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Individual differences |
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Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well-being of children. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents. Here are some examples:
- With whom will the children live?
- How much contact (previously termed "access" or, in some jurisdictions, "visitation") will the parents, legal guardian, or other parties be allowed (or required) to have?
- To whom and by whom will child support be paid and in what amount?
The use of the best interests doctrine represented a 20th-century shift in public policy. The best interests doctrine is an aspect of parens patriae, and in the United States it has replaced the Tender Years Doctrine, which rested on the basis that children are not resilient, and almost any change in a child's living situation would be detrimental to their well-being.
Until the early 1900s, fathers were given custody of the children in case of divorce. Many U.S. states then shifted from this standard to one that completely favored the mother as the primary caregiver. In the 1970s, the Tender Years Doctrine was replaced by the best interests of the child as determined by family courts. Because many family courts continued to give great weight to the traditional role of the mother as the primary caregiver, application of this standard in custody historically tended to favor the mother of the children.
The "best interests of the child" doctrine is sometimes used in cases where non-parents, such as grandparents, ask a court to order non-parent visitation with a child. Some parents, usually those who are not awarded custody, say that using the "best interests of the child" doctrine in non-parent visitation cases fails to protect a fit parent's fundamental right to raise their child in the manner they see fit. Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 LEd2d 49 (2000).
Assessing the best interests of the childEdit
The determination is also used in proceedings which determine legal obligations and entitlements, such as when a child is born outside of marriage, when grandparents assert rights with respect to their grandchildren, and when biological parents assert rights with respect to a child who was given up for adoption.
It is the doctrine usually employed in cases regarding the potential emancipation of minors. Courts will use this doctrine when called upon to determine who should make medical decisions for a child where the parents disagree with healthcare providers or other authorities.
In determining the best interests of the child or children in the context of a separation of the parents, the court may order various investigations to be undertaken by social workers, Family Court Advisors from CAFCASS, psychologists and other forensic experts, to determine the living conditions of the child and his custodial and non-custodial parents. Such issues as the stability of the child's life, links with the community, and stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings. In English law, section 1(1) Children Act 1989 makes the interests of any child the paramount concern of the court in all proceedings and, having indicated in s1(2) that delay is likely to prejudice the interests of any child, it requires the court to consider the "welfare checklist", i.e. the court must consider:
- The ascertainable wishes and feelings of each child concerned (considered in light of their age and understanding)
- Physical, emotional and/or educational needs now and in the future
- The likely effect on any change in the circumstances now and in the future
- Age, sex, background and any other characteristics the court considers relevant
- Any harm suffered or at risk of suffering now and in the future
- How capable each parent, and other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs
- The range of powers available to the court under the Children Act 1989 in the proceedings in question
The welfare checklist considers the needs, wishes and feelings of the child and young person and this analysis is vital to ensure that the human rights of children are always in the forefront of all consideration. The welfare checklist provides a comprehensive list of issues that need to be considered to ensure that young people who come into court proceedings are safeguarded fully and their rights as citizens are promoted.
Criticism of the best interests standard Edit
- Main article: Fathers' rights movement
The Best Interests standard has received considerable criticism by certain groups within the privacy rights and family law reform movement, particularly with regard to how it unlawfully marginalizes children from one of their parents absent a compelling government interest, and often cultivates protracted litigation. Critics argue that a higher evidentiary standard should be applied to fit parents, and that the Best Interests standard should only be applied in cases where a termination of parental rights has already occurred.
The Best Interests standard has also come under criticism by parents of young children who are not yet able to voice or have difficulty expressing that they have been abused. If a child has been physically or sexually abused and the abuser is a parent, the child will be unprotected from the abuser when that abuser cannot be prosecuted. This can and has happened recently, even when the child has said previously that abuse had taken place. This situation has the potential to happen quite frequently because of the young age of the child and possible inconsistent testimony. Instead, the rights of the parent to raise the child take priority over the well-being of the child who is forced to live with the abuser, even in cases of joint custody where an abuse-free environment is possible. Until recently, children would be taken out of the home of the abuser and placed with the non-abusive parent, but the courts have begun to focus on the rights of the parent to raise the child when the abuse cannot be legally recognized by the court (i.e., the abuser is not convicted). In many cases, the voice of the child is ignored because they have not become old enough for their opinion as to their living situation to matter. When the children are too young to have a voice, it is felt by some parents of young children that the courts are acting with regard to parental rights which, until the child is old enough, seem to replace the right of the child to live in an appropriate environment.
- Dr. Stephen Baskerville, Taken into Custody: The War on Fathers, Marriage and the Family Cumberland House Publishing (September 25, 2007) 
- Jill Elaine Hasday, The Canon of Family Law, Stanford Law Review, Vol. 57 (December, 2004), p. 825-900.
- Mary Ann Mason, From Father’s Property To Children’s Rights, A History of Child Custody
- Dr. Gordon Finley, Best interests of the child and the eye of the beholder
- Prof. Donald Hubin, Parental Rights and Due Process Journal of Law & Family Studies 
- Representing Children Worldwide How Children Are Heard in Children Protective Proceedings in 250 Jurisdictions
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