Best interests

Best interests

Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well-being of children. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents: With whom will the children live?; How much contact (previously termed "access", or in some jurisdictions, "visitation") will the parents, legal guardian, or other parties be allowed (or required) to have?; and To whom and by whom will child support be paid and in what amount?

History

The use of the best interests doctrine represented a 20th century shift in public policy. 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. states 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 continue to give great weight to the traditional role of the mother as the primary caregiver, application of this standard in custody has 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).

Assessing the best interests of the child

In proceedings involving divorce 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 that 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 heathcare 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, psychologists 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 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 parents, 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 comprehesive 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 been criticized by certain groups. For more information and rationale, see the main article.

References

*Jill Elaine Hasday, "The Canon of Family Law", Stanford Law Review, Vol. 57 (December, 2004), p. 825-900.
* [http://www.grad.berkeley.edu/deans/mason/booksfathersintroduction.shtml Mary Ann Mason, From Father’s Property To Children’s Rights, A History of Child Custody]

ee also

* Children's rights
*Convention on the Rights of the Child

External links

* [http://www.law.yale.edu/rcw Representing Children Worldwide] How Children Are Heard in Children Protective Proceedings in 250 Jurisdictions


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