Best Interests of Children? or of Parents?

When a family is deconstructed by divorce, what should state legislation do to protect the innocent victims of that divorce, the children?

The National Parents Organization published a Shared Parenting Report Card that, for the first time, graded each state’s child custody statutes A through F, and the results were dismal, according to a recent op-ed by Kristen Paasch of the National Parents Organization of Virginia.  She writes, “On a 4-point scale, the report found that the nation as a whole scored a 1.63 GPA, meaning most states performed poorly in encouraging shared parenting and parental equality in instances of divorce or separation.  This is in direct opposition to current, peer-reviewed research that recently has been published by the American Psychological Association and the Association of Family & Conciliation Courts, among others.”

While this report asserts a focus on what children need, it seems to be most concerned about parental rights in divorce. 

The problem is that once a court is invited into the family through judicial intervention in a divorce, the parents’ rights have been essentially diminished from what they were in an intact family, as the family court must now act as parens patriae (Latin for “state as parent”) and create outcomes that are best for the children foremost, as set out at pages 8-10 of the article “Tracing the Foundations of the Best Interest of the Child Standard in American Jurisprudence,” virtually the only legal academic article on the subject.  That article argues that the application of this standard has turned toward near pure judicial discretion in contemporary judging causing litigators and advocates to have no rule of law upon which to rely. While setting out the basis for the doctrine, that article calls for a rebuilding of the legal foundations of the best interests of the child standard not only in America and in western tradition, but worldwide, that is not so subjective toward parents and children, but truly works to accomplish what is best for the child, rather than simply what each parent wants. 

Parents need to understand that divorce disadvantages the child and the family, and no amount of shared parenting legislation will change that.


  1. "Pure judicial discretion", this is a horrifying thought. I did not know that litigators were on such shaky ground regarding a rule of law in this context. So, are lawyers suppose to research the judge to get a better understanding of his worldview in hopes of getting a favorable outcome? How can judges have this much power over a family?

  2. I found it interesting in the article titled "Tracing the Foundations of the Best Interest of the Child Standard in American Jurisprudence" by Lynne Marie Kohm (link within the blog article) that such jurisprudence is thought by legal scholars to have been developed in the 1960’s when it actually began in the colonial times. The article tracks, among other things, the development of child custody law in America from one favoring the father to law generally considering the best interests of the child. The article would prove useful for informing judges who have almost unimaginative “pure judicial discretion” in deciding child custody and the best interests of the children.

    The “approximation rule,” adopted by the American Law institute as a guideline for judges, proposes to “provide a means of measuring the proportion of time parents spend with their children in performing direct care-giving functions.” However, as the article correctly points out, that approach is quantitative and does not address which caregiver may offer the best “protection, security and love to a child.” The article notes in footnote 243 that American Christians need to advocate on the behalf of children. I agree, but how do we do this more effectively? Also, how do we instill Christian principles regarding child rearing into society, and perhaps present this material in a manner that informs judicial decisions regarding children?