Best Interests of the Child?June 27, 2014
Best Interest of the Child?
How did we get here and what does it mean?
When parties decide to separate they are confronted with trying to make decisions that impact financially and emotionally on the entire family. The first and most important issue that must be addressed in families with children is who will have custody of the children. Will the parties share custody? Clients frequently ask how will the custodial decision be made if the parents cannot agree on a custodial arrangement. When advised that, as a last resort, the court will make the decision based on the “best interests of the child” the question becomes what that standard means. In trying to define the standard, it helps to know how it originated.
Best Interests of the Child – The History of Child Custody
The “best interests” standard was not always the gauge by which custody issues were decided. During the 18th and 19th Centuries, children were viewed as property and it was therefore presumed that they belonged to their fathers. Mothers had no custodial rights. Not the best approach but certainly the paternal presumption eliminated any debate over the custodial arrangement. The paternal presumption began to fade in the early part of the 19th century and was replaced with the “Tender Years Doctrine”. Under this approach, it was presumed that a child of tender years (usually 3 or under) was best served by being in the custody of his/her mother. Mothers were deemed to be the more nurturing parent and thus the more suited parent to care for the child in their early stages of life. Once the child reached a mature age, fathers could gain custody and once the child was no longer of tender years it became difficult for mothers to retain custody. This custody pendulum shifted back in favor of women having custody in the nineteenth century and some would argue that a presumption in favor of mothers having primary custody still exists today. However, early in the 1900’s, states and the courts began to look for a more gender neutral way to resolve custody matters. The “best interests of the child” concept developed out of this desire for an approach that would, as to custody issues, level the field between men and women.
“Best Interests” Begins
Originally, the concept behind the “best interest” standard was to remove the custody decisions from parents and give children more input into decisions regarding their living arrangement. The concept of best interests has moved far from this original, somewhat simplistic, idea that this very adult decision should be relegated to the children. Over the years, the standard has become much more complex and currently when the court is forced to make custodial decisions “best interests of the child” are determined on a case by case, fact sensitive approach. Recently, legislation was passed in Pennsylvania outlining fifteen specific factors that the court is to consider in reaching decisions on the best interest of the child. Included among the fifteen is the child’s well reasoned preference, but the other factors can readily override the child’s preferences. The factors only provide a format for analyzing the problem. At the end of the day, the court has to make the very difficult assessment of what custodial arrangement will provide children an environment in which they will not only be safe but in which they will also thrive. A truly monumental task that is given to a judge only after all other efforts have failed.
The Right Approach
The “best interests” test is clearly the right approach. The problem is that the issue of what is in a child’s best interest should not be relegated to the child; nor should it be relegated to the court. The decision should be made by the individuals who best know the children and their needs and interests – the parents.
Need Help with Child Custody?
If you need assistance to make sure that the best interests of your child are met, contact the Harrisburg child custody attorneys at DZMM. Our number is 717-724-9821.