10 J. L. FAM. STUD. 337(2008)
40 Pages Posted: 9 Nov 2011 Last revised: 10 Jul 2013
Date Written: November 9, 2008
The best interests of the child doctrine is at once the most heralded, derided and relied upon standard in family law today. It is heralded because it espouses the best and highest standard; it is derided because it is necessarily subjective; and it is relied upon because there is nothing better. And in every case, a judge must decide what is “best” for any child at any time under any particular circumstance. This standard, so central to family law, is of critical importance, yet surrounded by a muddled legal haze of judicial confusion over just how to determine what “the best” really is.
Discerning the roots of the legal standard applied to children in literally every early American case, this article thoroughly analyzes the English roots of common law and case law which established legal principle in family sovereignty. Impressions of judicial review of the standard begs for assistance in the proper use of judicial discretion in cases involving children, yielding a more appropriate analysis of the most suitable application of the best interests standard. The article demonstrates that the best interest of the child doctrine is as old as the American colonies and can be traced to America’s earliest case law foundations, concluding that though scattered in and out of English law, the best interests of the child doctrine is uniquely American in its development. This strong base has in turn caused a near global adoption of the concept. The doctrine, however it may be derided or heralded, is the American legacy America to global family law.
The article argues, nonetheless, that the application of this standard has turned toward near pure judicial discretion in contemporary judging causing litigators and advocates to have no rule of law to rely upon. While setting out the basis for the doctrine, this article calls for a rebuilding of the legal foundations of the best interests of the child standard not only in America and in western tradition, but worldwide.
Keywords: child, family, jurisprudence, best, interest, American
JEL Classification: K1, K10
Suggested Citation: Suggested Citation
Kohm, Lynne Marie, Tracing the Foundations of the Best Interest of the Child Standard in American Jurisprudence (November 9, 2008). 10 J. L. FAM. STUD. 337(2008). Available at SSRN: https://ssrn.com/abstract=1957143 or http://dx.doi.org/10.2139/ssrn.1957143