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

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

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

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

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

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

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

“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. “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. KETT. important to the economy of a growing nation. but instead were deemed to have interests of their own. and thus.”67 The legal and social status of the child was transformed during the first century of the new republic. the culturally reinforced idea that mothers should get custody of young children. The best interests standard was the American WARDLE & NOLAN. supra note 6. in particular. (citing JOSEPH F. at 858– 59. the state with its welfare and utilitarian concerns. this is not the only interpretation that may be accorded to the standard as inevitably the principle of the best interests of the child varies from region to region and from culture to culture. at 148.2008] BEST INTERESTS OF THE CHILD 91 of the Best Interest of the Child standard. they were apprentices thereafter.” Id. Most youth were incorporated fully into the work force by age fifteen. from the relationship of dependency which existed between the biological parents and their offspring. Children were regarded primarily as revenue-generating property during the infancy of the United States. supra note 57. 68 MASON. it was nevertheless relentless. “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. it is more likely that an American influence in the English jurisprudence allowed the western development of the BIC standard. “Admittedly.”65 The common law was brought to America with the colonists and continued to be the basis of American law.”66 Children were still part of the American family economy. under the complete control of their fathers or masters. Parents farmed their children out between the ages of seven and fourteen. Rather. and the fact that most mothers personally assumed custody of their children without a contest. at 45. at 44. Professors Wardle and Nolan explain the variations of the presumption. at 15. who were no longer legally akin to servants. While the transformation came slowly in contrast to the fast pace of political events or economic development. Id. emotional view of children. The colonial view of children as helping hands in a labor-scarce economy gave way to a romantic. 64 . “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. concern for the best interests of children was most apparent in the development of adoption law in America. Natural law arguments in favor of parental authority and parents’ rights prevailed during the founding period of the new world. supra note 39. 66 Id. 67 Mercer. at 50. The stakeholders at this point were the child as an emerging adult. RITES OF PASSAGE 18 (1977)).68 More particularly. 65 BREEN.”69 This provided a formidable wave of jurisprudence regarding children. and the father. Id.

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. Colonial concern for the child in need of a family gave rise to philanthropy. 223 (1943)). setting a completely new standard. 151 (Spring 1997) (discussing the Christian tradition in adoption). “In contrast to Roman law. 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. Post argues that this adoption tradition favoring what was best for the child over what the family wanted is grounded in Christian tradition. 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. and set the standard which the world now follows. Interstate Succession by and from the Adopted Child. which have been prominent in Jewish religious identity’. L.. Kuhlman.’”70 This was in direct contrast to adoption in England which still followed Roman legal concepts of adoption focused on purposes of inheritance. at 151 (citing Fred L. American law sought to ‘establish an institution to ameliorate the condition of the neglected and dependent child. 25 J. Q. civilian.92 JOURNAL OF LAW & FAMILY STUDIES [Vol. rather than a child for a family. at 337. Such a childhood was to be found only in the bound of a family.73 The solution to this and to the general problem of street children was to turn the delinquent once more into a child. at 41 (citing CUNNINGHAM. 221. 28 WASH. 71 Id.The child was gradually to be restored to the true position of childhood by being placed within a family. or a substitute family. at 152. 73 BREEN. and common law approaches. RELIG. which emphasized adoption as a means of establishing family heirs. supra note 39.72 A uniquely American blend of antiquity.” Id. "This primary focus on the welfare of children without families distinguished American adoption from the classic Roman. ETHICS 149. 69 . at 135–36). “Our statutes. Inheritance rights were only incidentally considered. intended for custody determinations of only the very Stephen G. Citing John Boswell’s The Kindness of Strangers. 74 Id. . which in turn gave way to state action to rescue children from the street. . at 151–52. Post. 70 Id. Adoption Theologically Considered. the Chancellor Lord Talfourd promoted the earliest “tender years” doctrine. “Christianity ‘discounted the importance of lineage and descent. This solution was an internalisation of the Romantic belief that a proper childhood was the only foundation for a tolerable adult life. supra note 62. 72 See WARDLE & NOLAN. Thus. at 41. 10 framework of adoption. By the nineteenth century this American blend flavored all actions toward children. therefore.74 Meanwhile in England." Id. from delinquency. Christianity and socio-legal reforms were forming an entirely new basis for family law development in the new world. from work and unfair labor. 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.” Id. supra note 52. U. upon which the child would depend for protection.

MASON. at xiii. which meant that children needed state protection. a duality existed between the growing state intervention and the laissez-faire approach to private family maintenance. supra note 39. I. at 160). intervene to promote the development of good citizens. combined with a natural law foundation and the American development of and emphasis on a best interests approach. 17 LAW & HIST. . 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. and in 1840 Jeremy Bentham sought to organize the country’s laws to place the general good above that of the individual. it has already strength and passions. .with recognition to be accorded to the special needs and characteristics of the child. that of its intellectual faculties is still slower. a fresh jurisprudence regarding children developed in the West. REV. supra note 15. as well as those children suffering from the effects of the Kelly. with a presumption in favor of mothers as the more nurturing parent. Jordan. 77 1 JEREMY BENTHAM. 309. by 1850. at 50. which as yet does nothing for itself.2008] BEST INTERESTS OF THE CHILD 93 youngest of children75 and largely viewed as a product of natural law.78 This has led many family law scholars to view the BIC standard as a nineteenth century tradition. 78 Mercer. . at 43. . Michael Grossberg. from 1790 to 1890. THEORY OF LEGISLATION. supra note 39. 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. 312 (Summer 1999). after the end of the colonial period. In the first hundred years of the new republic. 79 See BREEN. VOL. 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. at 122.”80 Concern for child welfare in the late 1800s included illegitimate children. The feebleness of infancy demands a continual protection. MASON. The changing status of women… was a critical factor in this transformation.”). & Co. 80 BREEN. MASON. Thus. see also Mercer. at xiii. Everything must be done for an imperfect being.77 Out of this utilitarian jurisprudence that transformed much of England’s law on children. supra note 52. The complete development of its physical powers takes many years. 248 (R. supra note 39. at 19. without experience enough to regulate them. At a certain age. Hildreth trans. . such a being must be kept under an authority more immediate than that of the laws.” 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. 76 75 . supra note 6. See generally BREEN. supra note 6. supra note 57. supra note 57. Weeks. Who Determines Children’s Best Interests?. and should. Too sensitive to present impulses..76 Utilitarianism had a continued influence in British family law. He argued for reforms based on the common good. supra note 6. too negligent of the future.79 Throughout the nineteenth and into the twentieth century reformers and philanthropists became “deeply imbued with the Romantic belief that childhood should be happy…. This influenced the law regarding children. 1840). at 42 (citing CUNNINGHAM.

eds.html. at least for a growing class of parents. 84 83 . at 43. 10 industrial revolution. Juvenile Corrections Facilities: Is There Any Room for the Isolation Room. It is this child which has provided the norm by which the standard of the best interests of the child has been measured. the corrupt child. n. but juvenile justice jurisprudence as well. Bird.01. However. in LEGAL ADVOCACY FOR CHILDREN AND YOUTH: REFORM. 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. from arrest to disposition. supra note 39.”82 Over the eighteenth and nineteenth centuries the best interests of the child became a part of not only American family law jurisprudence. 2006). which has been the true object of the best interests standard. however. 85 John R. increasingly entrenching the BIC concept as a permanent fixture in family law. at 20. at 30. and is applied to the extent that the child is not transferred to adult criminal courts. although the innocent child may provide the measurement of best interests. 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. Yale-New Haven Teachers ulum/units/1994/1/94. “Everything done during the course of a juvenile court proceeding. It is this state that the best interests standard seeks to attain for the ‘Other’ child.86 Twentieth century jurists continued the development of the doctrine in case law across the nation. 34–42. Id. 86 Luis Recalde. see also BREEN. the law presumed that children fourteen years old or older had the same criminal capacity as adults and. supra note 39. available at http://www. supra note 6. it is the ‘Other’.”85 Others. BREEN. is ostensibly being done with the best interests of the child in mind. disagree that there is ever a good application of the best interests standard in the juvenile justice system. Finally. were always liable for their criminal offenses. child labor needs were less urgent.81 “The ‘best interests of the child’ slowly developed as a legal concern in the new republic. 1986). AND CONTEMPORARY ISSUES 175. To What Extent is the Application of Family Law in the Best Interests of Children? (May 22. enhanced by the romanticization of their mothers. The juvenile justice criminal system in America. at 206.. “The rights of the child were first brought together in one internationally 81 82 MASON. TRENDS.26 (citing WILLIAM BLACKSTONE.94 JOURNAL OF LAW & FAMILY STUDIES [Vol.yale. COMMENTARIES ON THE LAWS OF ENGLAND). Id. rather than circumscribing the best interests of the child. and children were assigned an emotional value. Id.83 Often the picture of the child as innocent and deserving protection continues to exist alongside common law rules as to the criminal responsibility of children. Id. consequently.x.. 176 (Howard Davidson & Robert Horowitz. at 47. The ideal of the innocent Romantic child has continued to represent and define our perceptions of the child over the last two centuries. The BIC standard began to spread internationally during the twentieth century. The Romantic child already exists in a state of nirvana. essentially rested on the tradition of best interests standard.05. when.84 Scholars in this area of child law generally claim that the basis for juvenile justice is grounded in the BIC standard.

Breen notes the undercurrent of cultural relativism that flows through the Convention on the Rights of the Child. although paternalistic in nature. as reprinted in. This latter tradition concerning the rights of parents ultimately gave way to the standard of the best interests of the child. fostering. and the guardianship of minors. at 77 (citing Declaration of the Rights of the Child. Id. As the tradition of paternal supremacy waned. 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). supra note 39. W. L.2008] BEST INTERESTS OF THE CHILD 95 recognized text in 1924. “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. 88 BREEN. a tradition which.R. supra note 39. supra note 6. children’s rights grew and 87 BREEN. showing somewhat of a tolerance for practices prejudicial to the health of children. THE RIGHTS OF THE CHILD AND THE CHANGING IMAGE OF CHILDHOOD 444 (Martinus Nijhoff Publishers. 92 MASON.”). supra note 39.88 This was the triumph of a uniquely American concept adopted by a global community of persons concerned for children’s welfare. 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.”89 Indeed.’ the latter being a non-governmental body based in Geneva. at 16. supra note 39.87 These BIC traditions originated in western law. INT’L. 1992)) (“The view that children were the (now valuable) property of their parents remained well into the nineteenth century. 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.91 A tension developed between notions of protectionism and autonomy in regards to children’s rights.J. clearly a clash of legal ideals and social traditions.” Id. at 25 (adding the enshrining of the family in the Irish Constitution as in conflict with the best interests standard). Failure to uphold the best interests standard is vividly displayed by the practice of female genital mutilation in many African nations. 193. adoption. Levesque. at 43 (citing R.92 From the BIC doctrine. The rights based approach has attempted to determine the appropriateness of according rights to children whereby varying degrees of autonomy are granted to children. SAVE THE CHILDREN ITALY. J.” 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. at 16.E. Id. creating a new area of law—that of children’s rights. 197 (1994)). 90 The doctrine has had a global impact. but were universally promulgated through the United Nations Convention on the Rights of the Child. In . 90 ELENA ROZZI. at 19 (citing Article 20(3) and 24(3) of the Convention). International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic Policy. “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. at 148. Id. 91 See BREEN. 24 CAL. 89 Id. BREEN. was based upon a greater degree of interventionism into family life. the BIC standard has become critical in evaluating custody decisions in repatriation cases. at 67. P. but also an impact on the legal evolution of the jurisprudence generally surrounding matters regarding the disposition and future of children. VEERMAN.

but instead sought to probe tangled fact situations to discover the best interests of an individual child. State v. As deeply as I’ve always thought of myself as a children’s advocate. the welfare argument has called for a protectionist approach towards children. Id. Abandoning Children to Their Rights. at 5–11. I continue to identify myself as a children’s advocate while rejecting much of what falls under the rubric of children’s rights. A landmark book built on the development of BIC jurisprudence written by a lawyer. 1976 BYU L. Hafen. 656. 97 MASON. The Ultimate Best Interest of the Child Enures from Parental Reinforcement: The Journey to Family Integrity. at x. CHILDREN’S RIGHTS: CONTEMPORARY PERSPECTIVES 40 (Patricia A. supra note 93. 523 (1843).. Hafen. and out of that jurisprudence arose ardent support for children to be vested with rights of their own. 605. Bruce C. Id.” which offered practical rather than legally correct results.. at 59–60 (citing for an example of the loose judicial discretion. much of what I read and hear being advocated in furtherance of children’s rights seems to me misguided. REV. of being deemed capable to undertand his or her own rights. 99 See Bruce C. “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.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. who self-identifies as a child advocate is quite validly concerned over the falsity and manipulation of children’s rights.g. 55 FIRST THINGS 18 (Aug/Sept. BEYOND THE BEST contrast to the rights-based approach. Hafen & Jonathan O. supra note 1. 96 GUGGENHEIM. at 1244. ROBERT A.96 JOURNAL OF LAW & FAMILY STUDIES [Vol. supra note 1. 1995) (arguing that child autonomy claims are most often for the benefit of adults rather than children). creating an extreme chasm between children and their parents by presenting these rights in direct conflict with one another. REV. possibly joining the best interests bandwagon). BURT. 83 NEB.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. they almost invariable have done so in the best interests of the child. 1244 (2005). 93 . And yet. 1240.98 and this has become a core point in the scholarship against children’s rights.96 From this movement rose the more subtle and insipid rampage of judicial discretion. where the judge departed from established precedent in that state and used his own judicial discretion in determining the custody outcome. 10 developed..”95 Out of this forged autonomy rose the children’s rights movement of the 1960s. 95 Duncan. Payne. 94 See. 98 GUGGENHEIM. Children’s Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to Their Rights. an example of which has already been seen in the academic debate surrounding the standard of the best interests of the child. John C. a social scientist researcher and a child psychologist. “As courts and legislators have created newly recognized rights of children. supra note 6. Duncan. Brody eds.99 Social science has simultaneously gained respect and credibility in the legal determinations surrounding children and families in mid twentieth century family law. 23 Tenn.”93 Many believe this is the wrong direction if society is genuinely concerned about children’s best interests. Vardin & Ilene N. L. even Professor Guggenheim. Indeed. e. 1979) (arguing that the state is manifestly inadequate to protect children and affording children rights does not solve that problem). Jr.

made of himself a witness. The Kindness of Strangers. he became an unsworn witness to material facts without the [parties] having any opportunity to cross-examine. J. 108 HOROWITZ.” 109 This legal transformation is often scorned as a “two-edged sword” that judges used to mold legal doctrine and policy.107 Post-revolutionary American jurisprudence demonstrated a legitimacy of statutes by individual sovereign states coexisting with common law principles. seemingly to the disregard of parents and the protection they naturally confer upon children. at 1477. It revolutionized child custody. 49 (1979) (providing a collection of conflicting responses to the first book). as a basis for [his]findings. to offer countervailing evidence or to know upon what evidence the decision would be made. at 22. 1478 (1988) (reviewing IN THE BEST INTERESTS OF THE CHILD). 101 100 . 106 Kovacs v.2008] BEST INTERESTS OF THE CHILD 97 INTERESTS OF THE CHILD. L. supra note 54. at 1480–81. In effect the trial judge.104 and attempted to swing back the pendulum toward a more balanced approach to parents and their children. An Essay on the Critical and Judicial Reception of Beyond the Best Interests of the Child.. the Law of Reason and the revealed Law of God” essentially to a customary usage of natural law principles. THE ENGLISH STATUTES IN MARYLAND 82 (1903)). 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.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.. supra note 101. These authors followed up their work with another similar work. 126 (Conn. G. THE RIGHT OF THE INHABITANTS OF MARYLAND TO THE BENEFIT OF THE ENGLISH LAWS (1728) in ST. at 5–8 (quoting Daniel Dulany. IN THE BEST INTERESTS OF THE CHILD 3–9 (Free Press 1986). 104 JOSEPH GOLDSTEIN ET AL. suggesting a positivist path to broad judicial discretion where courts deemed the law to be what they said it was. 102 the book brought social science and expert testimony powerfully into the judicial decision-making process. departing from JOSEPH GOLDSTEIN ET AL.2d 124. Wald. The volume had a strong impact on judges and lawyers alike. which also had an impact on family law.106 The colonial revolutionary generation was influenced by their commitment to common law doctrines that conformed “the Law of Nature. 105 Wald. and in making [these findings] availed himself of his personal knowledge. 1477. 97 YALE L. 109 Id.100 sought to question the BIC standard with new promulgations of the psychological parent. 13 FAM. 103 See Richard Crouch. BEYOND THE BEST INTERESTS OF THE CHILD 3–8 (Free Press 1974).101 Referring more to psychoanalytic theory regardless of the substantive laws or rules which governed custody. IN THE BEST INTERESTS OF THE CHILD. 1943). Q. Patricia M. at 18–20. Szentes. SUOISSANT. 107 Id.108 Gaining a distinctly American flavor. 102 Id.103 and seemed to build an attitude in the law that completely focused on children. 33 A.

).”112 In competing custody claims in Blisset’s Case in 1774.). 914 (K. and at the expence of Mr. The facts are clearly stated in the record. revelation to some extent for the welfare of a child. Roberts. at which time the father reappeared to claim guardianship of the child along with the child’s legacy left to him by the testator.111 Among the rules questioned was that of absolute paternal authority. 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. 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. Cleaver. permitted the children to be brought up by. but adhering. Eventually codified. Mr. CASE LAW IN PROGRESSION The birth and development of western child law jurisprudence began in the late 1700s and early 1800s. In 1789 in Powel v. Rep. An absent father had allowed the testator to care for and support his son until the death of the testator. 114 (1789) 29 Eng.113 Fifteen years later another court of the King’s Bench was concerned for a child’s best interests. Mansfield allowed the child to remain with its mother based on the public’s concern for the education of the child. Powel’s life. thus doing what was best for the child. to natural law principles embedded in the common law. 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. the BIC standard was often presumed and given very loose statutory guidance. 913. Rep. 113 (1774) 98 Eng. at 23–27.115 110 111 Id. See infra notes 112–114.110 All of this occurred in the context of developing judicial and statutory state law.98 JOURNAL OF LAW & FAMILY STUDIES [Vol.B. 115 Id. That law needed to be at least trifled with.). 10 English judgments. the court reviewed guardianship of a child and his inheritance. but any decision regarding custody was left to the discretion of the judges. 274 (Ch. at 276. The case history that follows reveals that judicial discretion was not unbridled. Powel. during Mr. Lord Mansfield was a pivotal actor clearing this path among the King’s Bench. based in revelation and universal moral concepts integrated into American family law jurisprudence. Rep.114 a case most accurately described as a probate matter. Devall in 1763. 112 (1763) 97 Eng. if not realigned with. III. which was taken to task by considering concerns for the child. . In Rex v.B. England’s court documents record several cases dealing with matters that brought into question the legal rules regarding children and their worth and value. Basing that realignment on judicial discretion developed a strong legal doctrine in the best interests of the child. “according to the circumstances that shall appear before them. the father. 899 (K. but wisely employed in the development of the BIC standard. at least loosely.

the court ruled strictly in terms of a finding that would not bring detriment to the child.118 The Chancellor noted that “he would not allow the colour of parental authority to work the ruin of his child. the testator. I do not see how the Court can gratify Mr. Roberts by suffering him to resist Mr. . at 276 (citing Lord Eldon. Roberts has himself taken benefit under the will of Mr. Mr. at 237. . where by so insisting on that right against the condition of a legacy to them. 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. 10 Ves. Power’s executors. Roberts. “It is quite settled. Blisset’s and Powel were sparks for British courts to use a new standard of welfare for children. at 277.117 With much discussion of satisfaction of legacy and other probate terms.120 Because Powel occurred outside a custody context.. had willingly allowed Mr. that Mr. 116 Id.”119 Thus. 118 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. Such being the case. Powel’s death. as it assisted the decline of the unfettered absolute rights of parents. The maintenance to the eldest son is given. but altogether remove the child from his influence if he is a depraved person.121 If Devall. Roberts shall be in the hands of Mr. It has merit. or his social status. The father. supra note 4. expressly. at 283. it appeared in Powel that the best interests of the child heir prevailed over any parental authority. Powel. it is not generally considered when discussing the foundations of the best interests of the child as a legal standard. 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. 64). Powel. that the Court will not only control a father in the management and the possession of his child. to consider whether a parent can insist upon his full right of guardianship. that the authority of a parent as guardian to his children cannot be transferred except by abuse of the authority. and further distinctions made in this case from that of parent and child.” Id. at 540. such legacy may be forfeited. 119 Id. Id. Furthermore. 117 Id. 120 The court’s powers to change guardianship for parental unfitness were also clearly stated. to care for and raise his son. It is material. however.” 116 In determining the outcome. 121 GROSSBERG. C. the provision for his support. unless it shall be the Court’s opinion. Id. under circumstances. regardless of the child’s interests Since Mr. on the condition. Mr. 63. . The will expressly directs.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. Powel’s disposition of the guardianship. to the foundations of that legal standard nonetheless. they were quickly doused in 1804 by blanket judicial reinforcement of the paternal preference. Roberts permits the guardianship to be with the executors. that the guardianship of the three sons of Mr.

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. 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.125 and certainly did not pertain to a custody dispute between mother and father.124 Any trend set out in Powel was negligible in De Manneville. AM. Coverture is the concept that “mother and children were under cover of the husband/father. 126 Prather v. Rep. MATRIM. paid lip service to a “best interests of the child” doctrine in the early nineteenth century. the best interests language was used as a façade for coverture. “Subsequent English cases ignored the best interests principle altogether and confined the ruling in Blisset’s Case to its facts. Across the Atlantic Ocean. 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.”123 De Manneville clarified and emphasized that a British court cannot interfere with a father’s right to his child. supra note 124. 247 (2006). Religion and Best Interests in Custody Cases. In 1809. De Manneville. by resisting the adoption of a best interests standard.hitory.) 33 (1809).).). at 247–49. The best interests test was not codified until 1925 as the principal criterion for making custodial awards. Id. 4 S. It seemed that courts in England were using common law rules to foster a best interests standard. as a matter of law. De Manneville v. 764 (Ch. (1804) 102 Eng.100 JOURNAL OF LAW & FAMILY STUDIES [Vol. 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.” Id. . Rep.” Joanne Ross Wilder.” Id. Desau. in the historic case of De Manneville v. 125 “The court at no time considered the interests of the child. rationalizing that the responsibility of enforcing the common law was to be passed on to higher courts than itself. Asserting that the maternal presumption took hold in the jurisprudence by the end of the nineteenth century. 18 J. however. Eq. (4 Des. the jurisprudence was forming much differently. but the court was clearly disturbed that the father’s actions were not those that warranted a court 122 (1804) 32 Eng. Although the courts.” Klaff. Rep. at 250. the difficulty of reconciling paternal and maternal rights prevented significant reform for many years. 762.cooperative. supra note 63. 1054 (K. or forfeiture. but that was merely an appearance. REV. as parens patriae. there is a tribunal wherein the error can be redressed. Wright. at 248–49. 123 (1804) 32 Eng. which included a version of the “tender years” doctrine. De Manneville. 762 (Ch. 10 or needs.). At most. 212 (2002).127 That court’s opinion did not use language setting forth the child’s best interests as the legal standard for its decision. at 259. 124 Id.” Wright.122 Despite the fact that it might be best for a nursing infant child of eleven months to remain with his mother. the court had no problem removing the child from the mother’s care and giving custody to the father. with whom he lived in open adultery. available at http://www. 17 L.2/wright. Id. divorce. if he chooses. Prather. 127 Id. belongs to the father. See also King v. that the custody of a child. the court was incensed by the injustice of the paternal rule as applied to these facts.” Id.126 Though fearful of defying the authority of the common law. at 44. An extremely thorough examination of the De Manneville case is contained in Danaya C. L. 211.B. the law promoted the maintenance of strong patriarchal hierarchies in many nineteenth-century marriages. “The law is clear. At the same time. at 338. and he reigned supreme. & HIST. at 249. “[T]he Court is apprised that it is treading on new and dangerous grounds. of whatever age.C. 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. but feels a consolation in the reflection that if it errs. ACAD. De Manneville: Rethinking the Birth of Custody Law under Patriarchy.

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

in sickness or in health. Even with this caution. in happiness or in misery. to guard the children against the consequences of this pernicious mistake. Arguing that the tender years doctrine presented a maternal preference that could be easily overcome by the mother’s unfitness.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. 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. that the children should be delivered to their father. and the education of the next three years will probably be decisive of her fate. I am of opinion. the court made it absolutely clear that part of that which was best for the children was that the siblings not be separated. they will be taught. combining such an analysis with its own discretion. but they soon will’ and when they inquire. at 342. is sacred and inviolable. … Although the mother claimed that the father was abusive. Id. regardless of the tender years doctrine).”140 Indeed. 10 in the face of a change of custody to the father for the girls’ “future welfare. by inspiring them with fixed principles on this essential article. therefore. and to fortify their minds. unless dissolved by the law of the country.” Id. “[I]t is important that the sisters should not be separated. At the present moment. the court clearly believed that particularly the eldest child was of a critical age to learn morality. Wilder argues that a mother’s adultery was the kiss of death to any authentic best interests analysis. Id. at 340–41 (arguing that the two doctrines.”136 Addicks appears to be the first use of the best interests of the child as a legal standard. but the latter offers much more discretionary latitude. the tender years presumption is encased in the best interests standard. 141 Klaff. 140 Wilder. were first introduced in Addicks). to ultimately determine what would work to the greatest welfare of the children. that in good fortune or in bad. the best interests of the child doctrine was misleadingly cast [in Addicks]. why it was that they were separated from their mother. supra note 63. the court ended its inquiry with the mother’s adultery. For these reasons. more 136 135 . It is the more incumbent on us. we must decide for both. “a view which was theoretically. when we decide for one. 349–53 (demonstrating through case history analysis that the tender years presumption is generally overcome with a showing of the mother’s unfitness. 137 See generally id.102 JOURNAL OF LAW & FAMILY STUDIES [Vol. at 212.141 obligation of the marriage contract. see also Klaff. tender years and best interests. 138 Id. The court had used the most ardent common law rule of paternal preference and pitted it against the developing doctrine of tender years. (finding paternal custody in best interests of the child when the mother had committed a prior bad act. 139 Id. “Even at its genesis. Id. therefore. the marriage contract.” Id. they may not reflect on the subject.138 In step with the concept of determining what was best for the children. in that “every moment is important. and many others which it is unnecessary to mention. child-focused.139 Some scholars argue that Addicks presents the concept of the best interests of the child as a rationale for the tender years doctrine.”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. Id. at 213. particularly in adultery. supra note 63. supra note 125.” Id. taking into account an easier transition for the children. as far as our opinions can teach them. if not in actual practice.

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. to administer a conscientious. 144 Id. It will free it from all undue restraint. The court cited several other cases in agreement. Id. at 32.C. 278 (K. the Court of King’s Bench has a discretionary power to assign the custody of the child to a third person. Clearly. at 31–32. it will look into all the circumstances. . and to withdraw him from other persons. 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.B. continued to hold strictly to the paternal preference rule again in 1824. at 31. that if the father appear to be an improper person to have the custody of his child.). (2 Cranch) 520 (1824). 145 2 D. but for the benefit of the infant.148 The court proclaimed that its own discretion was the basis for proper application of particularly her adultery). at 282. however. But this is not on account of any absolute right of the father. the court is asked to lend its aid to put the infant into the custody of the father. 143 Id. at 279–80. 148 Id. When. 146 Id. in a general sense it is true. permanent interests of the infant and if the infant be of sufficient discretion. De Manneville ruled the day. Blisset’s case is decision to shew.145 Upon the motion of the father asserting his paternal rights by law. no trend towards a new legal standard for children was established by Powel or any other case in Great Britain’s courts. Simultaneously.144 There was no discussion of how the child’s welfare might be affected by the adulterous convict father’s rights. Green. therefore.2008] BEST INTERESTS OF THE CHILD 103 English courts.”146 Parents’ rights to protect children were inalienable. both for maintenance and education. but not absolute when circumstances endangered the child. parental duty with reference to its welfare. The court here used its discretion in applying the common law rules alone. and one opposing opinion: Independently of these authorities. Id. As to the question of the right of the father to have the custody of his infant child. 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.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. and it be of too tender years to choose for itself. 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. and ascertain whether it will be for the real. the court saw an obligation to look at all the facts at issue in determining the proper application of that right. 142 (1824) 9 Moore 278.142 After a discussion of guardianship by parens patriae resting in the King’s Bench to have jurisdiction to control the right of the father to the possession of his child. the law presuming it to be for its interests to be under the nurture and care of his natural protector. it will also consult its personal wishes. and endeavour. 143 the court’s ruling relied heavily on De Manneville and completely adhered to common law principles of paternal parental rights. as far as possible. 147 Id.

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

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

and society of their child. It is not in substance at all that great writ of English or American liberty. Before the middle of the 1800s. the Court recognized that there was no legal reason to grant a writ of habeas. at 20.106 JOURNAL OF LAW & FAMILY STUDIES [Vol. but also (even unwittingly) began setting children as adversaries against their parents. Mercein was upheld in the federal circuit court for the Southern District of New York. 46 U. . Id. to recognize and affirm the duty of the state courts “to make such orders as will be for the benefit of the child. . if not entire perversion. 160 159 . Maybe it reflects yet another natural law—the State as the supreme arbiter of all relationships. even above. “It is not a question of the personal liberty of the child. English courts seriously began to apply rules designed to work for the protection of children. For example. based on what the court deemed in the children’s best interest. the jurisdiction of the Supreme Court of the United States and reviewable as defined by act of Congress only when the dispute exceeds $2. as it rises superior to money considerations. . but a great extension. 10 development refined out of earlier English law. 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.162 the legal standard regarding children was that all parties and their respective rights. 260 (Ch. Green. were under an obligation to act in the best interests of the child.” Mercer. nor had they jurisdiction to change the ruling. Mercein. in 1851 rather than purely and legalistically deferring to the paternal preference.). however. 161 Id.” Id.163 Addicks. at 120.159 Reviewed again in the Supreme Court of the United States seven years later. Mercein placed a crowning culmination on early American jurisprudence regarding children. Barry v. Rep.”161 Distinguishing a child’s welfare from a child’s liberty interest. at 116. 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. at 116. The language in Mercein can seem intimidating and broad. of its object. the Court noted that family matters were outside. They are living separate from each other. 163 “[T]he viewpoint reflected in this quotation perhaps is not a utilitarian one. a clergy father of six left his home and was charged and apprehended Id. Indeed.000. (5 How. and begun its decline toward the greatest concern over the best interests standard itself—judicial overreach abridging inalienable parent rights. peaked its credibility. the controversy is between the father and mother of an infant daughter. 162 Id.160 The High Court took the opportunity.S.) 103 (1847). even when a father was acquitted of a crime. This is the matter in dispute. After this series of American decisions regarding children. supra note 57. but of its custody and nurture. And it is evidently utterly incapable of being reduced to any pecuniary standard of value. and each claiming the right to the custody. 164 In Anonymous. 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. 164 Anonymous (1851) 61 Eng. In the case before us. care. particularly parents in their parental rights. he was denied custody of his children.

’”171 The New Jersey case of Baird v.167 The first adoption law in the United States was endorsed in Massachusetts in 1851. the Massachusetts Legislature codified the parents’ rights as they related to the best interests standard in 1855.” as one charged with such a heinous (yet unnamed) crime. at 198 (noting that adoption’s objective was to benefit minor children in need of parents). adoption is child centered rather than adult centered in every State’s codified adoption laws. the court noted that its ruling was based on “its general jurisdiction over the interests of Id. (N. the court considered the positive qualifications of their mother in the care of the children and the negative reputation and social effects on the children due to “bearing the name of the said petitioner. When the father returned to reclaim custody of his children. GEN. at 63–64. supra note 167.”165 The best interests of the children trumped the father’s rights to custody. 172 Saddened by the court’s intrusion into the “private household” and reviewing the facts. FAMILY LAW IN PERSPECTIVE 198 (2001). in the absence of misconduct. supra note 69.”166 Another area of law regarding children took an immediate and radical departure from a basic concept of Roman law. 167 Post. 384 (1869). Id. they would be wholly excluded from respectable society. 171 Reprinted in MAXWELL H. WALTER WADLINGTON & RAYMOND D.S. at 54.” Id. at 198.) at 69. 170 WADLINGTON & O’BRIEN. Today throughout the United States. firmly based in the best interests of the child.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. ch. 172 21 N. at 152. supra note 167. LAWS ANN. it is the paramount duty of the Court to do so for the protection of the children themselves. GEN. at 151–52. 324 § 752 (West 1854). are equal. “for the protection of the children themselves. but no witnesses appearing he was acquitted. 2 BISHOP ON MARRIAGE 444 (1873).J. Eq. Id. Baird demonstrates how solid the BIC standard was becoming in American family law by 1869. 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.169 Thus began the American concept of adoption. ch. Post. 165 . supra note 69. Post argues that Christianity and its virtues were what caused this change in adoption tradition to favor what was best for the child. because they associate with him. at 198.2008] BEST INTERESTS OF THE CHILD 107 “for the commission of an unnatural crime. It set the tone for adoption statutes in the rest of the country. “‘[T]he rights of the parents to their children. 2 Sim. in that the primary concern for the welfare of the child was reflected in American adoption statutory law. Justinian was adopted by his uncle so he could become emperor of Rome. see also WADLINGTON & O’BRIEN. 169 See MASS. other persons will shun their society. LAWS ANN. at 62. For example. When the Court refuses to give possession of his children to the father. supra note 167. and the happiness and welfare of the children are to determine the care and custody. “[T]hat were any communication known to exist between the said children and their father. AMERICAN LAWYERS IN A CHANGING SOCIETY 119 (1976) (citation omitted). 324 § 752. O’BRIEN. see also WADLINGTON & O’BRIEN. 168 MASS. BLOOMFIELD.170 Evidencing momentum for the new doctrine regarding children’s interests. 166 Anonymous is also reprinted in JOEL BISHOP.

Turner.174 This decision was transparently based on the best interests standard. 68 TEMPLE L. REV. Id. See Theresa Glennon & Robert G. At common law the paternal presumption prevailed. Barbara Bennett Woodhouse. at 385. 355–70 (2005). Id. 1 (1967). 179 Tanenhaus. Foreword: Looking Back. *5 (1870). at 384. 23 L.175 In this court of equity. & MARY L. but the welfare of the child. 178 Rather than focus on a rights analysis. obviously. The legal right of the father will not be passed by. REV. 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). but was eventually overcome by the new standard courts were applying regarding the best interests of the child. On such an occasion it is not the dry. 995.176 A post-Civil War concept of rights of persons inured to children. 280. Id. 483 (1954). that the case must be determined.108 JOURNAL OF LAW & FAMILY STUDIES [Vol. and In re Gault. “Who Owns the Child?”: Meyer and Pierce and the Child as Property. even when his father had filed a writ of habeas challenging the boy’s confinement. It is upon this principle. 1559 (1995) (arguing that Brown v. The court’s effort to balance the competing rights is apparent in the opinion. in view of the best interests of the children. 177 For a thorough review and analysis of Turner see David S. 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.S. Still other scholars argue that substantive rights for children were not recognized until much later. Looking Ahead: The Evolution of Children’s Rights. Board of Education. but rather upholding its value. Needs of children as manifested in duties owed to them by adults is . REV. in the opinion of the court. 176 55 Ill. 179 This 173 174 Id. Tanenhaus. 347 U. were the first cases involving children’s rights). Between Dependency and Liberty: The Conundrum of Children’s Rights in the Gilded Age. it is felt to be one of painful responsibility. an appeal to the discretion of the court… In the present case.177 Though some scholars argue that it was with Turner that cases regarding children turned toward a rights approach. at least in dicta. strict law was not as important as the welfare of the child. Application of the BIC as a legal standard caused a strong dissent. O’Conner v. 387 U. at 370–79. 1557. 175 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. 10 infants. 33 WM. The application under such circumstances is.” 173 Not having abandoned the common law. 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. Remnants of that presumption continued in parts of American law. was deemed unconstitutional and not in the child’s welfare. the duty of arbitrating thus between the claims of these rival parents. others argue that the case and its progeny were an extension of judicial understanding of the needs of children. 178 Id. which will form the substantial basis of judgment. the well-being of the child requires such supersedure. Legislation in Illinois that allowed the imprisonment of a fourteen year old boy in a Chicago Reform School. supra note 177. the New Jersey court affirmed again that the paternal preference rule was subordinate to the best interests of the child. at *6. By 1870. & HIST. except when. therefore. the Illinois Supreme Court found guaranteed due process protection to children in the state’s constitution in People ex rel.S. Schwartz. technical right of the father. 351.

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

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

L.200 This presumption. setting the trend for a family court system in each state jurisdiction.. supra note 62. 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. Ex Parte Reed. 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. Massachusetts. even to learn German language in the post WWI era). Nebraska194 and Pierce v. 510. This tender years presumption prevailed in many jurisdictions where laws were established stating that mothers were presumptively entitled to custody. 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.R. IN WHOSE BEST INTEREST?: CHILD WELFARE REFORM IN THE PROGRESSIVE ERA 160 (1982). 194 262 U. Shaw v. 193 For a very thorough overview of cases that considered a child’s wishes as a factor in awarding (or denying) custody see D. O’Neill. 401–03 (1923) (finding parents a have right to direct the upbringing of children. New York in 1909. 196 321 U. which includes the choice for private religious education).2008] BEST INTERESTS OF THE CHILD 111 rationale. 198 SUSAN TIFFIN. Child’s Wishes as Factor in Awarding Custody.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.3d 1396 (originally published in 1965). *1 (S. supra note 4. 158. 200 Id. e. at 283.196 Increased judicial discretion in cases regarding children affected numerous families. which the court found in violation of child labor laws).197 Much of the law regarding children started to become known as ‘child welfare reform.’ and was boosted by the rise of the first family court in Buffalo. 197 GROSSBERG. S.W. Society of Sisters. 19 S. 198 Also based on this review. Though parents’ rights to direct the upbringing of their children were affirmed in Meyer v.C. 534–35 (1925) (finding parents have a right to direct the education of children.C. 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.193 The use of rights for children tended to posture their interests against those of their parents.S. 195 268 U. 604. 4 A. 199 WARDLE & NOLAN. which could only be overcome by evidence of 192 See. at 858–89. Nachtwey.195 it was limited in Prince v. 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. 390. . 1883) (noting that the wishes of the child were disregarded as contrary to the child’s best interests). 43 Iowa 653 (Iowa 1876) (same).S.g.199 Paternal preference completely gave way in late 1890s to the presumption that children need their mothers more (than fathers) in tender years.

205–06 (1972). 205 In re Gault. but also meant the continued broadening of the state’s interests in its future citizens. 398 So. 207 GUGGENHEIM. 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”). or “intuition. §107.. Ewing.2d 562. 10 unfitness. 387 U. §107. at 25.S. L. supra note 1.” Id.137(4) 201 . Ex parte Devine. 483–84 (1987) (discussing the significance of primary caretaking in North Dakota custody contests between two fit parents of children too young to express their own preference). 1977). and those decisions rested on pure discretion. and the concept of tender years was replaced with a presumption that afforded a custody award in divorce to the parent who was the primary caregiver to the child during the marriage.210 Remnants of Cf. The landmark decision finding constitutional rights for children came from the Supreme Court of the United States in 1967 in the case of In re Gault. as the primary caretaker presumption was shaped by Derby v. independent of the parties’ wishes or the dictate of a pre-ordained law. REV.”204 This type of jurisprudence pushed the best interests standard to be so completely dependent on judicial discretion. 697 (Ala. Blessing the Tie that Binds: Preference for the Primary Caretaker as Custodian. 204 Mercer.206 “The Court attacked juvenile court as an institution established to help children but which rarely met its lofty purposes. the best interests standard could be viewed as a form of ethical egoism—serving the greatest good of the State. It apparently and cleverly led to a movement for children’s rights. 1.201 Making custody decisions based on children’s needs often meant keeping kids with their mothers. Derby. continued to be the law in many jurisdictions until the 1980s. at 7. App.209 This primary caretaker presumption abolished all gender based presumptions for custody. 209 See generally Marcia O’Kelly.S. 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. 63 N. 2d 686. REV. Courts ruled that there could be no preference or presumption based on gender.D. Yoder. 205. THE COMPLETE BOOK OF CHILD CUSTODY 35 (1979). Ct. This case recognized the primary care-giving parent (regardless of gender). 564 (Or. Ethical Intuitionism. Ct. 1977).”203 “A judge’s intuition is a judges’ discretion to decide. STAT. 571 P. “In sum. when equal protection clause claims of gender preference brought about the initial demise of the tender years doctrine. however. REV.C. STAT. 202 SUZANNE RAMOS. supra note 57. 71–72 (1967). Gault recognized a child’s right to procedural (due process) safeguards. were then reaffirmed in Wisconsin v.137(3) (1981) (no preference for mother over father) and OR. App.2d 1080 (Or. 208 Constitutional concerns over gender equality then entered the scene. 203 See A.” 207 Parents’ rights. 572 P.112 JOURNAL OF LAW & FAMILY STUDIES [Vol. The rule was later codified as a presumption at OR. 481.202 The court was often the final arbiter on what it took to raise responsible citizens. 1977). 208 406 U. modified on other grounds. 210 Oregon’s statutory and case law on custody provide a good example.205 The most important children’s rights case in American history. 164 (Robert Dewey & Robert Hurlbutt III eds. in AN INTRODUCTION TO ETHICS 161. 206 Id.

Child Custody in Texas and the Best Interest Standard: In the Best Interest of Whom? 6 SCHOLAR 197.g. individualized adjudication of the particular facts of each case without the constraint of objective guidelines. § 107. 211 See. e. . “We continue to adhere to the view that the legislature was acting wisely in leaving the delicate and difficult process of fact-finding in family matters to flexible. The free reign of judicial discretion in the name of the best interests of the child led to some states codifying their standards.214 Attempts to balance codification of the BIC standard and case law with parental rights are evident in some cases. STAT. Jeffreys ruled that both the BIC and parents’ rights are to safeguard stability and continuity for children. even if only a refrain. and other U. 328 N. 203 (2003) (discussing the application of Texas’ statute and how factors listed in the statue fail to be analyzed in some high profile cases). Seymour. REV. VA. Hollon. Oregon incorporated interdisciplinary knowledge of child development. U. 2001) (reaffirming a weakened version of the tender years doctrine. 861 (Mass.’ the Legislature did not intend to disregard the ties between the child and its natural parent.2d 854. of a separation so long as to permit very strong bonds to develop between the child and the prospective adoptive parents. 1007 (Conn. 213 Statutes of individual states are sometimes criticized for the same reasons that the BIC standard is disparaged. 433 A.Y. 784 So.2008] BEST INTERESTS OF THE CHILD 113 the tender years doctrine. W. 283 (N.E.216 (1994) (no preference for father over mother). 216 In re New England Home for Little Wanderers.3 (1994). however. . jurisdictions) [hereinafter SUMMARY OF STATE LAWS]. OF HEALTH & HUMAN SERVS. VA.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.g. Raymon Zapata.2d 277. THE NEUTERED MOTHER.g. Statutory codification of the BIC standard occurred in West Virginia in 1980 with an initial draft of a BIC definition (but with no guidelines). 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.. 213 See generally CHILD WELFARE INFORMATION GATEWAY. 212 See. pdf (summarizing the Best Interest of The Child laws in all 50 states. do continue today. OR. DETERMINING THE BEST INTERESTS OF THE CHILD: SUMMARY OF STATE LAWS passim (July 2005). 214 See. either by defining the standard.S. available at http://www.137 (1981). or using both techniques. The Connecticut Supreme Court defended that state’s codification of the best interest standard despite the clear guidelines in Seymour v. and listed factors with guidelines. CODE § 20-124..212 Yet the best interest of the child doctrine remains the standard legal doctrine. A parent cannot be deprived unless some affirmative reason is shown for doing so such as a finding. or by listing guidelines and factors to be considered. MARTHA ALBERTSON FINEMAN.211 and this doctrine is fostered ardently by some feminist family law scholars.2d 1005. 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). 1980) (listing factors the court considered in determining the BIC which were followed in case law thereafter). 2d 943. e. 215 356 N. . The New York case of Bennett 1975). in which a preference for maternal custody is considered merely a factor along with other evidence hearing on the child’s best interests). THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 12–28. e.E. W. Hollon v. 947 (Miss..” Id.S..childwelfare. at 1007. CODE § 48-2-15 (1980). 176–93 (2002). DEPT.

with heavy reliance on paid experts. but not passed. that discretion is not arbitrary. Judicial discretion does indeed afford flexibility. Nonetheless. Szwed. where the problems lie. yet application of the standard has been.”220 Mnookin argues that not only is there no consensus on what is ‘best. 885. even calling the best interests principle “ at 86.219 calling the notion “idealistic. CUSTODY PRESUMPTIONS 3. 10 Today. nor unlimited. but grounded in the principles set out in Section I. self-defeating. L. and the lack of definition and guidelines have all leant to the difficulty of applying the BIC standard. WARDLE. see SUMMARY OF STATE LAWS.’ but the ability to predict what judicial ruling will produce the best results for children is never actually possible. Great latitude in judicial discretion is not only allowed by these conflicts. as the court always will lack all the information necessary to make an objective decision. The Best Interests Syndrome and the Allocation of Power in Child Care.114 JOURNAL OF LAW & FAMILY STUDIES [Vol.218 Not all family law scholars are convinced that the BIC standard is the best way to decide legal matters regarding children. 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. 1983)). 219 See generally ROBERT MNOOKIN. every state has a statute requiring that the child’s best interests be considered whenever decisions regarding a child’s placement are made. virtuous. http://www. “Courts may be in the poorest position of all to know what the facts are. supra note 39. supra note 213. 221 WARDLE & NOLAN. 218 217 . a similar statute). ST. but in many cases is required to sort out the law in light of the facts.” neglecting the rights and needs of parents. at 863–64. Geach & E. Louisiana has provided a statutory answer that codifies the best interest application to fertilized ovum. 220 BREEN.. 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. CONS. custody decisions are based on short hearings (if any testimony). 109 PENN. IV.law2. subjecting the interests For a listing of each state’s code. Szwed. eds. See Fotini Antonia Skouvakis.” and a high sounding self-deception requiring “a highly individualized choice between alternatives. REV. and remains. APPLICATION (OR NOT) OF THE LEGAL FOUNDATIONS The conflict of rights between parents and children. Defining the Undefined: Using a Best Interests Approach to Decide the Fate of Cryopreserved Preembryos in Pennsylvania.htm (last visited May 22. “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. THE BIC STANDARD.221 Others agree with this assessment. in PROVIDING CIVIL JUSTICE FOR CHILDREN 8. the spectrum of judicial discretion. and sought to be applied in the cases outlined in Section II.byu. supra note 39. nor capricious. the state’s sometimes hazy role as parens patriae.” LYNN D.” BREEN. 8 (H. Id. at 54 (citing Robert Mnookin & E. 2006).217 The foundations of the BIC doctrine show how important this standard is to American family law. IN THE INTERESTS OF CHILDREN 517–27 (1985). § 453 (2003)). STAT. Even new reproductive technology is demanding a legal standard by which to determine the fate of frozen embryos. at 890 (noting also that New Jersey is the only other state that has proposed. supra note 62.

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

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

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

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

”248 and makes a case for marriage being essential to a child’s best interests. at 733–35 (opposing Martha Fineman’s mother/child dyad promoted in her book THE NEUTERED MOTHER.253 The ultimate goal of the best interests standard is Id. Children and the Problem of Formation in American Families. and the father’s rights approach to “replace marriage with conception as the defining element of parenthood”). conceive of ways to improve the lot of a particular child. 250 MARY ANN GLENDON. and the well being of children is naturally affected. and deference to. parental rights. at 733. See also Duncan. and presenting various studies supporting the assertion that parents are spending too little time with their children to form adequate relationships). at 733. at 732–34. at 1244.C. 249 Id. at 732–37. 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. working to strengthen marriage as a social institution. at 1242. supra note 7. Whitmore proffers that this thinking is already a part of the Catholic tradition and merely needs to be taught and implemented in developed detail. at 274.249 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. see also Hafen supra note 99. See Carbone. 264–68 (1995) (addressing the problem from the Roman Catholic tradition in placing responsibility for children on parents. e. It remains a serious legal apprehension that the data shows a failure of child formation in families. supra note 212. Harvard law professor Mary Ann Glendon serves now on the Council on Families in America. 15 ANN.251 To respond to the needs of family formation in America the law and society must see that “children are gifts of creation. 247 Carbone. in individual cases. holding firm to the best interest of the child standard. Id. rather than children’s rights which work to the detriment of the family upon which the child’s best interests rely. 246 245 . Justice Parker states his judicial view of this fact. I believe the best interests of a child are served by strengthening the state’s acknowledgment of. a hope for the future. 251 See generally Todd David Whitmore. at 1290–94. which by its nature cannot love. Consequently. and judges later if parents abdicate their God-given roles. 252 Id. the best interests of children are served by the state’s declining to interfere with family government merely because its agents can. Carbone. supra note 93. 247 She argues for these decisions to “take place within a framework set by assumptions about the kind of family life society should promote. THE TRANSFORMATION OF FAMILY LAW 102–03 (1989).245 Protection of children by parents is thereby diminished. supra note 7. because God has specially and uniquely equipped parents to raise their children so that any parent who possesses at least some love can care for his or her child better than the state. See.. 246 In reviewing Mary Ann Mason’s historical work on custody standards. SOC’Y CHRISTIAN ETHICS 263.”252 Responsibility for children lies with parents first. Duncan proposes that we focus on the family unit by enforcing parental rights without jeopardizing the necessary protections granted to children.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. and our present responsibility in stewardship. 248 Id. Duncan.”250 These concerns have had serious negative implications for children and their welfare. supra note 93.g.. In fact. Id. at 273–74. 253 In his dissent in Ex parte G. supra note 7.

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

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