The best interest of the CHILD

 

This guest post is from Regent Law Family Law student Taylor Qualls:

The best interest of the child is designated to be the guidepost of family law issues concerning children. However, this standard is applied based on each trial court judge’s discretion. Personal beliefs and traditions a judge holds may be weighed in determining the outcome of a child custody battle.

Judges are often a mother or father and are always someone’s son or daughter. What we face when we are children or parents can guide us through our subconscious to make decisions based on our past, present, or what we may see as our future. The subconscious controls values, beliefs, intuitions, and more. If someone experienced abuse as a child, or if they have a particularly challenging child to parent, or if they believe their mother or father was the more stable parent, they may draw upon those experiences to make decisions about how others should parent their children. However, that is not what the best interest of the child standard calls for.

The best interest of the child should call for judges to determine what is in the best interest of the child based on factors in that jurisdiction as applied to that particular child. Judges should remind themselves to not draw upon their own experiences but to instead be objective as they have sworn to do.

Imagine a situation where a father is an upstanding citizen in society. He has a stable job, he spends every moment he can with his children, he comes to all of their events, and he supports his children financially. The father brings suit seeking primary physical custody of his children. However, the children have resided with their mother since the parents divorced. The mother has been extremely unstable, moving the children seven or more times in one year, being unable to secure stable employment, and having numerous men in and out of the home the children live in. In turn, the children have had to move schools, they cannot seem to get settled, and the instability of the circumstances begins to affect the children. 

In some courts, depending largely upon who the judge is, the children above may be forced to stay with their extremely unstable mother, because of the sole reason that she is their mother. A judge may hold that there is still a presumption in his or her mind that the mother is always the preferred parent, and is always acting in the best interest of the children, even when a dad may be better equipped to care for the children. However, this is about the children, not about the mom, or the dad, or the judge.  The law currently states that the best interest of the child should be the guiding point of decisions involving children.

Imagine another situation where a child has been disciplined by their parent, but abuse is alleged. The circumstances surrounding the alleged abuse may include the child talking back, sneaking out late, or being disrespectful in general. A judge who believes children should not be disciplined at all may harshly punish the parent who disciplined their child. However, a judge who believes in discipline may let the parent off with no penalty at all.

The above situations are not just. There should not be different outcomes based on how a judge feels about a particular matter because of personal beliefs and/or circumstances they encountered. My solution to this problem would be to challenge judges everywhere to put their personal beliefs and opinions on how one should parent their child aside, and consider only the provided factors as applied to the particular child when determining the best interest of the child. Remember, the best interests of the child is not about the judge, or the mom, or the dad, but rather it is all about the child.