Best Interests of the Child and the Expanding Family
14(1) U.C. Irvine L. Rev. 263 (2024)
61 Pages Posted: 16 Mar 2023 Last revised: 29 Feb 2024
Date Written: March 16, 2023
Abstract
All fifty states have adopted the “best interests of the child” standard governing initial custody determinations. However, the wide judicial discretion accompanying this broad standard has resulted in disparate application across custody cases nationwide. These disparities are particularly prevalent in cases where children have a significant connection with extended family members or non-parent caregivers.
As of 2017, a third of American households with children relied on extended family for childcare assistance. This percentage is likely even higher given the uptick in multigenerational households during the COVID-19 pandemic. Multigenerational family living, once viewed primarily as a cultural niche, is growing across all racial groups. Now, nearly one-quarter of Americans aged 25 to 34 reside with parents or older relatives. Among those living in multigenerational households, over 70% report they reside with a child under 18. These statistics reflect the overall reality that today, less than half of all children live in a traditional two-married-parents nuclear family. Recent legislative proposals recognize the expansion of the nuclear family, granting legal rights and status to new categories of individuals. Despite this shift away from the traditional parent-child family structure, almost all statutory and judicially determined factors that govern state courts’ determination of the “best interests of the child” in custody cases only consider the relationship between biological parents and children.
This Article conducts a fifty-state survey of the current statutes and cases analyzing the “best interests of the child” in custody determinations. The survey results indicate that although every state and District of Columbia have adopted the “best interests of the child” standard, its application across cases is inconsistent, particularly in cases where a parent resides with extended family members or regularly seeks child care assistance from extended family members. Based on the survey findings, this Article advances a three-prong recommendation to increase consistency in these cases: (1) adoption of mandatory, delineated statutory factors; (2) a requirement to make specific findings of fact as to each statutory factor; and (3) addition of a factor considering the history and nature of the child’s relationship with any extended family members and non-parent caregivers.
Keywords: family, family law, best interests, children, child, state survey, judicial discretion
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