Eagle Forum Legislative Alerts

Friday, August 16, 2013

What's Wrong With 'Best Interest of the Child'?

We can no longer ignore how taxpayers' money is incentivizing divorce and creating children who never or seldom see their fathers. We can no longer ignore the government's complicity in the predictable social costs that result from more than 17 million children growing up without their fathers. Fatherless boys and girls are much more likely to run away, abuse drugs, get pregnant, drop out of school, commit suicide, or end up in jail.

The root of almost everyone's unhappiness with the Family Courts that hear the cases of family disputes is the use of a legal doctrine called the Best Interest of the Child. This phrase originated in British law and originally meant the presumption that courts should generally stay out of family decisions because parents should determine the "best interests" of their children. This was confirmed by our own Supreme Court in 1979 which said, "natural bonds of affection lead parents to act in the best interests of their children."

Most U.S. family law was rewritten in the 1970s, and somehow the meaning of "best interest of the child" was dramatically changed. It has become a buzzword to conceal the transfer of parental rights to judges. This phrase is now used as an affirmative grant of power to family court judges to overrule parents on all child-related issues. But that change is so wrong. It is contrary to the rule of law because it gives judges extraordinary discretion to enforce their own prejudices and to micro-manage lives.

The "best interests" standard undermines parental rights because, instead of saying that parents are the final authorities, as the family unit was understood for centuries, it allows judges to make routine child-rearing decisions. And, judges have no competence to determine a child's best interests, so they rely on poorly trained so-called "experts" who make unscientific recommendations about custody and visitation.

Listen to the radio commentary here:

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