Defining “Best Interest of the Child” in Family Law
By Teresa Harlow
It is said that those involved with the family courts—domestic relations judges, guardians ad litem, parenting coordinators, and others—must always act in the best interests of the children involved. And certainly, that is easy enough to agree with given the fact that these court officers make life-changing decisions on behalf of these children.
But how do you define “best interests of the child”? Is there a uniform definition of the term “best interests”? I mean if this is the legal standard for making life-changing decisions for a child, shouldn’t the standard be objective and measurable? Yet, according to the U.S. Government Child Welfare Information Gateway (childwelfare.gov), “…there is no standard definition of best interests of the child.” They go on to state that “"Best interests" determinations are generally made by considering a number of factors related to the child's circumstances and the parent or caregiver's circumstances and capacity to parent, with the child's ultimate safety and well-being the paramount concern.”
Wow! Did you read anything objective or measurable in that qualifying statement? See the words “generally,” “considering,” coupled with many undefined statements which sound good but hold no precise meaning.
If you ask anyone in the family court system to define “best interests of the child,” the answer is usually “it depends.” Ok, what exactly does it depend? Well, that depends too. Some considerations are straightforward, such as a history of domestic violence committed by a parent. While others are more abstract and subjective, like considering the emotional tie and relationship between the child and their parent. So a judge who has probably never met either the parents or the child before can arrive at an informed opinion concerning the parent-child relationship? Doubtful! Yet, many State Bar Associations argue that because of the abstract and very personalized nature of family cases, judges must have broad discretion in deciding what is appropriate.
I understand that because every family is different, it is difficult to define “best interest.” Plus, applying inflexible standards may not serve a child’s best interest. But if we must live with all this discretion and subjectivity, can we look at how judges apply the guidelines for determining best interests to see if we can tighten things up there?
Let’s say a mother and father are divorcing and both want full custody. Where does a judge start when evaluating the children’s best interest? It is suggested that the family courts strive to keep the child in their home. But in this context, what does the court consider “the child’s home”? Is it the physical structure in which a child lives or does the definition of home encompass the family that resides there? While shelter is a basic human need to ensure safety, it’s not a specific building which provides the child safety and stability. It’s the family to which the child is connected that provides emotional stability and physical safety. The building itself makes little difference.
Given this fact, shouldn’t family court officers’ priority be to maintain the child’s family relationships, only deviating from that if there is evidence that the child could be harmed? In other words, why can’t the courts, the Bar Association, and lawmakers agree that it is in a child’s best interest for both parents to be equally involved with their children? And why can’t they write that into family laws? Instead, they prioritize maintaining the child’s physical home while disregarding the emotional trauma children endure when the parent-child connection is disrupted.
Maybe it’s because I am not a lawyer that this seems so simple to me? Why would you believe that it is more important for a child to remain at a particular address than to have both parents equally involved in their life? If the child of an intact family loses one parent to a death, it is considered a tragedy. Why is it any less tragic for a child to lose a parent or have that relationship disrupted due to divorce? Why is it a tragedy if a parent dies but not if a parent is removed from a child’s life? The tremendous trauma inflicted when the parent-child relationship is disrupted is so great that this step should only be taken if a child’s well-being is in danger. Otherwise both parents should have equal access to their children.
I can hear domestic violence advocates cursing me despite my disclaimer to consider a deviation from this position when a child’s life is in danger. I also imagine many child health advocates believe it is a hardship for young children and those with disabilities to shuffle between two homes. Yet these same professionals are not concerned with the hardship imposed by the disruption of the parent-child relationship.
For anyone who has lost access to their child or had their parenting time reduced, you have probably followed my ramblings here without missing a beat. If this is all new to you, your head may be spinning. You may have, in fact, concluded that family court matters are too complicated and believe that officers of the court do sit in the best position to assess these complex situations, being bound by their ethics, the law, and the obligation to do what is right. And so we continue having judges who do not know these families make life-altering decisions for them.
Beyond the problem of defining “best interests of the child,” there is another problem with the family court systems in the U.S. Did you know that if a parent is accused of wrongdoing in family court, there is no presumption of innocence? Wait, what? Isn’t the presumption of innocence of the accused a sacred pillar of our U.S. justice systems? Only if you’re talking about criminal justice. As family court does not live within the criminal justice system, this presumption does not apply. If a parent is accused of wrongdoing by another, the accused parent must disprove the accusations. And parents fighting for custody would never falsely accuse each other, would they?
Going further, if the accusation suggests a child may be in harm’s way, the court will most likely grant a temporary order suspending the accused parent’s rights to the child immediately and until the accusations are disproven. This could take months or even years depending on the court backlog and case complexity. Meanwhile, the child and parent suffer the trauma of the disrupted parent-child relationship and the child misses the opportunity to benefit from this parent’s emotional support, guidance, and protection.
The third flaw in the family court system is that typically the burden of proving the legitimacy of an accusation is preponderance of evidence. This is the lowest burden of proof. According to Cornell Law School’s Legal Information Institute website (https://www.law.cornell.edu/wex/preponderance_of_the_evidence), “Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder”, (i.e. the judge), “that there is a greater than 50% chance that the claim is true.” So it is slightly more likely than not that the claim is true. Mind you, no one ever says how you arrive at a percentage value in a non-mathematical equation. So really this is just a finger-in-the-wind sort of judgement. Not much on which to base a life-changing decision.
There is another level of proof that family courts, given their unique nature, could apply if the laws require them to do so. That is clear and convincing evidence. Clear and convincing is more rigorous than preponderance of evidence but less strict than beyond a reasonable doubt. By using this mid-level burden of proof, the courts protect victims while preserving the importance of the parent-child relationship.
With all these flaws in the family court system, shouldn’t we do everything we can to improve it? These are families we’re talking about here. Children’s lives will turn out vastly different because of the decisions made in family courtrooms. So how do we make family laws and family courts better for children and more equitable for parents? Where do we start? I propose the adoption of three guiding principles as the basis for family law in every U.S. State.
It is in the best interest of the child to preserve the parent-child relationship and, in the absence of proof to the contrary, for parents to have equal time and authority over their children.
Proof to the contrary must withstand a clear and convincing evidence burden of proof.
Judges should be required to award both parents equal parenting time and authority over their children unless there is either clear and convincing proof to the contrary or agreement by the parents to an alternative arrangement.
Does it really need to be any more complicated than this? Do you agree? If so, I invite you to share this article with your state lawmakers. Think I’m missing something? Leave a comment and let me know.
Teresa Harlow is a Co-parenting Coach, Mediator, and the author of Combative to Collaborative: The Co-parenting Code. Learn more at TeresaHarlow.com.