Awarding Custody: The Best Interests of the Child and Other Fictions

Abstract

The "best interests of the child" is the standard for awarding child custody in the United States, a standard that presumably places paramount importance on the child's physical and psychological well-being. While in theory this standard appears enlightened, in practice custody decisions focus on parents rather than children and are marred by personal and cultural bias. Predictions are made without a scientific foundation and, frequently, in contravention of research findings and constitutional equal protection requirements. Because the "best interests of the child" standard is more a vague platitude than a legal or scientific standard, it is subject to abuse both by judges who administer it and parents who use it to further their own interests.