The use of the best interests doctrine represented a 20th century shift in public policy. The best interests doctrine is an aspect of parens patriae and, in the United States. It has replaced the Tender Years Doctrine, which rested on the basis that children are not resilient and almost any change in a child's living situation would be detrimental to their well-being.
Until the early 1900s, fathers were given custody of the children in case of divorce. Many U.S. states then shifted from this standard to one that completely favored the mother as the primary caregiver. In the 1970s, the tender years doctrine was replaced by the best interests of the child as determined by family courts. Because many family courts continue to give great weight to the traditional role of the mother as the primary caregiver, application of this standard in custody has historically tended to favor the mother of the children.
The "best interests of the child" doctrine is sometimes used in cases where non-parents, such as grandparents, ask a court to order non-parent visitation with a child. Some parents, usually those who are not awarded custody, say that using the "best interests of the child" doctrine in non-parent visitation cases fails to protect a fit parent's fundamental right to raise their child in the manner they see fit. Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 LEd2d 49 (2000).
The determination is also used in proceedings which determine legal obligations and entitlements, such as when a child is born outside of marriage, when grandparents assert rights with respect to their grandchildren, and when biological parents assert rights with respect to a child that was given up for adoption.
It is the doctrine usually employed in cases regarding the potential emancipation of minors. Courts will use this doctrine when called upon to determine who should make medical decisions for a child where the parents disagree with heathcare providers or other authorities.
In determining the best interests of the child or children in the context of a separation of the parents, the court may order various investigations to be undertaken by social workers, Family Court Advisors from CAFCASS, psychologists and other forensic experts, to determine the living conditions of the child and his custodial and non-custodial parents. Such issues as the stability of the child's life, links with the community, and stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings. In English law, section 1(1) Children Act 1989 makes the interests of any child the paramount concern of the court in all proceedings and, having indicated in s1(2) that delay is likely to prejudice the interests of any child, it requires the court to consider the "welfare checklist", i.e. the court must consider:
The welfare checklist considers the needs, wishes and feelings of the child and young person and this analysis is vital to ensure that the human rights of children are always in the forefront of all consideration. The welfare checklist provides a comprehesive list of issues that need to be considered to ensure that young people who come into court proceedings are safeguarded fully and their rights as citizens are promoted.
The best interests standard has been criticized by certain groups. For more information and rationale, see the main article.
Orderly development of coastal plain in best interests of Eskimo People. (adapted testimony by Oliver Leavitt before the Senate Energy and Natural Resources Committee)
Oct 22, 1987; Orderly Development of Coastal Plain In Best Interests of Eskimo People IT IS time for a reasoned and responsible examination of...