Best interests
From Wikipedia, the free encyclopedia
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 which parent a child will reside with (see residence in English law); the extent of contact (previously termed "access", or in some jurisdictions, "visitation") with the child by a non-resident parent, legal guardian, or other party; and child support. The determination of what constitutes the best interests of a child is considered by many to be a subjective doctrine as it lacks objective criteria.
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[edit] 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 equally subjective tender years doctrine. That doctrine rested on the basis that children are not resilient and almost any change in a child's living situation would be detrimental to his or her well being.
In the U.S., until the early 1900s, children were legally considered to be chattel, the personal property of the father (in other jurisdictions, children have never been considered chattels). Therefore, the father's determinations outweighed any other person's input on decisions concerning the welfare of the child. Many U.S. states then shifted from this standard to one that completely favored the mother as caregiver. Finally, the 1970s saw the subordination of the interests of either parent (as well as that of foster parents and step-parents) to the interests of the child. Because many courts continue to give great weight to the traditional role of the mother as a caregiver, application of this standard in custody and monetary disputes has historically tended to favor the mother. This has led fathers' rights advocates to derisively assert that the standard really means "the best interests of the mother", and to contend that fathers are arbitrarily deemed to be less capable of caring for and nurturing their 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 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).
[edit] Assessing the best interests of the child
The Child In proceedings involving divorce or the dissolution of a common-law marriage or a civil union, the best interests of any children of these unions will need to be assessed.
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 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. Parents may request or deny visitation or custody to fit their own interests, but the overriding consideration is how the child will benefit from interacting with his 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 his or her age and understanding);
- His or her physical, emotional and/or educational needs now and in the future;
- The likely effect on him or her of any change in the circumstances now and in the future;
- His or her age, sex, background and any other characteristics which the court considers relevant;
- Any harm which he or she has suffered or is at risk of suffering now and in the future;
- How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her 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.
[edit] References
- Jill Elaine Hasday, The Canon of Family Law, Stanford Law Review, Vol. 57 (December, 2004), p. 825-900.
- Mary Ann Mason, From Father’s Property To Children’s Rights, A History of Child Custody
[edit] See also
- Convention on the Rights of the Child
- Child, Family, and State by Mnookin and Weisberg
[edit] External links
- Representing Children Worldwide How Children Are Heard in Children Protective Proceedings in 250 Jurisdictions
