What exactly does “best interest of the child” really mean?
By Marion T.D. Lewis, Esq.
Like lyrics to a popular rap song, “best interest of the child” is a rhythmic, tuneless, iambic verse dedicated to the nation’s children who many feel we have either failed, or, (more horrifyingly), left behind. Often permeating with an odor of guilt, the words can at once be intuitive, inevitable, self-explanatory, controversial, sobering and censoring. Arguably, no other words are more utilized by the nation’s judiciary and law makers to cut conversations short, justify the sometimes unjustifiable, and change children’s lives--sometimes permanently.
The rule is probably over a century years old. In its genesis, it was applied in child custody disputes but today, the rule is applied in all proceedings involving the care and welfare of children, including: custody, visitation, support, paternity, and relocation matters, as well as child protective proceedings, and juvenile delinquency proceedings, among others. The Courts consider what is in the best interest of the child after standing and other constitutional criteria are met.
The Best Interest of the Child rule is the standard used across most of the country. The rule probably gained most of its traction after the Baby Boom. It is arguably from the trenches of Post World War II familial warfare that the standard has most evolved. It is no wonder, given the changes in the family structure that came about after more women began working outside the home, and families became increasingly “novel and complex.” Novel and complex familial structures inevitably create novel and complex conflicts which are more and more difficult for the courts to adjudicate. Further, as divorce rates skyrocket, the family itself often seems in danger of imploding. Many parents seem ill-equipped to handle even the simplest parental responsibilities—including the supervision and control of their children. An aggressive and effective response became critical, if for no other reason, to assure that children, caught in the cross-fire, will not suffer unnecessary harm. The utterance of the phrase, “best interest of the child,” seems to be the perfect antidote. Almost no practitioner can win a dispute after the judge indicates that his ruling comes down to the child’s best interest—even on appeal. Everybody knows that in most cases, the Appellate courts will defer to the trial court’s “discretion.”
In recent years, the rule may have been “gentrified” by Attorney General Janet Reno, when in 2000, she famously ordered machine-gun-toting U.S. marshals into the Florida home of Lazaro and Marisleysis Gonzales, to get a little boy named Elian. Elian, a young Cuban boy rescued off the shores of Florida by fishermen who found him floating on a raft after his mother (his custodial parent) and others had perished in a botched attempt to flee Castro’s Communist regime, was taken from his American relatives and returned to his Cuban father who resides in Cuba. The Attorney General opined that it was in Elian’s “best interest” to allow his father to assume custody of the under-aged boy (even if that meant sending the child back to Cuba) in spite of the fact that, before her unfortunate and untimely demise, Elian’s mother clearly thought that getting him out of Cuba was in his best interest. The colliding viewpoints on what was best for Elian demonstrates the troubling elasticity of the rule, its application, and the mechanisms used to arrive at not only what is in the child’s interest, but what is in the child’s best interest. For, was it really in Elian’s best interest to grow up in a Communist country simply because his biological father lived there?
Since Elian, the rule has become a saving catch phrase, evoked whenever the courts, law-makers, educators and others, are in doubt as to what to do with the nation’s children, or, when they need the easiest way out of a tough situation. Not all legal analysts understand what the rule means. In fact it is questionable whether anyone really can determine the exact parameters of its nebulous reach, or can explain for sure what elements must be put together to achieve synthesis so as to determine what truly is best for a child.
The rule seems more a creature of judicial construction than it is an act of the Legislature. In fact, the legislature’s failure to articulate what exactly “best interest of the child” means may not have been purely accidental. It was probably much easier to leave the task to the courts to craft a definition, and to enforce its meaning. And many judges have struggled under the weight of the responsibility. There is no question that context matters. How a court analyzes what is in the child’s best interest may come down to the nature of the proceeding, or which part of the country the case takes place. There are analysts who feel that the term, if it ever had meaning, has lost most of it through misuse, abuse and misinterpretation by many judges. So maligned is the rule by some, that hearing the utterance “it is in the best interest of the child” might annoy, irritate or even nauseate in a similar manner that impudent adolescents who are engaged in cacophonous revelry in a subway car during rush hour might annoy adult straphangers who can barely hear their I-pods above the din.
The lack of a clear definition notwithstanding, no one has yet come up with a better standard or idea. And it is unlikely that anyone will anytime soon. Thus, for now, like it or not, this is the standard used and it’s advisable that everyone accepts it, and make the best of it. That is not to say that all parties should follow along blindly without challenge, questioning or second-guessing. Debate and advocacy will always be crucial especially when five little words yield so much power over the fate of a child. Just because someone utters “best interest of the child,” for example—even if that person is the most learned judge with the utmost discretion—does not necessarily mean that said individual has carefully weighed all facts and has come to the right conclusion for that particular child under those particular circumstances at that particular time. Judges are fallible and can be motivated by other factors having little or nothing to do with the child’s best interest. In retrospect, the Elian Gonzales case could be instructive. Sometimes, the best thing for the child might be that which is counter-intuitive.
 Chapsky v. Wood, 26 Kan. 650 (1881) which opined that the fact that a father who had been absent for the first few years of the child’s life was well to do, and shared a biological link to the child, did not mean custody to him was automatic. Instead, the court should look to the child’s “best interest.”