Best interests
Encyclopedia
Best interests or best interests of the child is the doctrine used by most court
s to determine a wide range of issues relating to the well-being of child
ren. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents. Here are some examples:
. The best interests doctrine is an aspect of parens patriae
, and in the United States
it has replaced the Tender Years Doctrine
, which rested on the basis that children are not resilient, and almost any change in a child's living situation would be detrimental to their well-being.
Until the early 1900s, fathers were given custody of the children in case of divorce. Many U.S. state
s then shifted from this standard to one that completely favored the mother as the primary caregiver. In the 1970s, the Tender Years Doctrine was replaced by the best interests of the child as determined by family courts. Because many family courts continued to give great weight to the traditional role of the mother as the primary caregiver, application of this standard in custody historically tended to favor the mother of the children.
The "best interests of the child" doctrine is sometimes used in cases where non-parents, such as grandparents, ask a court to order non-parent visitation with a child. Some parents, usually those who are not awarded custody, say that using the "best interests of the child" doctrine in non-parent visitation cases fails to protect a fit parent's fundamental right to raise their child in the manner they see fit. Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 LEd2d 49 (2000)
.
or the dissolution of a common-law marriage
or a civil union
, family courts are directed to assess the best interests of any children of these unions.
The determination is also used in proceedings which determine legal obligations and entitlements, such as when a child is born outside of marriage, when grandparents assert rights with respect to their grandchildren, and when biological parents assert rights with respect to a child who was given up for adoption.
It is the doctrine usually employed in cases regarding the potential emancipation of minors
. Courts will use this doctrine when called upon to determine who should make medical decisions for a child where the parents disagree with healthcare providers or other authorities.
In determining the best interests of the child or children in the context of a separation of the parents, the court may order various investigations to be undertaken by social workers, Family Court
Advisors from CAFCASS, psychologist
s and other forensic experts
, to determine the living conditions of the child and his custodial and non-custodial parents. Such issues as the stability of the child's life, links with the community, and stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings. In English law
, section 1(1) Children Act 1989
makes the interests of any child the paramount concern of the court in all proceedings and, having indicated in s1(2) that delay is likely to prejudice the interests of any child, it requires the court to consider the "welfare checklist", i.e. the court must consider:
The welfare checklist considers the needs, wishes and feelings of the child and young person and this analysis is vital to ensure that the human rights of children are always in the forefront of all consideration. The welfare checklist provides a comprehensive list of issues that need to be considered to ensure that young people who come into court proceedings are safeguarded fully and their rights as citizens are promoted.
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s to determine a wide range of issues relating to the well-being of child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
ren. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents. Here are some examples:
- With whom will the children live?
- How much contactContact (law)In family law, contact is one of the general terms which denotes the level of contact a parent or other significant person in a child's life can have with that child...
(previously termed "access" or, in some jurisdictions, "visitationContact (law)In family law, contact is one of the general terms which denotes the level of contact a parent or other significant person in a child's life can have with that child...
") will the parents, legal guardianLegal guardianA legal guardian is a person who has the legal authority to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability...
, or other parties be allowed (or required) to have?
- To whom and by whom will child supportChild supportIn family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
be paid and in what amount?
History
The use of the best interests doctrine represented a 20th century shift in public policyPublic policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
. The best interests doctrine is an aspect of parens patriae
Parens patriae
Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
, and in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
it has replaced the Tender Years Doctrine
Tender Years Doctrine
The tender years doctrine is a legal principle which has existed in family law since the late nineteenth century. This common law doctrine presumes that during a child's "tender" years , the mother should have custody of the child...
, which rested on the basis that children are not resilient, and almost any change in a child's living situation would be detrimental to their well-being.
Until the early 1900s, fathers were given custody of the children in case of divorce. Many U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s then shifted from this standard to one that completely favored the mother as the primary caregiver. In the 1970s, the Tender Years Doctrine was replaced by the best interests of the child as determined by family courts. Because many family courts continued to give great weight to the traditional role of the mother as the primary caregiver, application of this standard in custody historically tended to favor the mother of the children.
The "best interests of the child" doctrine is sometimes used in cases where non-parents, such as grandparents, ask a court to order non-parent visitation with a child. Some parents, usually those who are not awarded custody, say that using the "best interests of the child" doctrine in non-parent visitation cases fails to protect a fit parent's fundamental right to raise their child in the manner they see fit. Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 LEd2d 49 (2000)
Troxel v. Granville
Troxel v. Granville, 530 U.S. 57 , was a case in which the Supreme Court of the United States, citing a constitutional right of parents to rear their children, struck down a Washington state law that allowed any third party to petition state courts for child visitation rights over parental...
.
Assessing the best interests of the child
In proceedings involving divorceDivorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
or the dissolution of a common-law marriage
Common-law marriage
Common-law marriage, sometimes called sui juris marriage, informal marriage or marriage by habit and repute, is a form of interpersonal status that is legally recognized in limited jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage...
or a civil union
Civil union
A civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...
, family courts are directed to assess the best interests of any children of these unions.
The determination is also used in proceedings which determine legal obligations and entitlements, such as when a child is born outside of marriage, when grandparents assert rights with respect to their grandchildren, and when biological parents assert rights with respect to a child who was given up for adoption.
It is the doctrine usually employed in cases regarding the potential emancipation of minors
Emancipation of minors
An emancipated minor is a minor who is allowed to conduct a business or any other occupation on their own behalf or for their own account outside the influence of a parent or guardian. The minor will then have full contractual capacity to conclude contract with regard to the business. Whether...
. Courts will use this doctrine when called upon to determine who should make medical decisions for a child where the parents disagree with healthcare providers or other authorities.
In determining the best interests of the child or children in the context of a separation of the parents, the court may order various investigations to be undertaken by social workers, Family Court
Family court
A family court is a court convened to decide matters and make orders in relation to family law, such as custody of children. In common-law jurisdictions "family courts" are statutory creations primarily dealing with equitable matters devolved from a court of inherent jurisdiction, such as a...
Advisors from CAFCASS, psychologist
Psychologist
Psychologist is a professional or academic title used by individuals who are either:* Clinical professionals who work with patients in a variety of therapeutic contexts .* Scientists conducting psychological research or teaching psychology in a college...
s and other forensic experts
Forensics
Forensic science is the application of a broad spectrum of sciences to answer questions of interest to a legal system. This may be in relation to a crime or a civil action...
, to determine the living conditions of the child and his custodial and non-custodial parents. Such issues as the stability of the child's life, links with the community, and stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings. In English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, section 1(1) Children Act 1989
Children Act 1989
The Children Act 1989 is a British Act of Parliament that altered the law in regard to children. In particular, it introduced the notion of parental responsibility. Later laws amended certain parts of the Children Act...
makes the interests of any child the paramount concern of the court in all proceedings and, having indicated in s1(2) that delay is likely to prejudice the interests of any child, it requires the court to consider the "welfare checklist", i.e. the court must consider:
- The ascertainable wishes and feelings of each child concerned (considered in light of their age and understanding)
- Physical, emotional and/or educational needs now and in the future
- The likely effect on any change in the circumstances now and in the future
- Age, sex, background and any other characteristics the court considers relevant
- Any harm suffered or at risk of suffering now and in the future
- How capable each parent, and other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs
- The range of powers available to the court under the Children Act 1989 in the proceedings in question
The welfare checklist considers the needs, wishes and feelings of the child and young person and this analysis is vital to ensure that the human rights of children are always in the forefront of all consideration. The welfare checklist provides a comprehensive list of issues that need to be considered to ensure that young people who come into court proceedings are safeguarded fully and their rights as citizens are promoted.
Criticism of the best interests standard
The Best Interests standard has received considerable criticism by certain groups within the privacy rights and family law reform movement, particularly with regard to how it unlawfully marginalizes children from one of their parents absent a compelling government interest, and often cultivates protracted litigation. Critics argue that a higher evidentiary standard should be applied to fit parents, and that the Best Interests standard should only be applied in cases where a termination of parental rights has already occurred.External links
- Representing Children Worldwide How Children Are Heard in Children Protective Proceedings in 250 Jurisdictions