The "Best Interests of the Child" Doctrine

A hundred years ago in the United States, fathers were given custody of their children in divorce cases. In subsequent decades, however, courts completely shifted their focus, adopting a policy that completely favored the mother. This "tender years" doctrine made the assumption that the mother is the primary caregiver, particularly during a child's earliest years, and is thus most suited to continue caring for children on a day-to-day basis.

However, in recent years, the courts have changed their focus again, reflecting changes in traditional family structure and in the roles played by mothers and fathers within the family. Most child custody cases are now based on the doctrine of "Best Interests of the Child." If you are proceeding with a custody case, you should understand exactly what this doctrine means.

The best interests of the child are taken into consideration when the court deliberates where the child will live (with the mother or the father), how much contact the "losing" party will be able to have with the child, how much child support will be paid and by whom, and other issues.

And in determining the best interests of the child, the court may order that investigations be undertaken by psychologists, social workers, family court advisors, and other forensic experts. These examiners will attempt to determine the child's living conditions (whether currently living with the mother, the father, or some third party), the current stability of the child's life, and the likely stability to be provided in either the mother's or the father's household.

There is also a "welfare checklist" that the court must consider. To the degree possible, the court will attempt to determine the child's own preference; the child's physical and emotional needs; the likely effect of a change in the child's environment; any harm or abuse suffered by the child, and whether the child might be at risk of harm or abuse in either the mother's or the father's household; and the capability, both emotional and financial, of both parties in taking proper care of the child.

Different U.S. states emphasize various aspects of the "best interests" doctrine, though all follow roughly the same guidelines. Many states emphasize the importance of family integrity, and attempt to avoid removing the child from his or her present home. Other jurisdictions emphasize the health and safety of the child, while still others look for a timely decision, so that the child is not left "in limbo" for an extended period of time.

And, especially when the separation or divorce is amicable and the mother and father remain on friendly terms with each other, courts are more and more opting for joint custody -- determining that it is in the child's best interest to continue to receive substantive parenting from both the mother and the father. If both parents continue to live in the same school district, it may even be possible to have the child split time evenly between both parents. This solution necessitates a great deal of continuing contact, and cooperation, between the parents, but if both parents are able to compromise and continue to jointly raise their child in a nurturing, non-confrontational environment, it is often the best solution of all.