The Myth of the Best Interest of the Child

Abstract

One of the basic tenets of Family Law as applied to children is consideration of “best interest of the child” in making decisions. Standards for custody, termination, adoption, and all other matters affecting children are overlaid with consideration of best interest. Unfortunately, the promise of best interest is lost in the actual mechanics of making these critical decisions involving children. This Article explores the disconnect between the ideal of using the best interest of the child as a key factor in legal decisions affecting children and the practicalities of competing interests. The Article first explores the common concern of the indeterminacy of a best interest standard. One of the problems with best interest criterion is that almost anything that affects the child can be considered, and the weight to be given is not contained within the standard. Then, I look at the continuous elevation of parental rights over those of children in the areas of custody, the possibility of more than two parents, termination of parental rights, consent to medical care, and non-parent visitation. Next, I look at instances where societal interests are prioritized over the individual child interests—the Indian Child Welfare Act “ICWA”) and the issues surrounding gender affirming care. I also consider the international perspective, looking at the Convention on the Rights of the Child (“CRC”). My conclusion is that children should be independently represented by counsel in complex, high conflict, or high stakes (for the child) cases