The juvenile justice criminal system in America. Bird. at least for a growing class of parents. “Everything done during the course of a juvenile court proceeding. is ostensibly being done with the best interests of the child in mind. enhanced by the romanticization of their mothers. 2006). It is this state that the best interests standard seeks to attain for the ‘Other’ child.26 (citing WILLIAM BLACKSTONE.”82 Over the eighteenth and nineteenth centuries the best interests of the child became a part of not only American family law jurisprudence. consequently. at 206. at 20. the corrupt child.. BREEN. 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. the law presumed that children fourteen years old or older had the same criminal capacity as adults and. The Romantic child already exists in a state of nirvana. at 43. disagree that there is ever a good application of the best interests standard in the juvenile justice system. 84 83 . see also BREEN. 85 John R.html. however. supra note 6. 10 industrial revolution. TRENDS. in LEGAL ADVOCACY FOR CHILDREN AND YOUTH: REFORM. Id. Yale-New Haven Teachers Inst. available at http://www. 86 Luis Recalde.81 “The ‘best interests of the child’ slowly developed as a legal concern in the new republic. The ideal of the innocent Romantic child has continued to represent and define our perceptions of the child over the last two centuries. when. n. 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 ulum/units/1994/1/94. child labor needs were less urgent. were always liable for their criminal offenses. However. at 30. 176 (Howard Davidson & Robert Horowitz. Finally. but juvenile justice jurisprudence as well. which has been the true object of the best interests standard. AND CONTEMPORARY ISSUES 175. supra note 39.01.yale. Id. “The rights of the child were first brought together in one internationally 81 82 MASON. and is applied to the extent that the child is not transferred to adult criminal courts.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. Id.94 JOURNAL OF LAW & FAMILY STUDIES [Vol. although the innocent child may provide the measurement of best interests. it is the ‘Other’. 1986). increasingly entrenching the BIC concept as a permanent fixture in family law.

THE RIGHTS OF THE CHILD AND THE CHANGING IMAGE OF CHILDHOOD 444 (Martinus Nijhoff Publishers. BREEN.” Id. although paternalistic in nature.87 These BIC traditions originated in western law. a tradition which. INT’L. In . 193. showing somewhat of a tolerance for practices prejudicial to the health of children. Id. but also an impact on the legal evolution of the jurisprudence generally surrounding matters regarding the disposition and future of children. at 77 (citing Declaration of the Rights of the Child.”). supra note 39. 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.91 A tension developed between notions of protectionism and autonomy in regards to children’s rights. fostering. Breen notes the undercurrent of cultural relativism that flows through the Convention on the Rights of the Child. 91 See BREEN. at 16. but were universally promulgated through the United Nations Convention on the Rights of the Child. 197 (1994)).88 This was the triumph of a uniquely American concept adopted by a global community of persons concerned for children’s welfare. 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). Id. 24 CAL. 1992)) (“The view that children were the (now valuable) property of their parents remained well into the nineteenth century. VEERMAN. as reprinted in.’ the latter being a non-governmental body based in Geneva. supra note 39. supra note 39. and the guardianship of minors. The rights based approach has attempted to determine the appropriateness of according rights to children whereby varying degrees of autonomy are granted to children.”89 Indeed. Levesque. was based upon a greater degree of interventionism into family life. This latter tradition concerning the rights of parents ultimately gave way to the standard of the best interests of the child. the BIC standard has become critical in evaluating custody decisions in repatriation cases. International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic Policy. As the tradition of paternal supremacy waned. supra note 6. J. W. 92 MASON. SAVE THE CHILDREN ITALY. at 19 (citing Article 20(3) and 24(3) of the Convention). children’s rights grew and 87 BREEN. at 67.J. 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.” 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. 90 ELENA ROZZI. 89 Id. clearly a clash of legal ideals and social traditions. at 43 (citing R. 90 The doctrine has had a global impact. at 25 (adding the enshrining of the family in the Irish Constitution as in conflict with the best interests standard). P. at 148. at 16. Failure to uphold the best interests standard is vividly displayed by the practice of female genital mutilation in many African nations. supra note 39. 88 BREEN. “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. “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. adoption.E. creating a new area of law—that of children’s rights. L. Id.92 From the BIC doctrine.2008] BEST INTERESTS OF THE CHILD 95 recognized text in 1924.R.

23 Tenn. at 1244. State v.”93 Many believe this is the wrong direction if society is genuinely concerned about children’s best interests. 1979) (arguing that the state is manifestly inadequate to protect children and affording children rights does not solve that problem). Children’s Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to Their Rights. 99 See Bruce C. Hafen & Jonathan O. Duncan. at 5–11. BEYOND THE BEST contrast to the rights-based approach. even Professor Guggenheim. supra note 1. creating an extreme chasm between children and their parents by presenting these rights in direct conflict with one another. 1240. 98 GUGGENHEIM. supra note 6. but instead sought to probe tangled fact situations to discover the best interests of an individual child. 656. e. Jr. Id. Hafen. supra note 1. possibly joining the best interests bandwagon). Id. Brody eds. CHILDREN’S RIGHTS: CONTEMPORARY PERSPECTIVES 40 (Patricia A. 94 See.g. 523 (1843). 97 MASON. A landmark book built on the development of BIC jurisprudence written by a lawyer. And yet. Payne. “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.98 and this has become a core point in the scholarship against children’s rights. As deeply as I’ve always thought of myself as a children’s advocate. The Ultimate Best Interest of the Child Enures from Parental Reinforcement: The Journey to Family Integrity.” which offered practical rather than legally correct results. 93 . REV. 1976 BYU L. who self-identifies as a child advocate is quite validly concerned over the falsity and manipulation of children’s rights. 95 Duncan. much of what I read and hear being advocated in furtherance of children’s rights seems to me misguided. “As courts and legislators have created newly recognized rights of children. Vardin & Ilene N.. an example of which has already been seen in the academic debate surrounding the standard of the best interests of the child.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. ROBERT A. Indeed. BURT. John C. Bruce C. a social scientist researcher and a child psychologist.99 Social science has simultaneously gained respect and credibility in the legal determinations surrounding children and families in mid twentieth century family law. 1244 (2005). I continue to identify myself as a children’s advocate while rejecting much of what falls under the rubric of children’s rights. L. 1995) (arguing that child autonomy claims are most often for the benefit of adults rather than children). REV.96 JOURNAL OF LAW & FAMILY STUDIES [Vol. 55 FIRST THINGS 18 (Aug/Sept..”95 Out of this forged autonomy rose the children’s rights movement of the 1960s. the welfare argument has called for a protectionist approach towards children.96 From this movement rose the more subtle and insipid rampage of judicial discretion. and out of that jurisprudence arose ardent support for children to be vested with rights of their own. 10 developed. 605. at 59–60 (citing for an example of the loose judicial discretion. where the judge departed from established precedent in that state and used his own judicial discretion in determining the custody outcome. they almost invariable have done so in the best interests of the child. Abandoning Children to Their Rights. at x. 83 NEB. Hafen.. of being deemed capable to undertand his or her own rights. supra note 93. 96 GUGGENHEIM.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.

BEYOND THE BEST INTERESTS OF THE CHILD 3–8 (Free Press 1974). at 18–20. It revolutionized child custody. The Kindness of Strangers.103 and seemed to build an attitude in the law that completely focused on children.2d 124. 109 Id. made of himself a witness. at 22. 101 100 . IN THE BEST INTERESTS OF THE CHILD.108 Gaining a distinctly American flavor. THE RIGHT OF THE INHABITANTS OF MARYLAND TO THE BENEFIT OF THE ENGLISH LAWS (1728) in ST. suggesting a positivist path to broad judicial discretion where courts deemed the law to be what they said it was. 103 See Richard Crouch. 1478 (1988) (reviewing IN THE BEST INTERESTS OF THE CHILD).104 and attempted to swing back the pendulum toward a more balanced approach to parents and their children.” 109 This legal transformation is often scorned as a “two-edged sword” that judges used to mold legal doctrine and policy. L. Patricia M. the Law of Reason and the revealed Law of God” essentially to a customary usage of natural law principles. to offer countervailing evidence or to know upon what evidence the decision would be made. departing from JOSEPH GOLDSTEIN ET AL. SUOISSANT. 107 Id. 33 A. at 1480–81.106 The colonial revolutionary generation was influenced by their commitment to common law doctrines that conformed “the Law of Nature. supra note 101. which also had an impact on family law.100 sought to question the BIC standard with new promulgations of the psychological parent. Szentes. 97 YALE L. 126 (Conn. G. Wald. 13 FAM. IN THE BEST INTERESTS OF THE CHILD 3–9 (Free Press 1986). at 5–8 (quoting Daniel Dulany. J. he became an unsworn witness to material facts without the [parties] having any opportunity to cross-examine.. 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.107 Post-revolutionary American jurisprudence demonstrated a legitimacy of statutes by individual sovereign states coexisting with common law principles. The volume had a strong impact on judges and lawyers alike. 1943). 108 HOROWITZ. 49 (1979) (providing a collection of conflicting responses to the first book). These authors followed up their work with another similar work. In effect the trial judge. seemingly to the disregard of parents and the protection they naturally confer upon children. supra note 54. An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child.. 104 JOSEPH GOLDSTEIN ET AL. at 1477. 102 the book brought social science and expert testimony powerfully into the judicial decision-making process. as a basis for [his]findings. 105 Wald.101 Referring more to psychoanalytic theory regardless of the substantive laws or rules which governed custody. 106 Kovacs v. THE ENGLISH STATUTES IN MARYLAND 82 (1903)). and in making [these findings] availed himself of his personal knowledge. 102 Id.2008] BEST INTERESTS OF THE CHILD 97 INTERESTS OF THE CHILD. 1477. Q.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.

112 (1763) 97 Eng. 914 (K. Basing that realignment on judicial discretion developed a strong legal doctrine in the best interests of the child.111 Among the rules questioned was that of absolute paternal authority. which was taken to task by considering concerns for the child.114 a case most accurately described as a probate matter. 115 Id.115 110 111 Id. Roberts. Mansfield allowed the child to remain with its mother based on the public’s concern for the education of the child. The facts are clearly stated in the record.110 All of this occurred in the context of developing judicial and statutory state law. 113 (1774) 98 Eng. See infra notes 112–114. Rep.113 Fifteen years later another court of the King’s Bench was concerned for a child’s best interests.B. 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. 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. In Rex v. Rep. the BIC standard was often presumed and given very loose statutory guidance. . Mr. Cleaver. Lord Mansfield was a pivotal actor clearing this path among the King’s Bench. thus doing what was best for the child.). 899 (K. at 276. 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. at least loosely. but wisely employed in the development of the BIC standard. 10 English judgments. Eventually codified. England’s court documents record several cases dealing with matters that brought into question the legal rules regarding children and their worth and value. during Mr.B. Powel’s life. 913. Powel. but adhering. based in revelation and universal moral concepts integrated into American family law jurisprudence. An absent father had allowed the testator to care for and support his son until the death of the testator. 274 (Ch. “according to the circumstances that shall appear before them. 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 1789 in Powel v. permitted the children to be brought up by. the father. That law needed to be at least trifled with. The case history that follows reveals that judicial discretion was not unbridled.”112 In competing custody claims in Blisset’s Case in 1774. but any decision regarding custody was left to the discretion of the judges. the court reviewed guardianship of a child and his inheritance. to natural law principles embedded in the common law. revelation to some extent for the welfare of a child. Devall in 1763. if not realigned with.98 JOURNAL OF LAW & FAMILY STUDIES [Vol.). at 23–27. 114 (1789) 29 Eng. III. 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 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. it appeared in Powel that the best interests of the child heir prevailed over any parental authority.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. that the Court will not only control a father in the management and the possession of his child. Power’s executors. on the condition. unless it shall be the Court’s opinion. the testator. however. 119 Id.”119 Thus.117 With much discussion of satisfaction of legacy and other probate terms. Powel. the provision for his support.120 Because Powel occurred outside a custody context. but altogether remove the child from his influence if he is a depraved person. to the foundations of that legal standard nonetheless. supra note 4. 117 Id. 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. Mr. or his social status. they were quickly doused in 1804 by blanket judicial reinforcement of the paternal preference. as it assisted the decline of the unfettered absolute rights of parents. Roberts shall be in the hands of Mr. the court ruled strictly in terms of a finding that would not bring detriment to the child. under circumstances. expressly. Roberts has himself taken benefit under the will of Mr. 120 The court’s powers to change guardianship for parental unfitness were also clearly stated. Id. to care for and raise his son. . Powel’s death. 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. to consider whether a parent can insist upon his full right of guardianship. Furthermore. it is not generally considered when discussing the foundations of the best interests of the child as a legal standard.. 121 GROSSBERG.121 If Devall. . Id. that the authority of a parent as guardian to his children cannot be transferred except by abuse of the authority. Blisset’s and Powel were sparks for British courts to use a new standard of welfare for children. Roberts. 10 Ves. at 283. It has merit. 63. at 277. Powel. Such being the case. 64). that the guardianship of the three sons of Mr. Roberts by suffering him to resist Mr. The father. that Mr. at 276 (citing Lord Eldon. The will expressly directs. such legacy may be forfeited. Mr. It is material. . C. 116 Id. Powel’s disposition of the guardianship.” 116 In determining the outcome. regardless of the child’s interests Since Mr.” Id. “It is quite settled. where by so insisting on that right against the condition of a legacy to them. 118 Id. had willingly allowed Mr. at 540.118 The Chancellor noted that “he would not allow the colour of parental authority to work the ruin of his child. at 237. The maintenance to the eldest son is given. and further distinctions made in this case from that of parent and child. Roberts permits the guardianship to be with the executors. I do not see how the Court can gratify Mr.

at 249. (4 Des. “Subsequent English cases ignored the best interests principle altogether and confined the ruling in Blisset’s Case to its facts. that the custody of a child. 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. 762 (Ch. html. Wright. there is a tribunal wherein the error can be redressed. De Manneville: Rethinking the Birth of Custody Law under Patriarchy. 10 or needs. rationalizing that the responsibility of enforcing the common law was to be passed on to higher courts than itself. Prather. the best interests language was used as a façade for coverture. but the court was clearly disturbed that the father’s actions were not those that warranted a court 122 (1804) 32 Eng. 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.). . Desau.” Joanne Ross Wilder. 125 “The court at no time considered the interests of the child.) 33 (1809). at 247–49. Asserting that the maternal presumption took hold in the jurisprudence by the end of the nineteenth century. as a matter of law. 762. 212 (2002). but feels a consolation in the reflection that if it errs.hitory. paid lip service to a “best interests of the child” doctrine in the early nineteenth century. & HIST. the court had no problem removing the child from the mother’s care and giving custody to the father. L. “The law is clear. 18 J. Rep. De Manneville. The best interests test was not codified until 1925 as the principal criterion for making custodial awards. the law promoted the maintenance of strong patriarchal hierarchies in many nineteenth-century marriages.” Id.). supra note 63. Id. however. at 44.” Klaff. De Manneville v. Id.2/wright. De Manneville. 211.122 Despite the fact that it might be best for a nursing infant child of eleven months to remain with his mother. 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.” Id. at 248–49. available at http://www. the difficulty of reconciling paternal and maternal rights prevented significant reform for many years. as parens patriae. in the historic case of De Manneville v. 4 S. 123 (1804) 32 Eng.cooperative. At the same but that was merely an appearance. 126 Prather v.124 Any trend set out in Powel was negligible in De Manneville. Coverture is the concept that “mother and children were under cover of the husband/father. at 338. Eq.127 That court’s opinion did not use language setting forth the child’s best interests as the legal standard for its decision. 124 Id. AM. In 1809. Rep. the court was incensed by the injustice of the paternal rule as applied to these facts.”123 De Manneville clarified and emphasized that a British court cannot interfere with a father’s right to his child.).B. belongs to the father. REV. and he reigned supreme.” Id. An extremely thorough examination of the De Manneville case is contained in Danaya C. At most. (1804) 102 Eng. 1054 (K. Religion and Best Interests in Custody Cases.126 Though fearful of defying the authority of the common law. 17 L. 764 (Ch. if he chooses. by resisting the adoption of a best interests standard. supra note 124. divorce. See also King v. 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. or forfeiture. ACAD.” Wright. It seemed that courts in England were using common law rules to foster a best interests standard. Across the Atlantic Ocean. 127 Id.125 and certainly did not pertain to a custody dispute between mother and father. Although the courts. which included a version of the “tender years” doctrine.100 JOURNAL OF LAW & FAMILY STUDIES [Vol. MATRIM.C. Rep. 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. with whom he lived in open adultery. 247 (2006). of whatever age. “[T]he Court is apprised that it is treading on new and dangerous grounds. at 259. at 250. the jurisprudence was forming much differently.

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

at 340–41 (arguing that the two doctrines. Even with this caution. “a view which was theoretically.” Id. the court clearly believed that particularly the eldest child was of a critical age to learn morality. tender years and best interests. they may not reflect on the subject. The court had used the most ardent common law rule of paternal preference and pitted it against the developing doctrine of tender years. that in good fortune or in bad. but the latter offers much more discretionary latitude. 138 Id. Id. when we decide for one. therefore. were first introduced in Addicks). the court made it absolutely clear that part of that which was best for the children was that the siblings not be separated. regardless of the tender years doctrine). as far as our opinions can teach them. It is the more incumbent on us. to ultimately determine what would work to the greatest welfare of 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. if not in actual practice. 140 Wilder. by inspiring them with fixed principles on this essential article.141 obligation of the marriage contract. but they soon will’ and when they inquire.”140 Indeed.”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. that the children should be delivered to their father. the best interests of the child doctrine was misleadingly cast [in Addicks]. and the education of the next three years will probably be decisive of her fate. the tender years presumption is encased in the best interests standard. combining such an analysis with its own discretion. and many others which it is unnecessary to mention. (finding paternal custody in best interests of the child when the mother had committed a prior bad act.138 In step with the concept of determining what was best for the children.” Id. supra note 63. 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. at 212. unless dissolved by the law of the country. 10 in the face of a change of custody to the father for the girls’ “future welfare. 349–53 (demonstrating through case history analysis that the tender years presumption is generally overcome with a showing of the mother’s unfitness. “[I]t is important that the sisters should not be separated. Id. child-focused. at 342. I am of opinion. to guard the children against the consequences of this pernicious mistake. 141 Klaff. more 136 135 . Id. For these reasons.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. at 213. … Although the mother claimed that the father was abusive. we must decide for both.”136 Addicks appears to be the first use of the best interests of the child as a legal standard. 139 Id. the court ended its inquiry with the mother’s adultery. Id. is sacred and inviolable.102 JOURNAL OF LAW & FAMILY STUDIES [Vol. they will be taught. therefore. in sickness or in health. in that “every moment is important. Wilder argues that a mother’s adultery was the kiss of death to any authentic best interests analysis. particularly in adultery. supra note 125. why it was that they were separated from their mother. 137 See generally id. the marriage contract. and to fortify their minds. taking into account an easier transition for the children. supra note 63. in happiness or in misery. “Even at its genesis. At the present moment. Arguing that the tender years doctrine presented a maternal preference that could be easily overcome by the mother’s unfitness.” Id.

). As to the question of the right of the father to have the custody of his infant child. to administer a conscientious. and it be of too tender years to choose for itself. at 31–32. 147 Id. at 32.”146 Parents’ rights to protect children were inalienable. parental duty with reference to its welfare. The court here used its discretion in applying the common law rules alone. the court is asked to lend its aid to put the infant into the custody of the father. 142 (1824) 9 Moore 278. De Manneville ruled the day. 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.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.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. as far as possible. it will look into all the circumstances. and endeavour. 148 Id. Id. 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. 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. it will also consult its personal wishes. Green.144 There was no discussion of how the child’s welfare might be affected by the adulterous convict father’s rights. and to withdraw him from other persons. Clearly. continued to hold strictly to the paternal preference rule again in 1824.148 The court proclaimed that its own discretion was the basis for proper application of particularly her adultery). but not absolute when circumstances endangered the child. 143 Id. the Court of King’s Bench has a discretionary power to assign the custody of the child to a third person. therefore.C. at 282. It will free it from all undue restraint. But this is not on account of any absolute right of the father.B. however. but for the benefit of the infant. 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. and one opposing opinion: Independently of these authorities. Id. 143 the court’s ruling relied heavily on De Manneville and completely adhered to common law principles of paternal parental rights. the court saw an obligation to look at all the facts at issue in determining the proper application of that right. 146 Id. the law presuming it to be for its interests to be under the nurture and care of his natural protector. 144 Id. 145 2 D. The court cited several other cases in agreement. . Blisset’s case is decision to shew. When. that if the father appear to be an improper person to have the custody of his child. at 31. permanent interests of the infant and if the infant be of sufficient discretion. and ascertain whether it will be for the real. (2 Cranch) 520 (1824). both for maintenance and education. at 279–80. Simultaneously.145 Upon the motion of the father asserting his paternal rights by law. no trend towards a new legal standard for children was established by Powel or any other case in Great Britain’s courts.2008] BEST INTERESTS OF THE CHILD 103 English courts. 278 (K. in a general sense it is true.

10 common law rules. but a purpose for applying the existing rules regarding children. Upon review of the facts and circumstances. In 1834. Rep. the court saw no alternative to granting custody of the children to their father.” Id. or that the latter has an absolute vested right in the custody. is a strong reason why the child should not be restored to her. supra note 125.151 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.B.104 JOURNAL OF LAW & FAMILY STUDIES [Vol. the writ of habeas corpus. the court did not find the father intemperate nor unfit. at 213. and relying on both De Manneville and Addicks. are governed by the judicial discretion of the Court. 155 Wilder. 922. King’s Bench judges were reluctant to depart from precedent and contravene the father’s right to custody even in a very compelling case. 152 Id. the good of the child is to be regarded as the predominant consideration. (citing the traditional common law rules of paternal preference and coverture. The court there thought it for the interest of the child to give the custody to the father. a mother took her children from the marital home where the father had moved in his paramour. As a general rule. when it declared “the good of the child is to be regarded as the predominant consideration. 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. 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. “The unauthorized separation of the wife from her husband without any apparent justifiable cause. 153 Wilder. “Unlike the American courts. 150 33 Mass. 154 (1836) 111 Eng. 151 Id. Interestingly. This ruling so appalled a lawyer in the case.) 203. 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. This case likened American judicial discretion to English authority of the king. that he succeeded in a three year campaign to reform the law which ended in the British Parliament 149 .” Id. The same could not be said of England. The court saw that the unjustifiable family separation was not good for the child. and the father brought a habeas corpus writ to the court to reclaim the custody of his children. Wales Briggs. 922 (K.). 149 The best interest of the child as a legal standard was gaining momentum by judicial discretion.” Id. as parens patriae. In the case of a child of tender years. asserting that the holding in De Manneville “supposes its existence.”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. and all action upon it. (16 Pick. supra note 125. nor had the mother filed for divorce.”153 In the 1839 case of Rex v. Greenhill.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. in directing which all the circumstances are to be taken into consideration. The Briggs court saw the best interests standard as inherent in the legal rights vested in parents. 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). the court even cited De Manneville as not inconsistent with that doctrine. 205 (1834). at 213. Massachusetts followed suit in Commonwealth v.152 The best interest of the child as a legal standard was not a new rule. Lord Talfourd.

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

162 the legal standard regarding children was that all parties and their respective rights. however.). Id. particularly parents in their parental rights. 160 159 . 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. at 116. to recognize and affirm the duty of the state courts “to make such orders as will be for the benefit of the child. and society of their child. For example. Mercein.163 Addicks. he was denied custody of his children.159 Reviewed again in the Supreme Court of the United States seven years later. Mercein was upheld in the federal circuit court for the Southern District of New York. care. the Court noted that family matters were outside. even when a father was acquitted of a crime. a clergy father of six left his home and was charged and apprehended Id. but also (even unwittingly) began setting children as adversaries against their parents. Maybe it reflects yet another natural law—the State as the supreme arbiter of all relationships. 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. at 20. based on what the court deemed in the children’s best interest. at 116.) 103 (1847). in 1851 rather than purely and legalistically deferring to the paternal preference. 164 In Anonymous. the jurisdiction of the Supreme Court of the United States and reviewable as defined by act of Congress only when the dispute exceeds $2. supra note 57.106 JOURNAL OF LAW & FAMILY STUDIES [Vol. the Court recognized that there was no legal reason to grant a writ of habeas.S. and begun its decline toward the greatest concern over the best interests standard itself—judicial overreach abridging inalienable parent rights. Green. 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. They are living separate from each other. 46 U. 10 development refined out of earlier English law. but of its custody and nurture. of its object.000. if not entire perversion. English courts seriously began to apply rules designed to work for the protection of children. Rep. Barry v. “It is not a question of the personal liberty of the child. And it is evidently utterly incapable of being reduced to any pecuniary standard of value.” Id. . even above. (5 How. 260 (Ch.160 The High Court took the opportunity. After this series of American decisions regarding children. Mercein placed a crowning culmination on early American jurisprudence regarding children. 162 Id. Indeed. 163 “[T]he viewpoint reflected in this quotation perhaps is not a utilitarian one. peaked its credibility. the controversy is between the father and mother of an infant daughter. In the case before us. 164 Anonymous (1851) 61 Eng. nor had they jurisdiction to change the ruling. as it rises superior to money considerations. . at 120.”161 Distinguishing a child’s welfare from a child’s liberty interest. but a great extension. 161 Id. The language in Mercein can seem intimidating and broad. and each claiming the right to the custody. This is the matter in dispute. were under an obligation to act in the best interests of the child. Before the middle of the 1800s.” Mercer. .

169 See MASS. For example. and the happiness and welfare of the children are to determine the care and custody. see also WADLINGTON & O’BRIEN. 324 § 752 (West 1854). supra note 167. at 63–64. “for the protection of the children themselves. at 152. 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.”166 Another area of law regarding children took an immediate and radical departure from a basic concept of Roman law.) at 69. FAMILY LAW IN PERSPECTIVE 198 (2001).170 Evidencing momentum for the new doctrine regarding children’s interests. “‘[T]he rights of the parents to their children. ch. 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. other persons will shun their society. Justinian was adopted by his uncle so he could become emperor of Rome. at 151–52. LAWS ANN. 165 . at 62. adoption is child centered rather than adult centered in every State’s codified adoption laws. Eq. the Massachusetts Legislature codified the parents’ rights as they related to the best interests standard in 1855.S. BLOOMFIELD. 168 MASS. Today throughout the United States. When the father returned to reclaim custody of his children. 2 BISHOP ON MARRIAGE 444 (1873). the court noted that its ruling was based on “its general jurisdiction over the interests of Id. in that the primary concern for the welfare of the child was reflected in American adoption statutory law. at 198. AMERICAN LAWYERS IN A CHANGING SOCIETY 119 (1976) (citation omitted).”165 The best interests of the children trumped the father’s rights to custody. at 54. 171 Reprinted in MAXWELL H.167 The first adoption law in the United States was endorsed in Massachusetts in 1851. 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. When the Court refuses to give possession of his children to the father.169 Thus began the American concept of adoption. Id. LAWS ANN. WALTER WADLINGTON & RAYMOND D. at 198. but no witnesses appearing he was acquitted. Post. Id. it is the paramount duty of the Court to do so for the protection of the children themselves. supra note 167. 384 (1869).2008] BEST INTERESTS OF THE CHILD 107 “for the commission of an unnatural crime. 172 21 N. supra note 69.J.” Id. are equal. because they associate with him. supra note 69. 166 Anonymous is also reprinted in JOEL BISHOP. “[T]hat were any communication known to exist between the said children and their father. It set the tone for adoption statutes in the rest of the country. in the absence of misconduct. ch. 2 Sim. they would be wholly excluded from respectable society. 170 WADLINGTON & O’BRIEN. Post argues that Christianity and its virtues were what caused this change in adoption tradition to favor what was best for the child. firmly based in the best interests of the child. supra note 167. GEN. (N. GEN.’”171 The New Jersey case of Baird v. at 198 (noting that adoption’s objective was to benefit minor children in need of parents).” as one charged with such a heinous (yet unnamed) crime. 172 Saddened by the court’s intrusion into the “private household” and reviewing the facts. 324 § 752. see also WADLINGTON & O’BRIEN. 167 Post. Baird demonstrates how solid the BIC standard was becoming in American family law by 1869.

that the case must be determined. 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. therefore. an appeal to the discretion of the court… In the present case. 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). the New Jersey court affirmed again that the paternal preference rule was subordinate to the best interests of the child. but rather upholding its value. 351. 177 For a thorough review and analysis of Turner see David S. others argue that the case and its progeny were an extension of judicial understanding of the needs of children. 178 Rather than focus on a rights analysis. except when. 33 WM. 387 U. 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. & MARY L.177 Though some scholars argue that it was with Turner that cases regarding children turned toward a rights approach. the well-being of the child requires such supersedure. The court’s effort to balance the competing rights is apparent in the opinion.176 A post-Civil War concept of rights of persons inured to children. “Who Owns the Child?”: Meyer and Pierce and the Child as Property. 995. technical right of the father. supra note 177. 1559 (1995) (arguing that Brown v. strict law was not as important as the welfare of the child.175 In this court of equity. 483 (1954). REV. in view of the best interests of the children. Remnants of that presumption continued in parts of American law. 1 (1967). the duty of arbitrating thus between the claims of these rival parents. obviously. at 370–79. REV. 175 Id. at 385. 179 Tanenhaus. Barbara Bennett Woodhouse. Application of the BIC as a legal standard caused a strong dissent.” 173 Not having abandoned the common law. It is upon this principle. 68 TEMPLE L. Between Dependency and Liberty: The Conundrum of Children’s Rights in the Gilded Age. were the first cases involving children’s rights). at least in dicta. O’Conner v. 280. but the welfare of the child. & HIST.S. Foreword: Looking Back. *5 (1870). and In re Gault. Tanenhaus. 355–70 (2005). 23 L. at *6.174 This decision was transparently based on the best interests standard. Schwartz. 10 infants. even when his father had filed a writ of habeas challenging the boy’s confinement. 176 55 Ill. REV.S.108 JOURNAL OF LAW & FAMILY STUDIES [Vol. Looking Ahead: The Evolution of Children’s Rights. in the opinion of the court. Still other scholars argue that substantive rights for children were not recognized until much later. The application under such circumstances is. the Illinois Supreme Court found guaranteed due process protection to children in the state’s constitution in People ex rel. See Theresa Glennon & Robert G. Needs of children as manifested in duties owed to them by adults is . 347 U. Legislation in Illinois that allowed the imprisonment of a fourteen year old boy in a Chicago Reform School. Turner. was deemed unconstitutional and not in the child’s welfare. On such an occasion it is not the dry. but was eventually overcome by the new standard courts were applying regarding the best interests of the child. At common law the paternal presumption prevailed. 179 This 173 174 Id. Id. Id. Board of Education. 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. at 384. Id. which will form the substantial basis of judgment. 178 Id. it is felt to be one of painful responsibility. By 1870. 1557. The legal right of the father will not be passed by.

the North Carolina Supreme Court first changed the rule of fathers’ rights in custody disputes. for example. 299. not women. then. the paramount consideration is. a New a clear thread in the cases traced here from 1789. 305 (Ohio 1877). Bayer. 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. Id. In 1883. but was acknowledged as a change in the law as it had been previously known. It did so by focusing on children. or determine absolutely. The Kansas Supreme Court in 1881 recognized the welfare of the child as the overriding consideration in Chapsky v. *2 (Kan. supra note 1. Perhaps it may not be technically correct to speak of that as a right. 650. at 102–03. Above all things.. Wood. In justifying this change of focus. . What the future of the child will be. This distinction must be recognized. 184 In 1889. supra note 4. at 225). the right of the one who has filled the parental place for years should be considered. . making them “their paramount consideration. at 144. . 180 In Clark. and yet. yet we have to act upon these probabilities from the testimony before us. the BIC concept nearly outgrew all other rules of law. 181 26 Kan. 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. where that court ruled that it need not be constrained by the rights of the parents in a custody dispute.183 The best interests of the child was recognized as a legal standard that maintained continuity for children. who have discharged all the obligations of support and care which naturally rest upon the parent. have discharged all the obligations of care and support. supra note 104. . Id. guided by the ordinary laws of human experience. at *2–3. and especially when they have discharged these duties during those years of infancy when the burden is especially heavy. in many states men continued to enjoy a presumptive right to their children’s custody. 182 Id. . is a question of probability. will depend mainly upon the question whether such custody will promote the welfare and interest of such child. but settled on the overriding interests of what was best for the children. Id. 1881). what or what would not be best for it. The right of the father must be considered. they who have for years filled the place of the parent. it is but fair and proper that their previous faithfulness. 184 GOLDSTEIN ET AL.2008] BEST INTERESTS OF THE CHILD 109 approach was followed and expanded upon in the 1877 Ohio case of Clark v. As late as the 1880s. The concept of the best interests of the child spread with the westward expansion of America. and the interest and affection which these labors have created in them. No one is wise enough to forecast. [When a] child has been left for years in the care and custody of others. . but would look to an analysis of the best and highest interests of the child alone. 180 32 Ohio St. 183 GUGGENHEIM. should be respected. what will promote the welfare of the child?. (citing GROSSBERG. The BIC standard became quite formidable when the new standard was used to overturn the natural parent presumption.181 The Kansas court struggled with the common law rules. whether the courts will enforce the father’s right to the custody of the child.182 The trend toward the new legal standard for children took time to occur. and often worked in tandem with the presumption favoring biological parents.

190 A similar outcome was reached in Kentucky in 1875 in Ellis v. supra note 4.”187 As this chronicle of case law demonstrates. 1875). The court reasoned that the child was of proper age to make such a decision since she was 13. this in turn greatly broadened judicial discretion in regard to “the true interest of each child. its welfare will be paramount consideration in controlling the discretion of the court.. a 1905 case upholding the constitutionality of a compulsory smallpox vaccination law.”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. the Supreme Court of Kansas. Some scholars believe it began to take away parental authority and was responsible for largely reducing the rights of parents generally. 2 MARRIAGE. Solnit and Freud in their book Beyond the Best Interests. the court was willing to overturn it. where a child’s choice controlled the matter of custody.188 Apparently expanding the governance of the family by the courts. 10 Jersey court noted in Richard v. 188 GROSSBERG. at 187 (discussing Richard v. by the end of the nineteenth century the BIC standard was quite developed. Smith v. Collins). Massachusetts. Swimley found a court reasoning that “the rights of the child” are first to be considered in a custody proceeding. 197 U. 1886).. GOLDSTEIN ET AL. 1939) (consulting child’s wishes to the extent that it would serve the best interests analysis). Black. 95. Collins. supra note 104. Collins became precedent for using the best interests of a child as the legal standard in New Jersey. 7 A.191 Still other courts objected to such legal 17 A. SEPARATION AND DOMESTIC RELATIONS 2025–26 (1870). (11 Bush) 403. that the judges’ task is to “fix the future status of the child [] with some stability and permanence. 191 74 Ky. Reams. allowing the court to rely on the child’s wishes in its custody determination. 189 JAMES SCHOULER. in an earlier case. Another case that same year in Virginia held that the court should exercise its discretion. Wood. 650 (1881)). 190 82 Va. 831. at 254–71. Id.186 The Richard case was discussed at length by Goldstein. Jesup. at 192 (referring to Chapsky v. 187 GOLDSTEIN ET AL. 14 So. 11. “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. 433. 186 185 . Smith. 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). Similarly. see. Coffee v.” Id.g. Because the mechanical application of the presumption would not serve its purpose. supra note 104. at 832. 27–39 (1905). e. overturned the presumption in favor of fathers. 832 (N. 1889). An example of this broadened judicial discretion is found in Jacobson v. but could look to the child’s wishes as a factor in that determination.2d 829 (N.J. the Virginia case of Merritt v. 26 Kan. 4 (Va.. 82 Va. *7–8 (Ky. In 1886. Ch. 1886). see also Marshall v. Richard v.”185 Although the court stated that natural parents have superior rights. 567 (Va. 95–97 (Fla. it recognized the child’s need for continuity and ruled for continuing custody with long term foster parents. DIVORCE. “In controversy over its [the child] possession.110 JOURNAL OF LAW & FAMILY STUDIES [Vol.S.. 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.J.

200 Id.3d 1396 (originally published in 1965). 401–03 (1923) (finding parents a have right to direct the upbringing of children.’ and was boosted by the rise of the first family court in Buffalo. at 283.197 Much of the law regarding children started to become known as ‘child welfare reform. even to learn German language in the post WWI era). 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.. 19 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. 43 Iowa 653 (Iowa 1876) (same). which the court found in violation of child labor laws).S.g.S. supra note 62. Child’s Wishes as Factor in Awarding Custody.R. 390. 196 321 U.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. New York in 1909. 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. 197 GROSSBERG. 604. O’Neill. e.W. *1 (S. 158. 199 WARDLE & NOLAN. This tender years presumption prevailed in many jurisdictions where laws were established stating that mothers were presumptively entitled to custody. 4 A. 193 For a very thorough overview of cases that considered a child’s wishes as a factor in awarding (or denying) custody see D.C. 194 262 U.C. 534–35 (1925) (finding parents have a right to direct the education of children. supra note 4. at 858–89. Ex Parte Reed. 198 SUSAN TIFFIN.193 The use of rights for children tended to posture their interests against those of their parents. 198 Also based on this review. Though parents’ rights to direct the upbringing of their children were affirmed in Meyer v.200 This presumption. 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. Society of Sisters.195 it was limited in Prince v. setting the trend for a family court system in each state jurisdiction.199 Paternal preference completely gave way in late 1890s to the presumption that children need their mothers more (than fathers) in tender years. S.2008] BEST INTERESTS OF THE CHILD 111 rationale. IN WHOSE BEST INTEREST?: CHILD WELFARE REFORM IN THE PROGRESSIVE ERA 160 (1982). Nebraska194 and Pierce v. 195 268 U. 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.L.196 Increased judicial discretion in cases regarding children affected numerous families. Massachusetts. 510. which includes the choice for private religious education). Shaw v. 1883) (noting that the wishes of the child were disregarded as contrary to the child’s best interests). . which could only be overcome by evidence of 192 See. Nachtwey.

697 (Ala.209 This primary caretaker presumption abolished all gender based presumptions for custody. 205–06 (1972). in AN INTRODUCTION TO ETHICS 161. 204 Mercer. 63 N. 206 Id. and those decisions rested on pure discretion.”203 “A judge’s intuition is a judges’ discretion to decide. REV.205 The most important children’s rights case in American history.2d 562. 209 See generally Marcia O’Kelly.202 The court was often the final arbiter on what it took to raise responsible citizens. 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). 1977). Ex parte Devine. 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”). §107. 71–72 (1967).137(3) (1981) (no preference for mother over father) and OR.S. The rule was later codified as a presumption at OR. when equal protection clause claims of gender preference brought about the initial demise of the tender years doctrine. 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. 1977). at 25. 208 Constitutional concerns over gender equality then entered the scene.201 Making custody decisions based on children’s needs often meant keeping kids with their mothers. at 7. 202 SUZANNE RAMOS. 205. independent of the parties’ wishes or the dictate of a pre-ordained law. Blessing the Tie that Binds: Preference for the Primary Caretaker as Custodian.S. 207 GUGGENHEIM. 572 P. 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. but also meant the continued broadening of the state’s interests in its future citizens. 398 So. continued to be the law in many jurisdictions until the 1980s.”204 This type of jurisprudence pushed the best interests standard to be so completely dependent on judicial discretion.D. L. 1977). Ethical Intuitionism. 205 In re Gault. 564 (Or. as the primary caretaker presumption was shaped by Derby v.” 207 Parents’ rights. supra note 1. Ewing. the best interests standard could be viewed as a form of ethical egoism—serving the greatest good of the State. 164 (Robert Dewey & Robert Hurlbutt III eds.137(4) 201 . 1. modified on other grounds. 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.C. were then reaffirmed in Wisconsin v. 203 See A. supra note 57. or “intuition. App.206 “The Court attacked juvenile court as an institution established to help children but which rarely met its lofty purposes. Derby. THE COMPLETE BOOK OF CHILD CUSTODY 35 (1979).210 Remnants of Cf. 2d 686. Courts ruled that there could be no preference or presumption based on gender. 210 Oregon’s statutory and case law on custody provide a good example. STAT. 10 unfitness. This case recognized the primary care-giving parent (regardless of gender). 208 406 U. REV. however. Ct. App. 571 P.112 JOURNAL OF LAW & FAMILY STUDIES [Vol. 481. Gault recognized a child’s right to procedural (due process) safeguards.. STAT. It apparently and cleverly led to a movement for children’s rights. “In sum. 387 U.” Id.2d 1080 (Or. Yoder. §107. Ct.

” Id. or using both techniques. U. e. 214 See.215 In invoking the ‘best interests of the child. Statutory codification of the BIC standard occurred in West Virginia in 1980 with an initial draft of a BIC definition (but with no guidelines). available at http://www. either by defining the standard. 212 See. STAT. 211 See.3 (1994). W. Hollon. . e..212 Yet the best interest of the child doctrine remains the standard legal doctrine. CODE § 48-2-15 (1980). W. in which a preference for maternal custody is considered merely a factor along with other evidence hearing on the child’s best interests).gov/systemwide/laws_policies/statutes/best_interstall. VA.S. REV. Raymon Zapata.E. 784 So.211 and this doctrine is fostered ardently by some feminist family law scholars. even if only a refrain. The free reign of judicial discretion in the name of the best interests of the child led to some states codifying their standards. pdf (summarizing the Best Interest of The Child laws in all 50 states.g. individualized adjudication of the particular facts of each case without the constraint of objective guidelines. or to threaten a satisfactory family with loss of children because by reason of temporary adversity they are placed in foster care. OR. of a separation so long as to permit very strong bonds to develop between the child and the prospective adoptive parents... A parent cannot be deprived unless some affirmative reason is shown for doing so such as a finding.. CODE § 20-124.2008] BEST INTERESTS OF THE CHILD 113 the tender years doctrine. or by listing guidelines and factors to be considered. 861 (Mass. 1975).214 Attempts to balance codification of the BIC standard and case law with parental rights are evident in some cases. Child Custody in Texas and the Best Interest Standard: In the Best Interest of Whom? 6 SCHOLAR 197. The New York case of Bennett v.2d 854. Hollon v.137 (1981). 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). 328 N. do continue today. 1007 (Conn. at 1007. jurisdictions) [hereinafter SUMMARY OF STATE LAWS]. and other U. 283 (N. 947 (Miss.S. MARTHA ALBERTSON FINEMAN. 216 In re New England Home for Little Wanderers. DETERMINING THE BEST INTERESTS OF THE CHILD: SUMMARY OF STATE LAWS passim (July 2005). 176–93 (2002). . § 107. The Connecticut Supreme Court defended that state’s codification of the best interest standard despite the clear guidelines in Seymour v.g. DEPT. 433 A.’ the Legislature did not intend to disregard the ties between the child and its natural parent. “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. 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). OF HEALTH & HUMAN SERVS.E. . THE NEUTERED MOTHER. Oregon incorporated interdisciplinary knowledge of child development. 1980) (listing factors the court considered in determining the BIC which were followed in case law thereafter).childwelfare. 203 (2003) (discussing the application of Texas’ statute and how factors listed in the statue fail to be analyzed in some high profile cases). Seymour. Jeffreys ruled that both the BIC and parents’ rights are to safeguard stability and continuity for children. VA. e. however. THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 12–28. and listed factors with guidelines. 213 See generally CHILD WELFARE INFORMATION GATEWAY. 2001) (reaffirming a weakened version of the tender years doctrine.Y.g. 215 356 N.2d 1005.2d 277. 213 Statutes of individual states are sometimes criticized for the same reasons that the BIC standard is disparaged. 2d 943.

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

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

App. but the individual judge cannot order that such proceedings must be heard by him.232 Some courts have tried to bridle and limit judicial discretion. made of himself a witness. . and the jurisdiction which the judge exercises is the jurisdiction of the court. Osslo. 233 In re Marriage of Matthews. 232 People v. To announce that you are prepared to intervene for the best interests of some other person or party is guaranteed to provoke the quick. he became an unsworn witness to material facts without the [parties] having any opportunity to crossexamine. 161 Cal. 264 (Allen F. Rules of court which provide that posttrial proceedings in a cause shall be heard by the judge who tried the matter are entirely proper. David J. 230 Mercer. at 731–32. 231 See generally Kathryn L. Woodman eds. 5th ed. in CONFLICT AND CONSENSUS IN MODERN AMERICAN HISTORY 257. Ct. 413 (Cal.2d 397. To characterize this transformation in summary fashion.2d 124. Mercer. and that parents are the truest protectors of their child’s best interests. not the individual judge of that court.234 In effect. it is apparent that judges and jurists were working hard to balance universal moral law with welfare of children. the court noted that: An individual judge (as distinguished from a court) is not empowered to retain jurisdiction of a cause. . 879. The danger arises when the dicta of the BIC doctrine is “used to justify any decision reached. 33 A. 389. even with an abusive parent and genetic surrogate rights. even knee-jerk response that you are masking your true. 881 (Cal. Rothman. 1980) (stating that a judge goes beyond his power to limit all future proceedings to be brought before him only). 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. not of the judge. 229 Carbone. Osslo. 323 P. 234 See BREEN.229 In the two hundred years of American family law jurisprudence traced here. supra note 57. twisting a standard for children to serve adults. self-interested. 126 (Conn. Davis & Harold D. to offer countervailing evidence or to know upon what evidence the decision would be made. 1980). 1943). They understood that children are best protected by parents who have the inalienable right to do so. at 45. 1958). REV. 10 custody. .116 JOURNAL OF LAW & FAMILY STUDIES [Vol. 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. motives.”230 The ethics of judicial discretion continue to be a concern of family law scholars. Kpovacs v. Rptr. 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. Szentes. The cause is before the court. 392 (1997) (examining how a judge’s ethical framework influences custody awards under the BIC standard).. This model of the State as parent was rejected by conservatives and liberals alike in the 1970s. supra note 7.231 In People v. at 31 (emphasis in the original). which is in turn dependent upon the . and in making [these findings] availed himself of his personal knowledge. and it was closely linked with the BIC standard as a façade for judicial positivism. The State as Parent. the trial [judge]. 33 IDAHO L.233 Scholars have attempted to make reforms to the judicial application of the BIC standard by harnessing and directing a core set of factors. supra note 39. as a basis for [his] findings.

“Separate representation would ensure that the child’s best interests were represented. 481. Those that have written in the area of the best interests of the child have tended to focus on the above considerations. The Proper Role of the Lawyer as Legal Representative of the Child. supra note 57. the child’s need for continuity. and attempts to use and reflect that in a custody decision after divorce. Parental Preference.236 Solutions are being promulgated. In general. The approximation rule. (setting forth approximation standard). 237 Mercer. Pluralism. at 357 (arguing that presumptions at least have standards upon which advocates and parents can rely in litigation).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. supra note 63.”237 Some family law scholars have offered new solutions for applying the BIC standard. 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. 18 ALBERTA L. the opinion of the child and the members of its family. then no case would have precedential value. and finally. 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. 238 Elizabeth S. 236 Klaff. L. albeit to greater and lesser extents. Such a system has obvious jurisprudential shortcomings. with Shelley A. CT. REV.2008] BEST INTERESTS OF THE CHILD 117 The greatest concern with the best interests analysis lies with the judge who makes it. his or her decision making process is relatively unbridled. McHale. the following core set of factors need to be considered: first. 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. If defining standards are not provided.J. Unless the state legislature or previous case law has afforded the judge some guidance in terms of key factors and elements to consider. 219–20 (1980) (explaining the debate that continues to surround the use of and duties of a guardian ad litem). at 30. 427. Riggs. Judge Crippen is an active member of the Minnesota bar and judiciary. 235 . third. Id.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. 75 MINN. Id. 80 CAL. 615. If every judge were at liberty to determine what would be best for a child. but this makes substantive decision-making very difficult for judges. 43 FAM. the risk of harm to the child. 481–82 (2005) (critiquing the assumptions and implications of the approximation rule from the standpoint of attachment theory). Gary Crippen. Is the Approximation Rule in the Child’s Best Interests? A Critique from the Perspective of Attachment Theory. is one such concept. depending on the factor under consideration. 239 Compare id.J. REV. The rise of the guardian ad litem (GAL) has offered hope for less judicial positivism regarding application of the BIC doctrine. and Child Custody. 216. 500 (1990). L. the child’s sense of time.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. see also M.”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. second. REV. Scott. first promulgated by Professor Elizabeth Scott. REV. 617 (1992) (proposing the approximation rule as a tangible way to apply the best interests standard).

certainly a part of a child’s best interests. 36 J. Developing Beneficial Parenting Plan Models for Children Following Separation and Divorce. 241 See generally Riggs. In childhood. Every judge. supra note 30. at 214. remarkably consistent findings were demonstrated. at 214 (discussing judicial discretion in custody cases that present a religious freedom element). supra note 125. DeVries argues that current cultural. A strong argument can be made that DeVries places quite an overwhelming burden on children. isolate and either exploit or overcome the unstated assumptions which pervade the decision-making process in every custody case. at 172. A presumption-free environment is ultimately unrealistic. . LAW. Id. and a faith base can offer positive elements to the legal landscape. 244 Cf. and to resist what she calls the “instrumental valuation of childhood” that our culture currently adheres to. 486–90 (arguing for more protection for children than the approximation theory can provide based on evidence provided by classic attachment processes research). Despite differences between the two samples in race. when it is adults who need to act to protect children from that burden by providing for their best interests in safely reaching adulthood. an important element of healthy childhood. security and love to a child. Kelley. children perceived God as both nurturing and powerful. squelched or even denied in a custody award. understand and address the biases which the judge brings to the decisionmaking process. at 167. though contrary to dominant cultural theory now influencing family law. MATRIM.244 240 But cf. 19 J. it might assist judicial discretion as a guide in a custody decision. Some of that bias is revealed in the fact that religion is one ingredient that is frequently silenced. 243 Cf.241 The approximation rule would not do well to completely replace the BIC standard because of its pure quantitative measurement. it is parents who directly and indirectly impact God-images. “The time has come for theology to recover the resources in both Bible and tradition for a fully intrinsic valuation of childhood. but if applied with additional evidence that shows which caregiver offers protection. SCI. socioeconomic status. Dickie et al. Jane R. ACAD. 10 children who display classic attachment behavior from a quality attachment to a caregiver. 242 Wilder. “Every custody litigator knows that the judge is the most important witness in any custody case and strives hard to identify. STUDY RELIGION 25. has inherent biases and uses various presumptions. . Id.” Id. even if unconsciously. Kelley argues that adoption of this approximation rule is not an improvement on the BIC guidelines. Joan B. legal and political struggles over children will continue until American Christians advocate on behalf of children. 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.. to be our guides in this effort.. and often highlights judicial biases. Children need parents to advocate on their behalf. . 241 (2005). and religious affiliations. DeVries. . 237. supra note 239. indicated their perceptions of parents’ and God’s nurturance and power and reported on discipline in the home. . When parents were perceived as nurturing and powerful (especially when mother was perceived as powerful and father was perceived as nurturing). when it may be.243 This can be a key component to the healthy growth of a child. Parent-Child Relationships and Children’s Images of God. AM. Id. at 167. which will often be extremely difficult to change on appeal.”242 Unbridled judicial discretion builds no good jurisprudence. to make an initial award of custody. 25 (1997). by virtue of his or her humanity.118 JOURNAL OF LAW & FAMILY STUDIES [Vol. [C]hildren ages 4 through 11. however.

Id. rather than children’s rights which work to the detriment of the family upon which the child’s best interests rely. at 274. 247 Carbone.g. and judges later if parents abdicate their God-given roles. Consequently. supra note 93. 250 MARY ANN GLENDON. 249 Id.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. at 733. at 273–74. 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.245 Protection of children by parents is thereby diminished. and presenting various studies supporting the assertion that parents are spending too little time with their children to form adequate relationships). at 1290–94. and our present responsibility in stewardship. 246 In reviewing Mary Ann Mason’s historical work on custody standards. at 732–34. at 1244. See.”252 Responsibility for children lies with parents first. working to strengthen marriage as a social institution. THE TRANSFORMATION OF FAMILY LAW 102–03 (1989). SOC’Y CHRISTIAN ETHICS 263. In fact. and the father’s rights approach to “replace marriage with conception as the defining element of parenthood”).. See also Duncan.251 To respond to the needs of family formation in America the law and society must see that “children are gifts of creation. supra note 212. I believe the best interests of a child are served by strengthening the state’s acknowledgment of. supra note 7.249 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. Carbone. parental rights. Harvard law professor Mary Ann Glendon serves now on the Council on Families in America. 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. 252 Id. 251 See generally Todd David Whitmore. supra note 7. in individual cases. at 733–35 (opposing Martha Fineman’s mother/child dyad promoted in her book THE NEUTERED MOTHER. supra note 7. Whitmore proffers that this thinking is already a part of the Catholic tradition and merely needs to be taught and implemented in developed detail.253 The ultimate goal of the best interests standard is Id. a hope for the future. Children and the Problem of Formation in American Families. See Carbone. Justice Parker states his judicial view of this fact. It remains a serious legal apprehension that the data shows a failure of child formation in families. the best interests of children are served by the state’s declining to interfere with family government merely because its agents can.”250 These concerns have had serious negative implications for children and their welfare. Id. supra note 93.C. conceive of ways to improve the lot of a particular child. and the well being of children is naturally affected. holding firm to the best interest of the child standard. Duncan proposes that we focus on the family unit by enforcing parental rights without jeopardizing the necessary protections granted to children. at 732–37. see also Hafen supra note 99. 248 Id. 247 She argues for these decisions to “take place within a framework set by assumptions about the kind of family life society should promote. at 733. and deference to.”248 and makes a case for marriage being essential to a child’s best interests.. which by its nature cannot love. 15 ANN. Duncan. 253 In his dissent in Ex parte G. e. at 1242. 246 245 . 264–68 (1995) (addressing the problem from the Roman Catholic tradition in placing responsibility for children on parents.

120 JOURNAL OF LAW & FAMILY STUDIES [Vol. Though sparks of the BIC doctrine began in natural law and influenced the common law in England. That is the current policy and goal of this area of law.”254 The foundation of the best interests standard is critical to this discussion. the doctrine has been developed and rooted in American family law jurisprudence for the past two hundred years. 685 (Ala. 2005). . 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. Begun in case law and fostered in the soil of judicial responsibility. 254 WARDLE & NOLAN. 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. supra note 62. 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. May that sense of judicial responsibility be edified by the discussion undertaken by this article. 10 to preserve parent-child relations..” Ex parte G.C. it has been thoroughly sown into the fields of American family law jurisprudence through statutes as well. The BIC doctrine has indeed dramatically influenced family law jurisprudence not only in America but globally as well. 924 So. 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. Jr. the standard is an American-grown concept. at 866. and that has had a dramatic effect on the family. 2d 651. V.

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