During divorce, a judge will use a doctrine known as “the best interest of the child” to determine issues such as child custody and visitation of any minor children. It is a subjective, discretionary test, in which all circumstances affecting the child are taken into account. The word discretionary is important because, although states have laws defining what is meant by “best interest” of a child a judge has great leeway in determining the above issues.
For example, in the state of Tennessee custody and visitation provisions state, “In taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in subdivisions (a)(1)-(10), the location of the residences of the parents, the child’s need for stability and all other relevant factors.”
Those “other relevant factors” are:
- The love, affection and emotional ties existing between the parents or caregivers and the child;
- The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education, and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;
- The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment.
- The stability of the family unit of the parents or caregivers;
- The mental and physical health of the parents or caregivers;
- The home, school and community record of the child;
- The reasonable preference of the child, if twelve (12) years of age or older;
- Evidence of physical or emotional abuse to the child, to the other parent or to any other person; the court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer to any issues of abuse to the juvenile court for further proceedings;
- The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child; and
- Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.
How The “Best Interest” Doctrine Fails Our Children
As you can see, the majority of the factors used by a judge to decide custody and visitation arrangements are quite subjective. A judge’s personal feelings and opinions are more than likely what will determine a case, not a true legal standing in family law.
When the application of “best interest of the child” ends up being based on nothing more than judicial discretion it only makes sense that those who argue the need for a new standard in determining these legal issues may be the ones who are, in reality, the only ones concerned with the “best interest of the child.”
The standard is supposed to promote uniformity and take into account the rights of a child to a loving relationship with both parents. Instead, it is often criticized because it is easily manipulated by family court judges. Some who argue against the “best interest” doctrine say that it is nothing more than an excuse for the courts to interfere with private family issues and has little to do with the welfare of children.
Regardless of the broad discretion given to judges and the potential for its abuse the underlying goal of the “best interest” standard in family law shouldn’t be ignored. It is, after all, all we have at this time in family law that attempts to advance the rights and welfare of our children.