Every year, Law Day (May 1) reminds us of our great heritage of liberty under law. But this year, Law Day is special. For the first time in its 44-year history, Law Day is focusing on how law protects the best interests of our children.

What does “best interests of the child” mean? The notion of special protections for children began to come into American law in the late 19th century. Prior to that time, there were no children’s rights in family law, no protections against abuse, no juvenile justice system. The term “best interests of the child” dates from that era and has over a century of use in American courts.

The phrase is a standard intended to help guide courts in certain kinds of cases involving children. In matters related to parental divorce or separation, for example, the phrase has evolved to generally become the primary consideration of judicial decision-making.

Looking at some of the factors a court considers in determining child custody can give us insights into how the standard works in practice. If parents cannot agree on custody of their child, the court decides custody according to “the best interest of the child.”



If one parent in a custody dispute has a major problem with alcoholism or mental illness or has abused the child, that, of course, could be the deciding factor.

If neither parent has engaged in unusually bad conduct, the most important factor often is which parent has been primarily responsible for taking care of the child on a day-to-day basis. Use of this factor promotes continuity in the child’s life and gives custody of the child to the more experienced parent who has taken care of the child’s day-to-day needs. If both parents have actively cared for the child or if the child is older, the factor is less crucial, although it is still considered.

The wishes of a child can be an important factor in deciding custody. The weight a court gives the child’s wishes will depend on the child’s age, maturity, and quality of reasons.

A parent’s affairs or nonmarital sexual relations are not usually a factor in deciding custody unless it can be shown that the relationship has harmed the child or is likely to harm the child in the future. The impact of a parent’s homosexual relationships on custody decisions varies dramatically from state to state.



On the other hand, undermining a child’s relationship with the other parent is always a factor. If one parent is trying to undermine the child’s relationship with the other parent, that is a negative factor against the parent who is trying to hurt the relationship.

The best interests standard is used in many other kinds of cases as well. For example, when children are in the care of the state, whether in foster care or in institutional placements, “best interests” is an important measure of whether services are meeting the child’s needs. Is the child receiving needed medical attention? Is the child being educated appropriately?

When considering how laws and courts might be improved, the best interest standard forms the basis for evaluating laws and how they work in practice. For example, are family and juvenile laws sufficiently child-centered?

There has always been concern about the vagueness and breadth of this term, as well as the potential arbitrariness in how it may be applied. The “best interests” standard does not provide specific guidance. It is a subjective standard.



And there are often disagreements over what actions truly are in the best interests of children in a given case. But the phrase has rightfully retained its special place in American law because of the need to keep the interests and perspective of the child foremost in the minds of adult decision-makers.

“Best interests of the child” embodies an aspiration against which legal policy and legal actions must be measured. The term reminds us that we must never lose sight of the viewpoint of the most defenseless member of the human family: the child.