英文美国法学上子女利益最大化原则的基础.doc

2008] Best Interests of the Child 375

Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence

Lynne Marie Kohm* Lynne Marie Kohm. John Brown McCarty Professor of Family Law, Regent University School of Law. With sincere gratitude this article is made possible by a generous research stipend from the American Center for Law and Justice, and Regent University School of Law. This article tackles the question presented to me by Justice Tom Parker of the Alabama Supreme Court in his dismay of not finding a resource that clearly sets forth the foundations of the best interests of the child standard. Much gratitude for the excellent research in this article is extended to William Catoe and Eric Welsh, and to Nicholas Beckham for his insightful review and suggestions. My sincere thanks to each of these parties for making this work possible.

Introduction

The best interests of the child doctrine is at once the most heralded, derided and relied upon standard in family law today. It is heralded because it espouses the best and highest standard; it is derided because it is necessarily subjective; and it is relied upon because there is nothing better.
The doctrine affects the placement and disposition of children in divorce, custody, visitation, adoption, the death of a parent, illegitimacy proceedings, abuse proceedings, neglect proceedings, crime, economics, and all forms of child protective services. And in every case, a judge must decide what is “best” for any child at any time under any particular circumstance. That is a lot to ask of anyone. “In the modern era, the family courts of this country operate on the unwarranted premise that judges are capable of making fine-tuned judgments about a child’s best interests.” Martin Guggenheim, What’s Wrong With Children’s Rights 173 (2005). “While the underlying ideal and rhetoric are laudable, the unfortunate reality is that the enormous amounts of time, money, and emotional energy expended in contested custody proceedings often hurt both parents and children.” Id.

The dearth of scholarship, however, on the foundations of this best interests standard for children in American family law jurisprudence does not make the judge’s job any easier. “The best interests standard necessarily invites the judge to rely on his or her own values and biases to decide the case in whatever way the judge thinks best. Even the most basic factors are left for the judge to figure out.” Id. at 40.
This doctrine, so central to American family law, is of critical importance. Yet it is surrounded by a muddled legal haze of judicial confusion over just how to determine what “the best” really is. Perhaps an investigation of the basics of that doctrine can help with this conundrum.
This article will examine the oldest and deepest foundations for the best interests of the child as a legal standard. It thoroughly investigates the judicial and statutory rudimentary building blocks of the best interests of the child as a legal standard, and discusses how that standard has developed and evolved over the course of American jurisprudential history. Considering the doctrine’s foundations, this article contemplates the development of the best interests of the child (BIC) standard, and seeks to offer judges an understanding of the ancestry of the doctrine in a manner that may enlighten their decision-making process regarding children. This article does not presume to know what the best interests of any child really are, but rather it seeks to illuminate the foundations of that doctrine as a legal standard regarding children, and to show how the doctrine can become twisted by adult interests. It concludes that the best interest of the child doctrine is uniquely established in American law and has set the trend for the treatment of children throughout the rest of the world today. Its application, however flawed, may be somehow improved upon with a thorough understanding of the doctrine’s foundations which this article presents.
The objective of this article is to serve judges and justices who must make decisions and analyze facts and circumstances in light of the law of the best interest standard on matters relating to children. It is offered to restore the foundations of American jurisprudence. Children are the future of every society, and certainly of America. When determining the best interest of a child, judges have more power in the palm of their hands than many may realize. This article seeks to give foundational guidance on using that power most judiciously in a restorative fashion. “And I will restore thy judges as at the first, and thy counselors as at the beginning: afterward thou shalt be called, The city of righteousness, the faithful city.” Isaiah 1:26 (King James) (citations to the Bible are from the King James Version unless otherwise indicated).
Section I sets forth the initial underpinnings of the doctrine of the best interests of the child standard, tracing antiquity to Common Law tradition, the Enlightenment and modern legal reform. Here, origins of the doctrine are uncovered and analyzed. Section II examines in chronological order the Anglo American case law that established the standard in American jurisprudence, analyzing how the standard was developed, and why it became part of American family law much earlier than in any other nation. This section demonstrates a clear divergence between English law and American law in the jurisprudential development of the best interest standard. Section III discusses the concern for why or why not these foundations are used in family law today, and offers some insight to judges in their use of the BIC jurisprudence.
Although family law is generally state regulated, with each state’s statutes and case law offering its own (somewhat) unique flavor to the law, states had acquired some rather universal laws regarding the family by the end of the nineteenth century, one of those being the best interests of the child standard. See generally Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth Century America x–xii (1985). This concept of uniformity has been evident in many areas of family law, particularly those regarding children, with states often establishing and developing judicial precedent by citing authority from other states on the same subject matter. The result was that “doctrinal differences among the states became fewer over time.” Donna Schuele, Origins and Development of the Law of Parental Child Support, 27 J. Fam. L. 807 (1988–89) (describing the development of the law of parental duty in regards to child support).
This is indeed the legal standard for custody awards in 45 states. U.S. Commission on Child and Family Welfare Parenting Our Children: In the Best Interest of the Nation (1996), available at http://www.copss.org/research/majority2.htm. “Seven of the 45 States have ‘best interests of the child’ standards that do not include any specific factors to be evaluated in determining the best interests of the child. The determination of the best interests of the child in these States is left to judicial discretion and case law. The other States specify in statute various factors that the court should consider in determining the best interests of the child.” Id. (using Title 722.23 § 3 of the Michigan Child Custody Act of 1970 as illustrative of a state standard that lists a large number (10) of factors to direct judicial discretion).
Though some historical family law scholars proffer that the best interests of the child doctrine originated in this country in the 1960s, See, e.g., Mary Ann Mason, From Father’s Property to Children’s Rights: The History of Child Custody in the United States 121–26 (1994); Joel R. Brandes, Judging the ‘Best Interests of the Child, 221 N.Y. L.J. 3 (Feb. 23, 1999), available at _custody/judging_best_interest.htm (citing Matter of Lincoln v. Lincoln, 24 N.Y.2d 270 (1960) as the first case using the best interests of the child standard, and reviewing the application of the BIC factors in New York based on an analysis of the “totality of the circumstances”).
this article demonstrates that the best interests of the child standard became part of American family law jurisprudence in colonial era case law, and has continued to develop and be relied upon throughout our legal history. Shades of judicial legislation are seen during the early periods of developing statutory law, but unbridled judicial discretion became the pattern for best interests decision-making post 1960 when states passed broad welfare of the child statutes, providing judges simply with lists of factors, and otherwise vague allusions to judicial discretion for what is best for any given child under any given circumstances. This interplay has created an inescapable reliance upon the BIC standard that exists simultaneously with its derision because of the unfettered nature that judicial discretion has taken on in this area of family law. The doctrine, however it may be derided or heralded, is the legacy America has left to global family law.
This article concludes that the doctrine of the best interests of the child is genuinely and uniquely American, and that the doctrine itself has indeed greatly influenced child law globally. The application of this standard, however, has turned toward near pure judicial discretion in contemporary judging, causing litigators and advocates to have no rule of law to rely upon. It has become apparent that at times the doctrine is used to serve the rights of adults while affording lip-service to the best interests of the child. While setting out the basis for the doctrine, this article calls for a rebuilding of the legal foundations of the best interests of the child standard according to reliable rules of law based on the notion of the child’s interests, as guarded by those who have been divinely and inalienably charged to protect those interests. The hope is that judges will use this information to wisely base legal rulings regarding children not on the judge’s own values, nor on the values of the adults bringing the case, but authentically on the foundations of the best interests of those children inherently and intrinsically vested with value and worth apart from the law. Without this underpinning, judges truly have an impossible task before them. “Even putting aside the possibility of judicial bias, judges lack a basis on which to evaluate the best interests of a particular child in the absence of guiding principles.” June Carbone, Child Custody and the Best Interests of Children—A Review of From Father’s Property To Children’s Rights: The History of Child Custody in the United States, 29 Fam. L.Q. 721, 723 (1995). In fact, in reviewing Mason’s work, Professor Carbone pulls out the final historical lesson from Mason’s book: that “the best interests principle is, although sometimes weaker, never stronger than the theoretical framework that underlies it.” Id. at 723.
This was evidenced in a 2005 Alabama Supreme Court case reviewing a lower court’s custody ruling with seven different opinions written by six of the nine judges in the final ruling. Ex parte G.C. Jr. (In re G.C., Jr. v. E.B. and D.B.), 924 So.2d 651 (Ala. 2005). Writing in dissent, Justice Parker notes:
I find this remarkable, because neither the applicable child-custody laws nor the relevant legal precedents appear to be particularly unclear or inconsistent. . . . After considerable reflection, I have concluded that the primary cause of the Court’s varied and often conflicting opinions in this case is disagreement over foundational issues that underlie the more visible custody issues.
Id. at 674. His dissent quite competently proceeds to set out those foundations.

Perhaps, despite the inherent difficulties in discerning what is indeed “best” for any particular child, by understanding the jurisprudential foundations of the BIC standard, judicial decision makers will be better prepared to make truly good, ideally even the best, decisions for children whose fate they hold in their hands, pens, opinions and courtrooms.

II. Foundations of the Jurisprudence of the BIC Standard

It is essential to begin any jurisprudence on children with historically traditional concepts of children and childhood in global and Western culture and their legal roots. The concept of childhood in antiquity is intriguing and conflicting when viewed as an integration of the codes of ancient civilizations: the Jewish tradition, the Greco-Roman era, and early Christianity.
Ancient civilizations seem to heartily and ardently agree that children were special and deserving of protection, being the clear hope for the future. “The Master said, Respect the young,” Appendix to C.S. Lewis, Abolition of Man 101 (Simon & Schuster 1996) (1944) (quoting Illustrations of the Tao, Ancient Chinese, Analects ix 22).
and “Children. . . should be lords of the atmosphere.” Id. at 101 (quoting Hindu, Janet, i. 8).
Ancient Greece records Socratic reflections. “Did not Socrates love his own children, though he did so as a free man and as one not forgetting that the gods have the first claim on our friendship?” Id. at 96 (quoting Greek, Epictetus, iii. 24).
Ancient Rome records similar reflections that hint at a divine relationship between parent and child. “Nature produces a special love of offspring” and “[t]o live according to Nature is the supreme good.” Id. at 101 (quoting Roman, Cicero, DeOff. I.iv, and De Legibus, I. xxi).
Indeed, even “[g]reat reverence is owed to a child.” Id. at 101 (quoting Roman, Juvenal, xiv.47).

The value of children has waxed and waned over the centuries. Roman law placed children under the authority of both parents and country, “Part of us is claimed by our country, part by our parents, and part by our friends.” Id. at 97 (quoting Roman, Cicero, De Off. I. vii).
in the ownership of their father. Joan B. Kelly, The Determination of Child Custody, 4 Future Child. 121, 121 (1994), available at http://www.futureofchildren.org/usr_doc/vol4no1ART8.pdf.
Children’s low social status and vulnerability during the Roman Empire was “powerfully captured in the common practice of infanticide and the exposing of young children, especially girls. Jewish and Christian writers vigorously opposed these practices.” John T. Carroll, Children in the Bible 122 (2001) (citations omitted).
That opposition attitude is clearly evident in how children are characterized in the biblical record. In the Old Testament, there are at least five scripture references that discuss the importance of the care and protection of children. Isaiah 54:13 (describing protection of descendants); Isaiah 66:13 (“As a mother comforts her child, so I will comfort you.”); Deuteronomy 30:19 (“[C]hoose life, that you and your children may live.”); Deuteronomy 32:46 (“[Y]e shall command