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

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

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

The Christian Origins of the Law (Feb. Calvinist-inspired reforms became the basis for the historical common law tradition.claremont. Mark 10:14–15 (Rev. Toward a Theology of Childhood. PHILIPPE ARIÈS.”33 This attitude permeated the law surrounding families.. 38 Id. 35 Theology and its reforms produced and shaped legal transformations. do not hinder them. 34 This trio offers a good deal to an historical analysis of family law development. Yet. An essential concept had won acceptance: that of the innocence of childhood. and Calvinist covenant theology had a transforming effect on reform of private life. from which derives the basic topics of our contemporary law school curriculum. he belonged to adult society. . 13. whoever does not receive the kingdom of God like a child shall not enter Truly I say to you.”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. as soon as the child could live without the constant solicitude of his mother.32 “That is why. for to such belongs the kingdom of God. 33 Id. at 129.30 “Let the children come to me. 35 Id. his nanny or his cradle rocker. the discourses of Jesus Christ regarding children provide a striking contrast to such modern theories.html (discussing HAROLD BERMAN. at 110.”38 This apparently universal moral law combined with the 29 30 CARROLL. 55 INTERPRETATION 161. 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. Standard). a reflection of the universal moral law. constitutional law and family law among them. supra note 16. despite the influence of Christianity.”31 The influence of Christianity on the treatment of children was certain. 2006). . 37 ARIÈS. 162–64 (April 2001).29 At a time when societies viewed children primarily as products.36 These religious reforms affected the culture and the law. 32 31 . http://www. The Claremont Inst.” Id. and an expression of the historical traditions of a people. supra note 32. consumers. 36 Id. 34 Peter Judson Richards. Dawn DeVries. . at 127. and by the end of the seventeenth century “a new concept of childhood had appeared.2008] BEST INTERESTS OF THE CHILD 87 children” in a way that departs radically from this larger cultural and biblical pattern. “It was Berman’s contribution to identify the context of these beginnings within the corresponding train of historical developments in Western Christendom. causing a “great change in manners [to] take place in the course of the seventeenth century. LAW AND REVOLUTION (1983)). There was no conscious awareness of the particular nature of a child which distinguishes him or her from an adult. The Protestant Reformation entailed the reform of law with Philip Melanchton’s method of analysis. the idea of childhood was lacking in medieval society. CENTURIES OF CHILDHOOD: A SOCIAL HISTORY OF FAMILY LIFE 128 (1962). and burdens.

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

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

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

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. Parents farmed their children out between the ages of seven and fourteen. Most youth were incorporated fully into the work force by age fifteen. “The standard of the best interests of the child may generally be described as a principle deriving from Anglo-American family law. supra note 62. 64 . and the father. supra note 39. the culturally reinforced idea that mothers should get custody of young children. at 148. While the transformation came slowly in contrast to the fast pace of political events or economic development.2008] BEST INTERESTS OF THE CHILD 91 of the Best Interest of the Child standard. important to the economy of a growing nation. from the relationship of dependency which existed between the biological parents and their offspring. 67 Mercer. “Admittedly. “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 colonial view of children as helping hands in a labor-scarce economy gave way to a romantic. “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. concern for the best interests of children was most apparent in the development of adoption law in America. in particular. The best interests standard was the American WARDLE & NOLAN. under the complete control of their fathers or masters. emotional view of children. KETT. RITES OF PASSAGE 18 (1977)). and thus. 66 Id. “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.”65 The common law was brought to America with the colonists and continued to be the basis of American law. (citing JOSEPH F. Rather. at 45.”67 The legal and social status of the child was transformed during the first century of the new republic. Id. supra note 57.”66 Children were still part of the American family economy. 68 MASON. Professors Wardle and Nolan explain the variations of the presumption. 65 BREEN. they were apprentices thereafter.”69 This provided a formidable wave of jurisprudence regarding children. Natural law arguments in favor of parental authority and parents’ rights prevailed during the founding period of the new world. and the fact that most mothers personally assumed custody of their children without a contest. who were no longer legally akin to servants. Id. supra note 6. it was nevertheless relentless. at 50. at 15. at 44. at 858– 59.68 More particularly. but instead were deemed to have interests of their own. the state with its welfare and utilitarian concerns. Children were regarded primarily as revenue-generating property during the infancy of the United States. The stakeholders at this point were the child as an emerging adult.” Id. it is more likely that an American influence in the English jurisprudence allowed the western development of the BIC standard.

74 Meanwhile in England. 71 Id. or a substitute family. Christianity and socio-legal reforms were forming an entirely new basis for family law development in the new world. 151 (Spring 1997) (discussing the Christian tradition in adoption). L. 69 . “Christianity ‘discounted the importance of lineage and descent. RELIG. which in turn gave way to state action to rescue children from the street. at 337. intended for custody determinations of only the very Stephen G. from delinquency.. 73 BREEN. 28 WASH. upon which the child would depend for protection. rather than a child for a family. . and common law approaches. 72 See WARDLE & NOLAN. Citing John Boswell’s The Kindness of Strangers.72 A uniquely American blend of antiquity. 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. 70 Id. 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. Post. civilian. setting a completely new standard.The child was gradually to be restored to the true position of childhood by being placed within a family.” Id.92 JOURNAL OF LAW & FAMILY STUDIES [Vol. Kuhlman.’”70 This was in direct contrast to adoption in England which still followed Roman legal concepts of adoption focused on purposes of inheritance." Id. 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. 223 (1943)). American law sought to ‘establish an institution to ameliorate the condition of the neglected and dependent child. at 135–36). Such a childhood was to be found only in the bound of 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.73 The solution to this and to the general problem of street children was to turn the delinquent once more into a child. Interstate Succession by and from the Adopted Child. ETHICS 149. 74 Id. Colonial concern for the child in need of a family gave rise to philanthropy. U. supra note 39.71 The American concept of adoption was so based in the best interests of the child that it entailed a new meaning for adoption: adoption was about finding a family for a child. supra note 52. Q. at 41 (citing CUNNINGHAM. and set the standard which the world now follows. Post argues that this adoption tradition favoring what was best for the child over what the family wanted is grounded in Christian tradition. By the nineteenth century this American blend flavored all actions toward children. therefore. which emphasized adoption as a means of establishing family heirs. 25 J. supra note 62. Adoption Theologically Considered.” Id. . at 41. “In contrast to Roman law. Thus. 221. "This primary focus on the welfare of children without families distinguished American adoption from the classic Roman. at 151 (citing Fred L. at 152. Inheritance rights were only incidentally considered. the Chancellor Lord Talfourd promoted the earliest “tender years” doctrine. 10 framework of adoption. at 151–52. which have been prominent in Jewish religious identity’. “Our statutes.

after the end of the colonial period. and should.77 Out of this utilitarian jurisprudence that transformed much of England’s law on children. 248 (R. at 160). 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. at 122. too negligent of the future. THEORY OF LEGISLATION. supra note 39.”80 Concern for child welfare in the late 1800s included illegitimate children. such a being must be kept under an authority more immediate than that of the laws.”). See generally BREEN. supra note 6. at 43. 1840). 78 Mercer. Too sensitive to present impulses. Everything must be done for an imperfect being. MASON. REV. it has already strength and passions. I.76 Utilitarianism had a continued influence in British family law. 79 See BREEN. & Co. . 17 LAW & HIST. 77 1 JEREMY BENTHAM.79 Throughout the nineteenth and into the twentieth century reformers and philanthropists became “deeply imbued with the Romantic belief that childhood should be happy…. The changing status of women… was a critical factor in this transformation. At a certain age. MASON. supra note 6.2008] BEST INTERESTS OF THE CHILD 93 youngest of children75 and largely viewed as a product of natural law. .. . combined with a natural law foundation and the American development of and emphasis on a best interests approach. with a presumption in favor of mothers as the more nurturing parent.with recognition to be accorded to the special needs and characteristics of the child. see also Mercer. . 76 75 . . 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. The feebleness of infancy demands a continual protection. 312 (Summer 1999). The complete development of its physical powers takes many years. VOL. supra note 39.” 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. MASON. Michael Grossberg. supra note 6. and in 1840 Jeremy Bentham sought to organize the country’s laws to place the general good above that of the individual. 309. Who Determines Children’s Best Interests?. supra note 15. In the first hundred years of the new republic. supra note 52. intervene to promote the development of good citizens. at 50. as well as those children suffering from the effects of the Kelly. supra note 57. Thus. without experience enough to regulate them. which as yet does nothing for itself. supra note 39. at xiii. which meant that children needed state protection. at xiii. Jordan. that of its intellectual faculties is still slower. at 19. 80 BREEN. from 1790 to 1890. Hildreth trans. a fresh jurisprudence regarding children developed in the West. by 1850. He argued for reforms based on the common good. at 42 (citing CUNNINGHAM. This influenced the law regarding children. supra note 57.78 This has led many family law scholars to view the BIC standard as a nineteenth century tradition. 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. a duality existed between the growing state intervention and the laissez-faire approach to private family maintenance. Weeks.

To What Extent is the Application of Family Law in the Best Interests of Children? (May 22. 10 industrial revolution.84 Scholars in this area of child law generally claim that the basis for juvenile justice is grounded in the BIC standard. is ostensibly being done with the best interests of the child in mind. 2006). The Romantic child already exists in a state of nirvana. rather than circumscribing the best interests of the child.94 JOURNAL OF LAW & FAMILY STUDIES [Vol. 176 (Howard Davidson & Robert Horowitz. 1986). at least for a growing class of parents. the law presumed that children fourteen years old or older had the same criminal capacity as adults and. at 47. see also BREEN. from arrest to disposition.”85 Others. Id. it is the ‘Other’.86 Twentieth century jurists continued the development of the doctrine in case law across the nation.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. and children were assigned an emotional value. but juvenile justice jurisprudence as well. 85 John R. Id. It is this state that the best interests standard seeks to attain for the ‘Other’ child. The BIC standard began to spread internationally during the twentieth century. AND CONTEMPORARY ISSUES 175. the corrupt child. COMMENTARIES ON THE LAWS OF ENGLAND). at 30. supra note 39. “The rights of the child were first brought together in one internationally 81 82 MASON. The juvenile justice criminal system in ulum/units/1994/1/94. 86 Luis Recalde. in LEGAL ADVOCACY FOR CHILDREN AND YOUTH: REFORM. consequently. supra note 39. essentially rested on the tradition of best interests standard. However.x. 34–42. Id. increasingly entrenching the BIC concept as a permanent fixture in family law. TRENDS. although the innocent child may provide the measurement of best interests. Juvenile Corrections Facilities: Is There Any Room for the Isolation Room. “Everything done during the course of a juvenile court proceeding.”82 Over the eighteenth and nineteenth centuries the best interests of the child became a part of not only American family law jurisprudence. and is applied to the extent that the child is not transferred to adult criminal courts. Breen sets out the common law rules: Such rules provided that there was an irrebuttable [sic] presumption that a child under the age of seven was incapable of forming criminal intent and thus could not be liable for his criminal acts. when. enhanced by the romanticization of their mothers. It is this child which has provided the norm by which the standard of the best interests of the child has been measured. available at http://www. Bird. 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.yale. which has been the true object of the best interests standard. Finally.26 (citing WILLIAM BLACKSTONE. Id. disagree that there is ever a good application of the best interests standard in the juvenile justice system.01. were always liable for their criminal offenses.81 “The ‘best interests of the child’ slowly developed as a legal concern in the new republic. eds. 84 83 .. supra note 6. child labor needs were less urgent. however. n. at 20.05. The ideal of the innocent Romantic child has continued to represent and define our perceptions of the child over the last two centuries.html. at 43. at 206. BREEN. Yale-New Haven Teachers Inst.

J. Id. at 43 (citing R. THE RIGHTS OF THE CHILD AND THE CHANGING IMAGE OF CHILDHOOD 444 (Martinus Nijhoff Publishers. at 25 (adding the enshrining of the family in the Irish Constitution as in conflict with the best interests standard).87 These BIC traditions originated in western law.E. L. supra note 6. 193. supra note 39. In . supra note 39.”89 Indeed. 24 CAL. at 16.2008] BEST INTERESTS OF THE CHILD 95 recognized text in 1924. This latter tradition concerning the rights of parents ultimately gave way to the standard of the best interests of the child. Failure to uphold the best interests standard is vividly displayed by the practice of female genital mutilation in many African nations. The rights based approach has attempted to determine the appropriateness of according rights to children whereby varying degrees of autonomy are granted to children. but also an impact on the legal evolution of the jurisprudence generally surrounding matters regarding the disposition and future of children. 197 (1994)). VEERMAN. 1992)) (“The view that children were the (now valuable) property of their parents remained well into the nineteenth century. at 67. children’s rights grew and 87 BREEN. creating a new area of law—that of children’s rights. Id. Levesque. SAVE THE CHILDREN ITALY. “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.91 A tension developed between notions of protectionism and autonomy in regards to children’s rights. 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.” 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. W. 90 The doctrine has had a global impact. but were universally promulgated through the United Nations Convention on the Rights of the Child.88 This was the triumph of a uniquely American concept adopted by a global community of persons concerned for children’s welfare. 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. as reprinted in. at 16. although paternalistic in nature.’ the latter being a non-governmental body based in Geneva. P. International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic Policy. at 77 (citing Declaration of the Rights of the Child. Breen notes the undercurrent of cultural relativism that flows through the Convention on the Rights of the Child. J. 89 Id. 92 MASON. 90 ELENA ROZZI. was based upon a greater degree of interventionism into family life. As the tradition of paternal supremacy waned. Id. clearly a clash of legal ideals and social traditions. the BIC standard has become critical in evaluating custody decisions in repatriation cases. a tradition which. supra note 39. supra note 39.92 From the BIC doctrine. adoption. 91 See BREEN. fostering. 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). at 148.”). showing somewhat of a tolerance for practices prejudicial to the health of children.” Id. BREEN. INT’L. 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.R. at 19 (citing Article 20(3) and 24(3) of the Convention). and the guardianship of minors.

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

at 5–8 (quoting Daniel Dulany. Patricia M. 49 (1979) (providing a collection of conflicting responses to the first book). 126 (Conn. These authors followed up their work with another similar work. 33 A.104 and attempted to swing back the pendulum toward a more balanced approach to parents and their children. at 22. at 1480–81.100 sought to question the BIC standard with new promulgations of the psychological parent. IN THE BEST INTERESTS OF THE CHILD 3–9 (Free Press 1986). Szentes. IN THE BEST INTERESTS OF THE CHILD. An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child. supra note 54. the Law of Reason and the revealed Law of God” essentially to a customary usage of natural law principles. supra note 101. J. THE RIGHT OF THE INHABITANTS OF MARYLAND TO THE BENEFIT OF THE ENGLISH LAWS (1728) in ST. to offer countervailing evidence or to know upon what evidence the decision would be made.103 and seemed to build an attitude in the law that completely focused on children.106 The colonial revolutionary generation was influenced by their commitment to common law doctrines that conformed “the Law of Nature. 1477. at 18–20. and in making [these findings] availed himself of his personal knowledge. 107 Id. at 1477. SUOISSANT. 1478 (1988) (reviewing IN THE BEST INTERESTS OF THE CHILD). G. It revolutionized child custody. he became an unsworn witness to material facts without the [parties] having any opportunity to cross-examine. 105 Wald. made of himself a witness.. 102 Id. departing from JOSEPH GOLDSTEIN ET AL.107 Post-revolutionary American jurisprudence demonstrated a legitimacy of statutes by individual sovereign states coexisting with common law principles.108 Gaining a distinctly American flavor. 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. 106 Kovacs v. L.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. BEYOND THE BEST INTERESTS OF THE CHILD 3–8 (Free Press 1974).” 109 This legal transformation is often scorned as a “two-edged sword” that judges used to mold legal doctrine and policy.. which also had an impact on family law. 109 Id. 102 the book brought social science and expert testimony powerfully into the judicial decision-making process. seemingly to the disregard of parents and the protection they naturally confer upon children. THE ENGLISH STATUTES IN MARYLAND 82 (1903)).2d 124. The Kindness of Strangers. suggesting a positivist path to broad judicial discretion where courts deemed the law to be what they said it was. 101 100 . 1943). Wald. In effect the trial judge. 103 See Richard Crouch. as a basis for [his]findings. 13 FAM.2008] BEST INTERESTS OF THE CHILD 97 INTERESTS OF THE CHILD. Q. 97 YALE L. 108 HOROWITZ. 104 JOSEPH GOLDSTEIN ET AL.101 Referring more to psychoanalytic theory regardless of the substantive laws or rules which governed custody. The volume had a strong impact on judges and lawyers alike.

Lord Mansfield was a pivotal actor clearing this path among the King’s Bench.98 JOURNAL OF LAW & FAMILY STUDIES [Vol. 114 (1789) 29 Eng. 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. but any decision regarding custody was left to the discretion of the judges. revelation to some extent for the welfare of a child. the father. at 276. Powel’s life. In Rex v. the court reviewed guardianship of a child and his inheritance. 113 (1774) 98 Eng. 112 (1763) 97 Eng. Powel. The case history that follows reveals that judicial discretion was not unbridled. 913. Cleaver. 10 English judgments. Mr. Rep.110 All of this occurred in the context of developing judicial and statutory state law.113 Fifteen years later another court of the King’s Bench was concerned for a child’s best interests. Rep. at 23–27. The facts are clearly stated in the record. 115 Id. but adhering. In 1789 in Powel v.114 a case most accurately described as a probate matter. “according to the circumstances that shall appear before them. and at the expence of Mr. Mansfield allowed the child to remain with its mother based on the public’s concern for the education of the child. CASE LAW IN PROGRESSION The birth and development of western child law jurisprudence began in the late 1700s and early 1800s.B. which was taken to task by considering concerns for the child. based in revelation and universal moral concepts integrated into American family law jurisprudence. That law needed to be at least trifled with. at least loosely. Eventually codified.115 110 111 Id.”112 In competing custody claims in Blisset’s Case in 1774. An absent father had allowed the testator to care for and support his son until the death of the testator.). England’s court documents record several cases dealing with matters that brought into question the legal rules regarding children and their worth and value. 914 (K. . to natural law principles embedded in the common law. 899 (K. if not realigned with. thus doing what was best for the child. Basing that realignment on judicial discretion developed a strong legal doctrine in the best interests of the child. permitted the children to be brought up by. 274 (Ch. 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.111 Among the rules questioned was that of absolute paternal authority. 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. Devall in 1763. Roberts.). the BIC standard was often presumed and given very loose statutory guidance. See infra notes 112–114.). during Mr. Rep.B. III. at which time the father reappeared to claim guardianship of the child along with the child’s legacy left to him by the testator. but wisely employed in the development of the BIC standard.

Roberts shall be in the hands of Mr. to the foundations of that legal standard nonetheless. Powel’s disposition of the guardianship. it appeared in Powel that the best interests of the child heir prevailed over any parental authority. at 283. I do not see how the Court can gratify Mr. at 540. Blisset’s and Powel were sparks for British courts to use a new standard of welfare for children. Mr. where by so insisting on that right against the condition of a legacy to them.”119 Thus. Roberts by suffering him to resist Mr. at 277. 119 Id. that the authority of a parent as guardian to his children cannot be transferred except by abuse of the authority. 117 Id. 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. unless it shall be the Court’s opinion. as it assisted the decline of the unfettered absolute rights of parents. Such being the case.120 Because Powel occurred outside a custody context. the provision for his support. Roberts. “It is quite settled. 64). or his social status. The maintenance to the eldest son is given. however. 116 Id. the court distinguished this case from the absolute paternal authority of parent over child by considering the competing interests of parent and child and the parent’s rights in the context of a child’s provision of wealth. Roberts has himself taken benefit under the will of Mr. 118 Id. 121 GROSSBERG. the testator. Powel.. regardless of the child’s interests Since Mr. It has merit. Powel. It is material. to consider whether a parent can insist upon his full right of guardianship. . 120 The court’s powers to change guardianship for parental unfitness were also clearly stated. on the condition.” Id. Id. to care for and raise his son. under circumstances. Id. Mr. and further distinctions made in this case from that of parent and child. Roberts permits the guardianship to be with the executors. they were quickly doused in 1804 by blanket judicial reinforcement of the paternal preference.118 The Chancellor noted that “he would not allow the colour of parental authority to work the ruin of his child. Furthermore. .” 116 In determining the outcome. the court ruled strictly in terms of a finding that would not bring detriment to the child. but altogether remove the child from his influence if he is a depraved person. 10 Ves. C. 63. had willingly allowed Mr.121 If Devall.117 With much discussion of satisfaction of legacy and other probate terms. that the Court will not only control a father in the management and the possession of his child. such legacy may be forfeited. The will expressly directs. it is not generally considered when discussing the foundations of the best interests of the child as a legal standard. that Mr. . The father. 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. at 276 (citing Lord Eldon. expressly. that the guardianship of the three sons of Mr. Powel’s death. Power’s executors. supra note 4.2008] 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. at 237.

at 249. ACAD. the court had no problem removing the child from the mother’s care and giving custody to the father.) 33 (1809). but that was merely an appearance. AM. with whom he lived in open adultery.” Id. html.hitory. there is a tribunal wherein the error can be redressed. It seemed that courts in England were using common law rules to foster a best interests standard. the court was incensed by the injustice of the paternal rule as applied to these facts. 17 L.” Joanne Ross Wilder. supra note 63.2/wright. 4 S. Prather. An extremely thorough examination of the De Manneville case is contained in Danaya C.122 Despite the fact that it might be best for a nursing infant child of eleven months to remain with his mother. & HIST. in the historic case of De Manneville v. De Manneville. Across the Atlantic Ocean.”123 De Manneville clarified and emphasized that a British court cannot interfere with a father’s right to his child. Id. 247 (2006). of whatever age. if he chooses. (1804) 102 Eng. as a matter of law. 126 Prather v. REV. supra note 124.). At most. 212 (2002).org/journals/lhr/17. Wright.124 Any trend set out in Powel was negligible in De Manneville. 10 or needs. L. .B. De Manneville: Rethinking the Birth of Custody Law under Patriarchy. belongs to the father. 211.126 Though fearful of defying the authority of the common law. Rep. 764 (Ch. Although the courts. 18 J. Coverture is the concept that “mother and children were under cover of the husband/father. 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. available at http://www. by resisting the adoption of a best interests standard.127 That court’s opinion did not use language setting forth the child’s best interests as the legal standard for its decision. but the court was clearly disturbed that the father’s actions were not those that warranted a court 122 (1804) 32 Eng.cooperative. at 259. “[T]he Court is apprised that it is treading on new and dangerous grounds. 123 (1804) 32 Eng. At the same time. paid lip service to a “best interests of the child” doctrine in the early nineteenth century. 127 Id. at 250. 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. “The law is clear. which included a version of the “tender years” doctrine. “Subsequent English cases ignored the best interests principle altogether and confined the ruling in Blisset’s Case to its facts. as parens patriae. 1054 (K. Eq. Id. 125 “The court at no time considered the interests of the child. MATRIM. See also King v. and he reigned supreme. 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. De Manneville. De Manneville v. (4 Des. The best interests test was not codified until 1925 as the principal criterion for making custodial awards. at 44. at 248–49.100 JOURNAL OF LAW & FAMILY STUDIES [Vol. 762.” Id. Asserting that the maternal presumption took hold in the jurisprudence by the end of the nineteenth century. at 247–49. rationalizing that the responsibility of enforcing the common law was to be passed on to higher courts than itself. In 1809. 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. divorce. but feels a consolation in the reflection that if it errs. 124 Id. or forfeiture.). Desau. Religion and Best Interests in Custody Cases. 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.C.125 and certainly did not pertain to a custody dispute between mother and father. the best interests language was used as a façade for coverture. at 338. Rep. however. the jurisprudence was forming much differently. that the custody of a child. 762 (Ch.” Klaff.” Id. the difficulty of reconciling paternal and maternal rights prevented significant reform for many years.” Wright.). the law promoted the maintenance of strong patriarchal hierarchies in many nineteenth-century marriages. Rep.

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

that the children should be delivered to their father. if not in actual practice. The court had used the most ardent common law rule of paternal preference and pitted it against the developing doctrine of tender years.141 obligation of the marriage contract.”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. (finding paternal custody in best interests of the child when the mother had committed a prior bad act. at 342. regardless of the tender years doctrine). tender years and best interests. supra note 125. at 213. when we decide for one. in happiness or in misery.138 In step with the concept of determining what was best for the children. but the latter offers much more discretionary latitude. why it was that they were separated from their mother. at 212. Arguing that the tender years doctrine presented a maternal preference that could be easily overcome by the mother’s unfitness. Id. supra note 63. they will be taught. Wilder argues that a mother’s adultery was the kiss of death to any authentic best interests analysis. combining such an analysis with its own discretion. and the education of the next three years will probably be decisive of her fate. unless dissolved by the law of the country. in sickness or in health. the court ended its inquiry with the mother’s adultery. child-focused. by inspiring them with fixed principles on this essential article. I am of opinion. and to fortify their minds. that in good fortune or in bad. For these reasons. Id.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. 138 Id. more 136 135 . “[I]t is important that the sisters should not be separated.”140 Indeed. It is the more incumbent on us. the marriage contract. 137 See generally id. 139 Id. but they soon will’ and when they inquire. 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. therefore. Id. “a view which was theoretically. to guard the children against the consequences of this pernicious mistake. at 340–41 (arguing that the two doctrines. see also Klaff. were first introduced in Addicks). “Even at its genesis. Id. the court clearly believed that particularly the eldest child was of a critical age to learn morality. 349–53 (demonstrating through case history analysis that the tender years presumption is generally overcome with a showing of the mother’s unfitness. therefore. 10 in the face of a change of custody to the father for the girls’ “future welfare. taking into account an easier transition for the children.” Id. 140 Wilder. to ultimately determine what would work to the greatest welfare of the children. they may not reflect on the subject.”136 Addicks appears to be the first use of the best interests of the child as a legal standard. supra note 63.102 JOURNAL OF LAW & FAMILY STUDIES [Vol. as far as our opinions can teach them.139 Some scholars argue that Addicks presents the concept of the best interests of the child as a rationale for the tender years doctrine. we must decide for both. Even with this caution. … Although the mother claimed that the father was abusive. 141 Klaff. and many others which it is unnecessary to mention. is sacred and inviolable.” Id. At the present moment. the best interests of the child doctrine was misleadingly cast [in Addicks]. particularly in adultery. the court made it absolutely clear that part of that which was best for the children was that the siblings not be separated.” Id. the tender years presumption is encased in the best interests standard. in that “every moment is important.

Green. the law presuming it to be for its interests to be under the nurture and care of his natural protector. (2 Cranch) 520 (1824). at 31–32. and to withdraw him from other persons. it will look into all the circumstances. Id. at 32. 143 the court’s ruling relied heavily on De Manneville and completely adhered to common law principles of paternal parental rights. it will also consult its personal wishes. 143 Id. but for the benefit of the infant. as far as possible. 144 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. parental duty with reference to its welfare. The court cited several other cases in agreement. permanent interests of the infant and if the infant be of sufficient discretion.B. 142 (1824) 9 Moore 278.147 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. Blisset’s case is decision to shew. and endeavour. continued to hold strictly to the paternal preference rule again in 1824. Id. 145 2 D. The court here used its discretion in applying the common law rules alone. . Clearly. When.148 The court proclaimed that its own discretion was the basis for proper application of particularly her adultery).C. both for maintenance and education. at 279–80. Simultaneously. therefore. De Manneville ruled the day. As to the question of the right of the father to have the custody of his infant child. But this is not on account of any absolute right of the father. but not absolute when circumstances endangered the child.). at 31.145 Upon the motion of the father asserting his paternal rights by law. 278 (K. and one opposing opinion: Independently of these authorities. however.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. 146 Id. and ascertain whether it will be for the real. in a general sense it is true. 147 Id. and it be of too tender years to choose for itself. at 282.”146 Parents’ rights to protect children were inalienable. 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.144 There was no discussion of how the child’s welfare might be affected by the adulterous convict father’s rights. 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. the Court of King’s Bench has a discretionary power to assign the custody of the child to a third person. It will free it from all undue restraint. that if the father appear to be an improper person to have the custody of his child. and a “wide discussion arose as to the right of the father to have the custody of the infant under the circumstances of the case. the court is asked to lend its aid to put the infant into the custody of the father. to administer a conscientious. 148 Id. the court saw an obligation to look at all the facts at issue in determining the proper application of that right.2008] BEST INTERESTS OF THE CHILD 103 English courts. no trend towards a new legal standard for children was established by Powel or any other case in Great Britain’s courts.

”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 the father brought a habeas corpus writ to the court to reclaim the custody of his children. supra note 125. that he succeeded in a three year campaign to reform the law which ended in the British Parliament 149 . Rep. The court there thought it for the interest of the child to give the custody to the father. the writ of habeas corpus. and all action upon it.” Id.) 203.). Wales Briggs. at 213. Upon review of the facts and circumstances. nor had the mother filed for divorce. Id. the court did not find the father intemperate nor unfit.” Id. but a purpose for applying the existing rules regarding children. asserting that the holding in De Manneville “supposes its existence. 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). at 213. and relying on both De Manneville and Addicks. As a general rule. 10 common law rules. 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.”153 In the 1839 case of Rex v. the good of the child is to be regarded as the predominant consideration. 151 Id. 922 (K. Interestingly. King’s Bench judges were reluctant to depart from precedent and contravene the father’s right to custody even in a very compelling case. in directing which all the circumstances are to be taken into consideration. 155 Wilder. supra note 125. This ruling so appalled a lawyer in the case. Lord Talfourd. the court saw no alternative to granting custody of the children to their father. a mother took her children from the marital home where the father had moved in his paramour.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. are governed by the judicial discretion of the Court. 922. is a strong reason why the child should not be restored to her. Greenhill.152 The best interest of the child as a legal standard was not a new rule. In the case of a child of tender years. 149 The best interest of the child as a legal standard was gaining momentum by judicial discretion. 152 Id. Massachusetts followed suit in Commonwealth v. The Briggs court saw the best interests standard as inherent in the legal rights vested in parents. The court saw that the unjustifiable family separation was not good for the child. 150 33 Mass. 205 (1834).” 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. In 1834. 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. when it declared “the good of the child is to be regarded as the predominant consideration. 153 Wilder. (16 Pick.104 JOURNAL OF LAW & FAMILY STUDIES [Vol. This case likened American judicial discretion to English authority of the king. or that the latter has an absolute vested right in the custody. “Unlike the American courts. as parens patriae. The same could not be said of England. 154 (1836) 111 Eng.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. the court even cited De Manneville as not inconsistent with that doctrine.B. (citing the traditional common law rules of paternal preference and coverture.

does not come in conflict with or subvert any of the principles of the natural law. . By the law of nature. That legislation became known as Lord Talfourd’s Act: An Act to Amend the Law as to the Custody of Infants. that by the law of nature. and of a delicate and sickly habit. to consult the welfare.). The moment a child is born. at 257 (emphasis in original).Y. Id.156 The trial court had applied a pure paternal preference finding custody of the baby girl in the father. The court set out very clearly that it was applying the best interest standard. There is no parental authority independent of the supreme power of the state. it follows that the custody of infant children must always be regulated by judicial discretion. . . a New York court in Mercein v. The view the court had of its responsibility as parens patriae is worthy of repeating here. and most likely to the harm of children and women as well. is that which is stated by Thompson. it owes allegiance to the government of the country of its birth. 54. 156 25 Wend. . 1839. to such custody. when the infant is of tender age. and is entitled to the protection of that government. Because the father had agreed to leave the infant with its mother and she returned to her own father’s household. and in entirely or partially depriving him of it in cases where the interests and welfare of his child require it. the nascent standard for children was setting deep roots. 157 Id..2008] BEST INTERESTS OF THE CHILD 105 paternal presumption to their own discredit. Id. . such custody will not be transferred to the father by the process of habeas corpus. viz: “It is the benefit and welfare of the infant to which the attention of the court ought principally to be directed. peculiarly requiring a mother’s care and attention. Id. exercised in reference to their best interests. 343–44 (Eng. the father has no paramount right to the custody of his child. Id. comfort and interests of such child in regulating its custody during the period of its minority.” As a necessary result of this principle.” Id. This is the predominant question which is to be considered by the court or tribunal before whom the infant is brought. 2 & 3 Vict. 158 Id. based upon an apparent application of the tender years presumption being better for the child. intermarried in the city of New-York. in the case of the claim made by the father. It seems then. In the civil state there is no inequality between the father and mother. 64 (N. Ch. [T]he great principle which runs through nearly all the American and the earlier English cases. at 240 (emphasis in original). The rights of the parents must in all cases yield to the interests and welfare of the infant. But the former is derived altogether from the latter. 418. c. 13 Johns. And such government is obligated by its duty of protection. . at 213–14.157 The court was very clear as to the standard it felt it should apply. 1840). . a year later in America. . but upon review that decision was reversed. and the father has left an infant child in the custody of its mother. . J. [then a few sentences regarding the importance of tender years]. [W]hen the parents live apart under a voluntary separation.”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. the father has no paramount inalienable right to the custody of his child. . And some civil or municipal law in setting bounds to his parental authority. Meanwhile. at 257. In 1840. in the mater of Waldron. even though he was “then being a subject of the king of Great Britain. Barry laid out the conundrum that these conflicting legal rules brewed. when speaking of the custody of the infant. at 241. “The interest of the infant is deemed paramount to the claims of both parents. the court would not remove custody of the child to his father.

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. This is the matter in dispute. as it rises superior to money considerations. the controversy is between the father and mother of an infant daughter. even above. and each claiming the right to the custody.106 JOURNAL OF LAW & FAMILY STUDIES [Vol. English courts seriously began to apply rules designed to work for the protection of children.”161 Distinguishing a child’s welfare from a child’s liberty interest. 164 In Anonymous. 162 Id. Mercein was upheld in the federal circuit court for the Southern District of New York. Mercein. but of its custody and nurture. Mercein placed a crowning culmination on early American jurisprudence regarding children.S. It is not in substance at all that great writ of English or American liberty. Barry v.) 103 (1847). based on what the court deemed in the children’s best interest. peaked its credibility. The language in Mercein can seem intimidating and broad. but a great extension.162 the legal standard regarding children was that all parties and their respective rights.” Id. .159 Reviewed again in the Supreme Court of the United States seven years later. supra note 57. Green. at 116. the Court noted that family matters were outside. even when a father was acquitted of a crime. After this series of American decisions regarding children.000. In the case before us. the Court recognized that there was no legal reason to grant a writ of habeas. And it is evidently utterly incapable of being reduced to any pecuniary standard of value. at 120. For example. They are living separate from each other. and society of their child. 161 Id. he was denied custody of his children. particularly parents in their parental rights. however. Id. 164 Anonymous (1851) 61 Eng. nor had they jurisdiction to change the ruling. 46 U. and begun its decline toward the greatest concern over the best interests standard itself—judicial overreach abridging inalienable parent rights. if not entire perversion. “It is not a question of the personal liberty of the child. in 1851 rather than purely and legalistically deferring to the paternal preference. (5 How.160 The High Court took the opportunity. 10 development refined out of earlier English law. Indeed. 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. a clergy father of six left his home and was charged and apprehended Id. of its object.163 Addicks. to recognize and affirm the duty of the state courts “to make such orders as will be for the benefit of the child. care. 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. Maybe it reflects yet another natural law—the State as the supreme arbiter of all relationships. . the jurisdiction of the Supreme Court of the United States and reviewable as defined by act of Congress only when the dispute exceeds $2. 160 159 . . 260 (Ch. at 116. were under an obligation to act in the best interests of the child. Rep. Before the middle of the 1800s.).” Mercer. but also (even unwittingly) began setting children as adversaries against their parents. 163 “[T]he viewpoint reflected in this quotation perhaps is not a utilitarian one. at 20.

it is the paramount duty of the Court to do so for the protection of the children themselves. at 62. because they associate with him. Today throughout the United States. 384 (1869). at 151–52. 165 . Baird demonstrates how solid the BIC standard was becoming in American family law by 1869. O’BRIEN. Id. 168 MASS.”165 The best interests of the children trumped the father’s rights to custody. at 152. GEN. 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. GEN. 167 Post. It set the tone for adoption statutes in the rest of the country. LAWS ANN. firmly based in the best interests of the child.”166 Another area of law regarding children took an immediate and radical departure from a basic concept of Roman law. WALTER WADLINGTON & RAYMOND D. AMERICAN LAWYERS IN A CHANGING SOCIETY 119 (1976) (citation omitted). supra note 167. When the Court refuses to give possession of his children to the father. the Massachusetts Legislature codified the parents’ rights as they related to the best interests standard in 1855.170 Evidencing momentum for the new doctrine regarding children’s interests. at 63–64.J. in the absence of misconduct. ch. LAWS ANN.S. 324 § 752 (West 1854). Eq. 2 Sim.169 Thus began the American concept of adoption. and the happiness and welfare of the children are to determine the care and custody. but no witnesses appearing he was acquitted. see also WADLINGTON & O’BRIEN. 169 See MASS. are equal. “[T]hat were any communication known to exist between the said children and their father. see also WADLINGTON & O’BRIEN. 171 Reprinted in MAXWELL H. Id. Post. at 198. at 198 (noting that adoption’s objective was to benefit minor children in need of parents). 2 BISHOP ON MARRIAGE 444 (1873). “for the protection of the children themselves. For example. supra note 69. 172 21 N. 172 Saddened by the court’s intrusion into the “private household” and reviewing the facts.” Id. at 198. 166 Anonymous is also reprinted in JOEL BISHOP. (N. FAMILY LAW IN PERSPECTIVE 198 (2001).” as one charged with such a heinous (yet unnamed) crime. “‘[T]he rights of the parents to their children. 170 WADLINGTON & O’BRIEN. When the father returned to reclaim custody of his children. 324 § 752.168 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. adoption is child centered rather than adult centered in every State’s codified adoption laws. they would be wholly excluded from respectable society. the court noted that its ruling was based on “its general jurisdiction over the interests of Id. supra note 167. Justinian was adopted by his uncle so he could become emperor of Rome. supra note 69.2008] BEST INTERESTS OF THE CHILD 107 “for the commission of an unnatural crime.167 The first adoption law in the United States was endorsed in Massachusetts in 1851. 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. BLOOMFIELD. Post argues that Christianity and its virtues were what caused this change in adoption tradition to favor what was best for the child.’”171 The New Jersey case of Baird v. ch. supra note 167. in that the primary concern for the welfare of the child was reflected in American adoption statutory law. at 54.) at 69. other persons will shun their society.

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

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

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

Nebraska194 and Pierce v. Ex Parte Reed. supra note 4.196 Increased judicial discretion in cases regarding children affected numerous families. 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. 401–03 (1923) (finding parents a have right to direct the upbringing of children. 510.. 19 S.197 Much of the law regarding children started to become known as ‘child welfare reform.199 Paternal preference completely gave way in late 1890s to the presumption that children need their mothers more (than fathers) in tender years. *1 (S.’ and was boosted by the rise of the first family court in Buffalo.2008] BEST INTERESTS OF THE CHILD 111 rationale. e. even to learn German language in the post WWI era). supra note 62. 193 For a very thorough overview of cases that considered a child’s wishes as a factor in awarding (or denying) custody see D. which could only be overcome by evidence of 192 See. Nachtwey. 534–35 (1925) (finding parents have a right to direct the education of children. This tender years presumption prevailed in many jurisdictions where laws were established stating that mothers were presumptively entitled to custody. 199 WARDLE & NOLAN. which includes the choice for private religious education).3d 1396 (originally published in 1965).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. 1883) (noting that the wishes of the child were disregarded as contrary to the child’s best interests). 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. . at 283. New York in 1909.L. 390. 4 A. Society of Sisters. IN WHOSE BEST INTEREST?: CHILD WELFARE REFORM IN THE PROGRESSIVE ERA 160 (1982). 200 Id. 194 262 U. 196 321 U.C.195 it was limited in Prince v. 604.S. 158.W. O’Neill. 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. 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. 198 SUSAN TIFFIN. at 858–89. 43 Iowa 653 (Iowa 1876) (same).193 The use of rights for children tended to posture their interests against those of their parents. Child’s Wishes as Factor in Awarding Custody. Though parents’ rights to direct the upbringing of their children were affirmed in Meyer v.S.g.200 This presumption.R. 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. 195 268 U. which the court found in violation of child labor laws). Massachusetts. S. Shaw v. setting the trend for a family court system in each state jurisdiction. 197 GROSSBERG.C. 198 Also based on this review.

208 406 U. 398 So. Ex parte Devine. 208 Constitutional concerns over gender equality then entered the scene. Ct. Courts ruled that there could be no preference or presumption based on gender. Gault recognized a child’s right to procedural (due process) safeguards. at 25.112 JOURNAL OF LAW & FAMILY STUDIES [Vol. L.” Id. 210 Oregon’s statutory and case law on custody provide a good example. 206 Id. REV. 204 Mercer. Ethical Intuitionism.D. Ct. when equal protection clause claims of gender preference brought about the initial demise of the tender years doctrine. 164 (Robert Dewey & Robert Hurlbutt III eds. at 7. Blessing the Tie that Binds: Preference for the Primary Caretaker as Custodian. App. 572 P. or “intuition. This case recognized the primary care-giving parent (regardless of gender). 202 SUZANNE RAMOS. 1977). 207 GUGGENHEIM.137(4) 201 .206 “The Court attacked juvenile court as an institution established to help children but which rarely met its lofty purposes. 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. STAT. 387 U.210 Remnants of Cf. 697 (Ala.C.209 This primary caretaker presumption abolished all gender based presumptions for custody. 1977). App. 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). supra note 57. in AN INTRODUCTION TO ETHICS 161. Ewing.205 The most important children’s rights case in American history. 481.137(3) (1981) (no preference for mother over father) and OR.2d 562. however.2d 1080 (Or. 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”). 209 See generally Marcia O’Kelly.”203 “A judge’s intuition is a judges’ discretion to decide. “In sum. 205 In re Gault. REV. 2d 686. Derby. 10 unfitness. 63 N. 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.S.202 The court was often the final arbiter on what it took to raise responsible citizens. modified on other grounds. as the primary caretaker presumption was shaped by Derby v. §107. §107. and those decisions rested on pure discretion. STAT. 1977). 71–72 (1967). It apparently and cleverly led to a movement for children’s rights. supra note 1. but also meant the continued broadening of the state’s interests in its future citizens. The rule was later codified as a presumption at OR. continued to be the law in many jurisdictions until the 1980s. 1.S.201 Making custody decisions based on children’s needs often meant keeping kids with their mothers.”204 This type of jurisprudence pushed the best interests standard to be so completely dependent on judicial discretion. the best interests standard could be viewed as a form of ethical egoism—serving the greatest good of the State. REV. 205–06 (1972). 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. 564 (Or. were then reaffirmed in Wisconsin v.. THE COMPLETE BOOK OF CHILD CUSTODY 35 (1979). 571 P. 203 See A. Yoder. 205.” 207 Parents’ rights. independent of the parties’ wishes or the dictate of a pre-ordained law.

Oregon incorporated interdisciplinary knowledge of child development. . 1007 (Conn. 214 See. Hollon v.. 784 So. DETERMINING THE BEST INTERESTS OF THE CHILD: SUMMARY OF STATE LAWS passim (July 2005). 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. REV. Raymon Zapata. and listed factors with guidelines. e. A parent cannot be deprived unless some affirmative reason is shown for doing so such as a finding.3 (1994).2008] BEST INTERESTS OF THE CHILD 113 the tender years doctrine. Seymour. 211 See. W. The New York case of Bennett v. Jeffreys ruled that both the BIC and parents’ rights are to safeguard stability and continuity for children. 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). CODE § 20-124. 212 See.g. “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. MARTHA ALBERTSON FINEMAN.2d 1005.’ the Legislature did not intend to disregard the ties between the child and its natural parent. OF HEALTH & HUMAN SERVS. 213 See generally CHILD WELFARE INFORMATION GATEWAY.S. even if only a refrain. 213 Statutes of individual states are sometimes criticized for the same reasons that the BIC standard is disparaged. THE NEUTERED MOTHER. 861 (Mass.2d 854. and other U. Child Custody in Texas and the Best Interest Standard: In the Best Interest of Whom? 6 SCHOLAR 197. THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 12–28. The Connecticut Supreme Court defended that state’s codification of the best interest standard despite the clear guidelines in Seymour v.E. e. pdf (summarizing the Best Interest of The Child laws in all 50 states. STAT. 1975).212 Yet the best interest of the child doctrine remains the standard legal doctrine.214 Attempts to balance codification of the BIC standard and case law with parental rights are evident in some cases.216 (1994) (no preference for father over mother). Hollon. 947 (Miss. e. The free reign of judicial discretion in the name of the best interests of the child led to some states codifying their standards. in which a preference for maternal custody is considered merely a factor along with other evidence hearing on the child’s best interests). . 216 In re New England Home for Little Wanderers.g.S.211 and this doctrine is fostered ardently by some feminist family law scholars. 433 A. OR. however. 2001) (reaffirming a weakened version of the tender years doctrine. or by listing guidelines and factors to be considered. available at http://www.E. 203 (2003) (discussing the application of Texas’ statute and how factors listed in the statue fail to be analyzed in some high profile cases). at 1007. VA. CODE § 48-2-15 (1980). DEPT. Statutory codification of the BIC standard occurred in West Virginia in 1980 with an initial draft of a BIC definition (but with no guidelines). individualized adjudication of the particular facts of each case without the constraint of objective guidelines. jurisdictions) [hereinafter SUMMARY OF STATE LAWS].childwelfare. § 107. 328 N.” Id. 2d 943.. (1981). either by defining the standard.. 176–93 (2002). VA. of a separation so long as to permit very strong bonds to develop between the child and the prospective adoptive parents.215 In invoking the ‘best interests of the child. or to threaten a satisfactory family with loss of children because by reason of temporary adversity they are placed in foster care. or using both techniques. U. 1980) (listing factors the court considered in determining the BIC which were followed in case law thereafter). W. 215 356 N.g. 283 (N. do continue today.2d 277..

every state has a statute requiring that the child’s best interests be considered whenever decisions regarding a child’s placement are made. L. WARDLE. 218 217 . 8 (H. in PROVIDING CIVIL JUSTICE FOR CHILDREN 8. yet application of the standard has been. 220 BREEN.law2. subjecting the interests For a listing of each state’s code. supra note 39.221 Others agree with this assessment. even calling the best interests principle “unjust. custody decisions are based on short hearings (if any testimony). 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. “Courts may be in the poorest position of all to know what the facts are. http://www.219 calling the notion “idealistic. but grounded in the principles set out in Section I. where the problems lie. supra note 213. Nonetheless. Louisiana has provided a statutory answer that codifies the best interest application to fertilized ovum. Id. CUSTODY PRESUMPTIONS 3. See Fotini Antonia Skouvakis. the state’s sometimes hazy role as parens patriae. supra note 62. that discretion is not arbitrary. 2006).217 The foundations of the BIC doctrine show how important this standard is to American family law.”220 Mnookin argues that not only is there no consensus on what is ‘best.” BREEN. self-defeating. “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. Defining the Undefined: Using a Best Interests Approach to Decide the Fate of Cryopreserved Preembryos in Pennsylvania. STAT. ST. REV. and remains. § 453 (2003)). 109 PENN.218 Not all family law scholars are convinced that the BIC standard is the best way to decide legal matters regarding children. Szwed. as the court always will lack all the information necessary to make an objective decision.htm (last visited May 22. virtuous. 885.byu. Szwed. at 890 (noting also that New Jersey is the only other state that has proposed. but in many cases is required to sort out the law in light of the facts. at 863–64. see SUMMARY OF STATE LAWS.” and a high sounding self-deception requiring “a highly individualized choice between alternatives. with heavy reliance on paid experts. 10 Today.’ but the ability to predict what judicial ruling will produce the best results for children is never actually possible. Even new reproductive technology is demanding a legal standard by which to determine the fate of frozen embryos. 219 See generally ROBERT MNOOKIN. but not passed. 1983)). supra note 39. IN THE INTERESTS OF CHILDREN 517–27 (1985). Great latitude in judicial discretion is not only allowed by these conflicts. THE BIC STANDARD. and the lack of definition and guidelines have all leant to the difficulty of applying the BIC standard. Judicial discretion does indeed afford flexibility. at 86. Geach & E. at 54 (citing Robert Mnookin & E. CONS. a similar statute). The Best Interests Syndrome and the Allocation of Power in Child Care. APPLICATION (OR NOT) OF THE LEGAL FOUNDATIONS The conflict of rights between parents and children.” neglecting the rights and needs of parents. the spectrum of judicial discretion. nor capricious. nor unlimited. and sought to be applied in the cases outlined in Section II. 221 WARDLE & NOLAN.114 JOURNAL OF LAW & FAMILY STUDIES [Vol. 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.” LYNN D.. eds.

but appreciates the dynamics of a BIC analysis as part of its very strength. 785 (2004) (showing statistics that report a persistence of a maternal preference among family court judges). particularly when third parties fight parents for custody. Defining the Best Interest of Children: Parents v. CHICAGO L. some judges maintain a firm belief in biologically driven gender differences in parenting abilities and openly admit that this belief may affect their decisions. 1. Artis. many judges view parenting in gender terms.” Id. 224 364 A. 225 See Julie E. 223 BREEN.”225 This school of thought argues that the BIC standard benefits mothers. . thereby creating a “no fault” adoption system). e. An approach such as this would allow for the reconstruction of any erroneous interpretation of the message contained in the tradition of best interests. 566. it is suggested. which.228 The outcome in some circumstances has been a reinterpretation of the best interests of the child standard. and generally leaving children worse off. 38 LAW & SOC’Y REV. as “many judges equate the child’s best interests with mother custody. 54 UNIV. 7 (1987). at 24. 1976). . JON ELSTER. 769. 228 A Connecticut court pronounced this problem more than six decades ago: . For example.”224 Furthermore.g. ‘New beginnings’ are possible for best interests.222 Historical family law scholar Claire Breen deems the BIC standard as important not only to the foundations of the jurisprudence surrounding children. App. [T]he best interests standard may be described as a strand of tradition. 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. 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. 601–02 (Md.J. the child. 567–71 (1991) (discussing how courts in Illinois are giving the BIC standard increasing deference over traditional biological preferences in custody disputes. 226 Id. REV. 227 See H. Joseph Gitlin. Solomonic Judgements: Against the Best Interests of the Child. in the 1976 Maryland case of Ross v. “So even though the child custody law is gender-neutral. Judging the Best Interests of the Child: Judges’ Accounts of the Tender Years Doctrine.227 or when judges are left on their own to decide the matter. 79 ILL B. SOLOMONIC JUDGEMENTS: STUDIES IN THE LIMITATIONS OF RATIONALITY 123–29 (1989).”226 The problem is the BIC standard is supposed to benefit children. Ct. Others in Custody Proceedings. at 799.2008] BEST INTERESTS OF THE CHILD 115 of children to policy considerations. Spec. The present child-centered doctrine has its problems. especially if the child is an infant.. before forfeiting the judicially espoused presumptive shield provided a natural parent. Jon Elster. It has been used to justify trends toward joint 222 See.223 The naturally human limit of any judge is a point of contention that fosters criticism for BIC rulings. 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. 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.2d 596. supra note 39.

even knee-jerk response that you are masking your true. supra note 39. it is apparent that judges and jurists were working hard to balance universal moral law with welfare of children. The State as Parent. and the jurisdiction which the judge exercises is the jurisdiction of the court.232 Some courts have tried to bridle and limit judicial discretion.. The danger arises when the dicta of the BIC doctrine is “used to justify any decision reached. and it was closely linked with the BIC standard as a façade for judicial positivism.”230 The ethics of judicial discretion continue to be a concern of family law scholars.233 Scholars have attempted to make reforms to the judicial application of the BIC standard by harnessing and directing a core set of factors. the court noted that: An individual judge (as distinguished from a court) is not empowered to retain jurisdiction of a cause. The cause is before the court. to offer countervailing evidence or to know upon what evidence the decision would be made. 413 (Cal. . at 731–32. 881 (Cal. Mercer. . not the individual judge of that court. 233 In re Marriage of Matthews. 323 P. 389. in CONFLICT AND CONSENSUS IN MODERN AMERICAN HISTORY 257. 1980) (stating that a judge goes beyond his power to limit all future proceedings to be brought before him only). Szentes. 879. 1943). motives. The Ethics of Judicial Decision-Making Regarding the Custody of Minor Children: Looking at the “Best Interests of the Child” and the “Primary Caretaker” Standard as Utility Rules. 231 See generally Kathryn L. supra note 7. 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. 392 (1997) (examining how a judge’s ethical framework influences custody awards under the BIC standard).2d 124. supra note 57. he became an unsworn witness to material facts without the [parties] having any opportunity to crossexamine. App. They understood that children are best protected by parents who have the inalienable right to do so. 1958). 232 People v. 1980).2d 397. 234 See BREEN. Osslo. 33 IDAHO L. 230 Mercer. at 45.234 In effect. as a basis for [his] findings. which is in turn dependent upon the . 5th ed. 161 Cal. David J. 126 (Conn. Woodman eds. made of himself a witness. Rothman. not of the judge. twisting a standard for children to serve adults. and in making [these findings] availed himself of his personal knowledge. To characterize this transformation in summary fashion. 33 A. REV. Kpovacs 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. Rules of court which provide that posttrial proceedings in a cause shall be heard by the judge who tried the matter are entirely proper. the trial [judge]. even with an abusive parent and genetic surrogate rights. self-interested. This model of the State as parent was rejected by conservatives and liberals alike in the 1970s.229 In the two hundred years of American family law jurisprudence traced here. Ct. and that parents are the truest protectors of their child’s best interests.231 In People v. 229 Carbone. 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. Davis & Harold D. . 264 (Allen F. Rptr. 10 custody. but the individual judge cannot order that such proceedings must be heard by him. Osslo. at 31 (emphasis in the original).116 JOURNAL OF LAW & FAMILY STUDIES [Vol.

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

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

supra note 212. working to strengthen marriage as a social institution. 264–68 (1995) (addressing the problem from the Roman Catholic tradition in placing responsibility for children on parents. Id. parental rights. In fact. 247 Carbone. 246 245 .g. 246 In reviewing Mary Ann Mason’s historical work on custody standards. 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. 250 MARY ANN GLENDON. see also Hafen supra note 99. and our present responsibility in stewardship. It remains a serious legal apprehension that the data shows a failure of child formation in families.”250 These concerns have had serious negative implications for children and their welfare. Duncan proposes that we focus on the family unit by enforcing parental rights without jeopardizing the necessary protections granted to children. 248 Id. and the father’s rights approach to “replace marriage with conception as the defining element of parenthood”).245 Protection of children by parents is thereby diminished. 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. THE TRANSFORMATION OF FAMILY LAW 102–03 (1989). Harvard law professor Mary Ann Glendon serves now on the Council on Families in America. in individual cases.. 252 Id. at 733. at 273–74. 251 See generally Todd David Whitmore. a hope for the future. supra note 93. supra note 93.251 To respond to the needs of family formation in America the law and society must see that “children are gifts of creation. at 732–37. at 1242. e. at 1244. 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. conceive of ways to improve the lot of a particular child. See Carbone. and the well being of children is naturally affected. SOC’Y CHRISTIAN ETHICS 263.. Whitmore proffers that this thinking is already a part of the Catholic tradition and merely needs to be taught and implemented in developed detail. which by its nature cannot love. and presenting various studies supporting the assertion that parents are spending too little time with their children to form adequate relationships). 253 In his dissent in Ex parte G. at 733–35 (opposing Martha Fineman’s mother/child dyad promoted in her book THE NEUTERED MOTHER.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. supra note 7.”248 and makes a case for marriage being essential to a child’s best interests. See also Duncan.”252 Responsibility for children lies with parents first. See. at 733. and judges later if parents abdicate their God-given roles. Justice Parker states his judicial view of this fact. the best interests of children are served by the state’s declining to interfere with family government merely because its agents can. rather than children’s rights which work to the detriment of the family upon which the child’s best interests rely.253 The ultimate goal of the best interests standard is Id. at 1290–94. I believe the best interests of a child are served by strengthening the state’s acknowledgment of. holding firm to the best interest of the child standard. Consequently. Carbone. Children and the Problem of Formation in American Families. Professor June Carbone suggests that legislators and judges and the rest of society have struggled to settle on a set of operating norms for litigation regarding children. Duncan. and deference to. supra note 7. at 274. supra note 7. at 732–34.C. 15 ANN.

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

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