Tracing the Foundations of the Best Interests of the Child Standard

Tracing the Foundations of the Best Interests of the Child
Standard in American Jurisprudence
Lynne Marie Kohm*
INTRODUCTION
The best interests of the child doctrine is at once the most heralded, derided
and relied upon standard in family law today. It is heralded because it espouses the
best and highest standard; it is derided because it is necessarily subjective; and it is
relied upon because there is nothing better.
The doctrine affects the placement and disposition of children in divorce,
custody, visitation, adoption, the death of a parent, illegitimacy proceedings, abuse
proceedings, neglect proceedings, crime, economics, and all forms of child
protective services. And in every case, a judge must decide what is “best” for any
child at any time under any particular circumstance. That is a lot to ask of anyone.
“In the modern era, the family courts of this country operate on the unwarranted
premise that judges are capable of making fine-tuned judgments about a child’s
best interests.”1
The dearth of scholarship, however, on the foundations of this best interests
standard for children in American family law jurisprudence does not make the
judge’s job any easier. “The best interests standard necessarily invites the judge to
rely on his or her own values and biases to decide the case in whatever way the
judge thinks best. Even the most basic factors are left for the judge to figure out.”2
This doctrine, so central to American family law, is of critical importance. Yet it is
surrounded by a muddled legal haze of judicial confusion over just how to
determine what “the best” really is. Perhaps an investigation of the basics of that
doctrine can help with this conundrum.
This article will examine the oldest and deepest foundations for the best
interests of the child as a legal standard. It thoroughly investigates the judicial and
statutory rudimentary building blocks of the best interests of the child as a legal
standard, and discusses how that standard has developed and evolved over the
*
Lynne Marie Kohm. John Brown McCarty Professor of Family Law, Regent University
School of Law. With sincere gratitude this article is made possible by a generous research stipend
from the American Center for Law and Justice, and Regent University School of Law. This article
tackles the question presented to me by Justice Tom Parker of the Alabama Supreme Court in his
dismay of not finding a resource that clearly sets forth the foundations of the best interests of the
child standard. Much gratitude for the excellent research in this article is extended to William Catoe
and Eric Welsh, and to Nicholas Beckham for his insightful review and suggestions. My sincere
thanks to each of these parties for making this work possible.
1
MARTIN GUGGENHEIM, WHAT’S WRONG WITH CHILDREN’S RIGHTS 173 (2005). “While the
underlying ideal and rhetoric are laudable, the unfortunate reality is that the enormous amounts of
time, money, and emotional energy expended in contested custody proceedings often hurt both
parents and children.” Id.
2
Id. at 40.
81
82 JOURNAL OF LAW & FAMILY STUDIES [Vol. 10
course of American jurisprudential history. Considering the doctrine’s foundations,

this article contemplates the development of the best interests of the child (BIC)
standard, and seeks to offer judges an understanding of the ancestry of the doctrine
in a manner that may enlighten their decision-making process regarding children.
This article does not presume to know what the best interests of any child really
are, but rather it seeks to illuminate the foundations of that doctrine as a legal
standard regarding children, and to show how the doctrine can become twisted by
adult interests. It concludes that the best interest of the child doctrine is uniquely
established in American law and has set the trend for the treatment of children
throughout the rest of the world today. Its application, however flawed, may be
somehow improved upon with a thorough understanding of the doctrine’s
foundations which this article presents.
The objective of this article is to serve judges and justices who must make
decisions and analyze facts and circumstances in light of the law of the best
interest standard on matters relating to children. It is offered to restore the
foundations of American jurisprudence.3 Section I sets forth the initial
underpinnings of the doctrine of the best interests of the child standard, tracing
antiquity to Common Law tradition, the Enlightenment and modern legal reform.
Here, origins of the doctrine are uncovered and analyzed. Section II examines in
chronological order the Anglo American case law that established the standard in
American jurisprudence, analyzing how the standard was developed, and why it
became part of American family law much earlier than in any other nation. This
section demonstrates a clear divergence between English law and American law in
the jurisprudential development of the best interest standard. Section III discusses
the concern for why or why not these foundations are used in family law today,
and offers some insight to judges in their use of the BIC jurisprudence.
Although family law is generally state regulated, with each state’s statutes and
case law offering its own (somewhat) unique flavor to the law, states had acquired
some rather universal laws regarding the family by the end of the nineteenth
century, one of those being the best interests of the child standard. 4 This is indeed
the legal standard for custody awards in 45 states.5 Though some historical family
3
Children are the future of every society, and certainly of America. When determining the best
interest of a child, judges have more power in the palm of their hands than many may realize. This
article seeks to give foundational guidance on using that power most judiciously in a restorative
fashion. “And I will restore thy judges as at the first, and thy counselors as at the beginning:
afterward thou shalt be called, The city of righteousness, the faithful city.” Isaiah 1:26 (King James)
(citations to the Bible are from the King James Version unless otherwise indicated).
4
See generally MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH
CENTURY AMERICA x–xii (1985). This concept of uniformity has been evident in many areas of family
law, particularly those regarding children, with states often establishing and developing judicial
precedent by citing authority from other states on the same subject matter. The result was that
“doctrinal differences among the states became fewer over time.” Donna Schuele, Origins and
Development of the Law of Parental Child Support, 27 J. FAM. L. 807 (1988–89) (describing the
development of the law of parental duty in regards to child support).
5
U.S. COMMISSION ON CHILD AND FAMILY WELFARE PARENTING OUR CHILDREN: IN THE BEST INTEREST OF
THE NATION (1996), available at http://www.copss.org/research/majority2.htm. “Seven of the 45 States
have ‘best interests of the child’ standards that do not include any specific factors to be evaluated in
2008] BEST INTERESTS OF THE CHILD 83
law scholars proffer that the best interests of the child doctrine originated in this
country in the 1960s,6 this article demonstrates that the best interests of the child
standard became part of American family law jurisprudence in colonial era case
law, and has continued to develop and be relied upon throughout our legal history.
Shades of judicial legislation are seen during the early periods of developing
statutory law, but unbridled judicial discretion became the pattern for best interests
decision-making post 1960 when states passed broad welfare of the child statutes,
providing judges simply with lists of factors, and otherwise vague allusions to
judicial discretion for what is best for any given child under any given
circumstances. This interplay has created an inescapable reliance upon the BIC
standard that exists simultaneously with its derision because of the unfettered
nature that judicial discretion has taken on in this area of family law. The doctrine,
however it may be derided or heralded, is the legacy America has left to global
family law.
This article concludes that the doctrine of the best interests of the child is
genuinely and uniquely American, and that the doctrine itself has indeed greatly
influenced child law globally. The application of this standard, however, has
turned toward near pure judicial discretion in contemporary judging, causing
litigators and advocates to have no rule of law to rely upon. It has become apparent
that at times the doctrine is used to serve the rights of adults while affording lip-
service to the best interests of the child. While setting out the basis for the doctrine,
this article calls for a rebuilding of the legal foundations of the best interests of the
child standard according to reliable rules of law based on the notion of the child’s
interests, as guarded by those who have been divinely and inalienably charged to
protect those interests. The hope is that judges will use this information to wisely
base legal rulings regarding children not on the judge’s own values, nor on the
values of the adults bringing the case, but authentically on the foundations of the
best interests of those children inherently and intrinsically vested with value and
worth apart from the law. Without this underpinning, judges truly have an
impossible task before them.7 This was evidenced in a 2005 Alabama Supreme
determining the best interests of the child. The determination of the best interests of the child in these
States is left to judicial discretion and case law. The other States specify in statute various factors that
the court should consider in determining the best interests of the child.” Id. (using Title 722.23 § 3 of
the Michigan Child Custody Act of 1970 as illustrative of a state standard that lists a large number
(10) of factors to direct judicial discretion).
6
See, e.g., MARY ANN MASON, FROM FATHER’S PROPERTY TO CHILDREN’S RIGHTS: THE HISTORY OF
CHILD CUSTODY IN THE UNITED STATES 121–26 (1994); Joel R. Brandes, Judging the ‘Best Interests of
the Child, 221 N.Y. L.J. 3 (Feb. 23, 1999), available at http://www.brandeslaw.com/child
_custody/judging_best_interest.htm (citing Matter of Lincoln v. Lincoln, 24 N.Y.2d 270 (1960) as the
first case using the best interests of the child standard, and reviewing the application of the BIC
factors in New York based on an analysis of the “totality of the circumstances”).
7
“Even putting aside the possibility of judicial bias, judges lack a basis on which to evaluate
the best interests of a particular child in the absence of guiding principles.” June Carbone, Child
Custody and the Best Interests of Children—A Review of From Father’s Property To Children’s
Rights: The History of Child Custody in the United States, 29 FAM. L.Q. 721, 723 (1995). In fact, in
reviewing Mason’s work, Professor Carbone pulls out the final historical lesson from Mason’s book:
that “the best interests principle is, although sometimes weaker, never stronger than the theoretical
Court case reviewing a lower court’s custody ruling with seven different opinions
written by six of the nine judges in the final ruling.8
Perhaps, despite the inherent difficulties in discerning what is indeed “best”
for any particular child, by understanding the jurisprudential foundations of the
BIC standard, judicial decision makers will be better prepared to make truly good,
ideally even the best, decisions for children whose fate they hold in their hands,
pens, opinions and courtrooms.
II. FOUNDATIONS OF THE JURISPRUDENCE OF THE BIC STANDARD
It is essential to begin any jurisprudence on children with historically

traditional concepts of children and childhood in global and Western culture and
their legal roots. The concept of childhood in antiquity is intriguing and conflicting
when viewed as an integration of the codes of ancient civilizations: the Jewish
tradition, the Greco-Roman era, and early Christianity.
Ancient civilizations seem to heartily and ardently agree that children were
special and deserving of protection, being the clear hope for the future. “The
Master said, Respect the young,”9 and “Children. . . should be lords of the
atmosphere.”10 Ancient Greece records Socratic reflections. “Did not Socrates love
his own children, though he did so as a free man and as one not forgetting that the
gods have the first claim on our friendship?”11 Ancient Rome records similar
reflections that hint at a divine relationship between parent and child. “Nature
produces a special love of offspring” and “[t]o live according to Nature is the
supreme good.”12 Indeed, even “[g]reat reverence is owed to a child.”13
The value of children has waxed and waned over the centuries. Roman law
placed children under the authority of both parents and country,14 in the ownership
of their father.15 Children’s low social status and vulnerability during the Roman
Empire was “powerfully captured in the common practice of infanticide and the
framework that underlies it.” Id. at 723.

8
Ex parte G.C. Jr. (In re G.C., Jr. v. E.B. and D.B.), 924 So.2d 651 (Ala. 2005). Writing in
dissent, Justice Parker notes:
I find this remarkable, because neither the applicable child-custody laws nor the relevant
legal precedents appear to be particularly unclear or inconsistent. . . . After considerable
reflection, I have concluded that the primary cause of the Court’s varied and often
conflicting opinions in this case is disagreement over foundational issues that underlie the
more visible custody issues.
Id. at 674. His dissent quite competently proceeds to set out those foundations.
9
Appendix to C.S. LEWIS, ABOLITION OF MAN 101 (Simon & Schuster 1996) (1944) (quoting
ILLUSTRATIONS OF THE TAO, ANCIENT CHINESE, ANALECTS ix 22).
10
Id. at 101 (quoting Hindu, Janet, i. 8).
11
Id. at 96 (quoting Greek, Epictetus, iii. 24).
12
Id. at 101 (quoting Roman, Cicero, DeOff. I.iv, and De Legibus, I. xxi).
13
Id. at 101 (quoting Roman, Juvenal, xiv.47).
14
“Part of us is claimed by our country, part by our parents, and part by our friends.” Id. at 97
(quoting Roman, Cicero, De Off. I. vii).
15
Joan B. Kelly, The Determination of Child Custody, 4 FUTURE CHILD. 121, 121 (1994),
available at http://www.futureofchildren.org/usr_doc/vol4no1ART8.pdf.
exposing of young children, especially girls. Jewish and Christian writers

vigorously opposed these practices.”16 That opposition attitude is clearly evident in
how children are characterized in the biblical record. In the Old Testament, there
are at least five scripture references that discuss the importance of the care and
protection of children.17 There are at least thirteen scriptures which directly discuss
exhortations to children or to parents to shape the behavior of children, 18 and at
least three references that liken childlike qualities to godly qualities.19
With the emergence of Jesus Christ’s life, words and actions, and the
subsequent publication of the New Testament, Christian scripture pronounced even
more clearly the value of children in the face of cultural opposition of that time to
such an idea. “Children have low social status and are virtually powerless. It is all
the more stunning, therefore, that Jesus offers the child as paradigm for
participation in God’s world.”20 In the New Testament, there are at least nine
references that discuss the importance of the care and protection of children.21
There are at least five scriptures that directly discuss shaping the behavior of
16
JOHN T. CARROLL, CHILDREN IN THE BIBLE 122 (2001) (citations omitted).
17
Isaiah 54:13 (describing protection of descendants); Isaiah 66:13 (“As a mother comforts her
child, so I will comfort you.”); Deuteronomy 30:19 (“[C]hoose life, that you and your children may
live.”); Deuteronomy 32:46 (“[Y]e shall command your children to observe to do, all the words of
this law.”); Malachi 4:6 (“And he shall turn the heart of the fathers to the children, and the heart of
the children to their fathers.”).
18
Deuteronomy 4:9 (“. . . but teach them thy sons, and thy sons’ sons.”); Deuteronomy 6:7
(“And thou shalt teach [the commandments] diligently unto thy children”); Deuteronomy 11:19
(“And ye shall teach [God’s words to] your children.”); Psalms 34:11 (“Come, ye children, hearken
unto me: I will teach you the fear of the LORD.”); Psalms 78:4–6 (commanding parents to pass on
their faith to following generations); Proverbs 10:1 (“A wise son maketh a glad father: but a foolish
son is the heaviness of his mother.”); Proverbs 20:11 (“Even a child is known by his doings, whether
his work be pure, and whether it be right.”); Proverbs 22:6 (“Train up a child in the way he should
go: and when he is old, he will not depart from it.”); Proverbs 22:15 (“Foolishness is bound in the
heart of a child; but the rod of correction shall drive it far from him.”); Proverbs 23:13 (“Withhold
not correction from the child: for if thou beatest him with the rod, he shall not die.”); Proverbs 23:22
(“Hearken unto thy father that begat thee, and despise not thy mother when she is old”); Proverbs
29:15 (“a child left to himself bringeth his mother to shame.”); Ecclesiastes 12:1 (“Remember now
thy Creator in the days of thy youth.”); Joel 1:3 (“Tell ye your children of it, and let your children tell
their children, and their children another generation.”).
19
Among them are Deuteronomy 14:1 (“Ye are the children of the Lord. . .”); Isaiah 11:6
(“[A]nd a little child will lead them”); Psalms 8:2 (“Out of the mouth of babes and sucklings hast
thou ordained strength because of thine enemies, that thou mightest still the enemy and the
avenger.”).
20
CARROLL, supra note 16, at 121.
21
Matthew 7:11 (“[K]now how to give good gifts unto your children. . .”); Matthew 18:6
(decrying those who cause harm to a child); Mark 9:37 (“Whoever welcomes a little child in my
name welcomes me. . .”); 2 Corinthians 12:14 (“[F]or the children ought not to lay up for the parents,
but the parents for the children.”); Ephesians 6:4 (“And, ye fathers, provoke not your children to
wrath: but bring them up in the nurture and admonition of the LORD.”); Colossians 3:21 (“Fathers,
provoke not your children to anger, lest they be discouraged.”); 1 Timothy 3:12 (“Let the deacons be
the husbands of one wife, ruling their children and their own houses well.”); 1 Timothy 5:10 (“Well
reported of for good works; if she have brought up children.”); 1 John 5:1 (“Whosoever believeth that
Jesus is the Christ is born of God: and every one that loveth him that begat loveth him also that is
begotten of him.”).
children.22 Furthermore, there are at least three references that liken childlike
qualities to godly qualities,23 and at least fifteen scriptures that implore adults to be
like children.24 Jesus points to God’s people as his children, or needing to be like
children, as a “paradigm of God’s character and ways in the world.” 25 Though it
did not always permeate the Greco-Roman mindset, children are highly valued in
Jewish and Christian traditions. The historical Judeo-Christian influence regarding
children is apparent throughout the entire biblical text, as there are at least twenty-
seven references that illustrate that children are highly valued,26 are a gift of God27
and are offered special promises.28 Carroll notes that:
The biblical tradition prizes children as a blessing given by a gracious

God, yet their social position is marginal, and they are vulnerable even to
abuse in the name of good household management. It is therefore all the
more astonishing that the Gospels present Jesus as “the friend of
22
These include Mark 7:10 (honoring parents); Mark 13:12 (rebelling against parents);
Ephesians 6:1–3 (obeying parents); Colossians 3:20 (obeying parents); I Timothy 3:4 (obeying
father).
23
Among them are Matthew 11:25 (discussing God’s truth as revealed to children yet hidden
from learned men); Matthew 21:16 (describing praise coming from the lips of children); Luke 10:21
(“[T]hou hast hid these things from the wise and prudent, and hast revealed them unto babes: even so,
Father; for so it seemed good in thy sight.”).
24
These include Matthew 5:9 (stating peacemakers are sons of God); Matthew 18:2–3 (stating
you must change to become as a child); John 1:12 (describing men and women as children of God);
John 12:36 (analogizing trust as sons); Romans 8: 14, 16 (describing men and women as children of
God); Romans 9:26 (describing sons of God); 2 Corinthians 6:18 (referring to God’s sons and
daughters); Galatians 3:26 (indicating sons of God); Galatians 4:5–6 (discussing rights as sons);
Hebrews 12:7 (indicating that God disciplines his people as sons); 1 John 3:1 (stating we should be
called sons of God).
25
26
Joel 2:28 (describing sons and daughters as prophets); Psalms 127:4–5 (analogizing sons as
arrows to a warrior); Psalms 128:3 (describing sons around your table as olive shoots); Proverbs 17:6
(describing grandchildren as a crown); Proverbs 20:7 (stating children are blessed); Proverbs 31:28
(stating children rise to bless their mother); Matthew 19:14 (“But Jesus said, Suffer little children, and
forbid them not, to come unto me: for of such is the kingdom of heaven.”); Mark 10:14 (encouraging
children to go to Jesus); Mark 10:16 (describing Jesus taking children in his arms); Luke 18:16 (“But
Jesus called them unto him, and said, Suffer little children to come unto me, and forbid them not: for
of such is the kingdom of God.”); Acts 2:39 (describing promises to children); Hebrew 2:13 (stating
God gives children).
27
Genesis 33:5 (stating God graciously gives children); Genesis 48:9 (stating God gives sons);
Joshua 24:3 (indicating God gives descendants); Psalms 113:9 (stating children bless a barren
woman as a mother); Psalms 127:3 (indicating sons are a blessing); Isaiah 8:18 (stating children are
given by God).
28
Deuteronomy 5:16 (stating children will live long and it will go well for them when they
honor parents); Psalms 27:10 (stating God receives children forsaken by parents); Proverbs 8:32
(stating sons are blessed when keeping God’s way); Isaiah 40:11 (stating God leads the young);
Mark 10:14 (stating children are promised the kingdom of God); Acts 2:39 (indicating children are
the promise of future hope); Ephesians 6:2 (indicating children are promised a long life for honoring
parents).
children” in a way that departs radically from this larger cultural and
biblical pattern.29
At a time when societies viewed children primarily as products, consumers,

and burdens, the discourses of Jesus Christ regarding children provide a striking
contrast to such modern theories.30 “Let the children come to me, do not hinder
them; for to such belongs the kingdom of God. Truly I say to you, whoever does
not receive the kingdom of God like a child shall not enter it.”31 The influence of
Christianity on the treatment of children was certain. Yet, despite the influence of
Christianity, the idea of childhood was lacking in medieval society. There was no
conscious awareness of the particular nature of a child which distinguishes him or
her from an adult.32 “That is why, as soon as the child could live without the
constant solicitude of his mother, his nanny or his cradle rocker, he belonged to
adult society.”33 This attitude permeated the law surrounding families.
Harold Berman’s Law and Revolution draws on Augustinian foundation and
canon law to clarify that law and any legitimate legal system consists of the trio of
law as the positive command of the law giver, a reflection of the universal moral
law, and an expression of the historical traditions of a people. 34 This trio offers a
good deal to an historical analysis of family law development. The Protestant
Reformation entailed the reform of law with Philip Melanchton’s method of
analysis, from which derives the basic topics of our contemporary law school
curriculum, constitutional law and family law among them. 35 Theology and its
reforms produced and shaped legal transformations. Calvinist-inspired reforms
became the basis for the historical common law tradition, and Calvinist covenant
theology had a transforming effect on reform of private life.36 These religious
reforms affected the culture and the law, and by the end of the seventeenth century
“a new concept of childhood had appeared.”37 Adults began to take a greater
interest in children and in the recognition and development of the idea that they
were naturally innocent and ought to be protected from anything that might disturb
their modesty, causing a “great change in manners [to] take place in the course of
the seventeenth century. . . . An essential concept had won acceptance: that of the
innocence of childhood.”38 This apparently universal moral law combined with the
29
30
Dawn DeVries, Toward a Theology of Childhood, 55 INTERPRETATION 161, 162–64 (April
2001).
31
Mark 10:14–15 (Rev. Standard).
32
PHILIPPE ARIÈS, CENTURIES OF CHILDHOOD: A SOCIAL HISTORY OF FAMILY LIFE 128 (1962).
33
Id.
34
Peter Judson Richards, The Claremont Inst., The Christian Origins of the Law (Feb. 13,
2006), http://www.claremont.org/writings/021606richards.html (discussing HAROLD BERMAN, LAW AND
REVOLUTION (1983)). “It was Berman’s contribution to identify the context of these beginnings within
the corresponding train of historical developments in Western Christendom.” Id.
35
Id.
36
Id.
37
ARIÈS, supra note 32, at 129.
38
Id. at 110.
positive commands of the Law Giver gave jurists a more illumined perspective of
children when they became involved in the law, becoming to some extent a part of
the tradition of the time.
In the eighteenth century, though, there were still contrasting and conflicting
views of religious perspectives on children and their place in society, often
including “Christian elements based upon the continuing belief that the child was
essentially corrupt.”39 Another Christian view presented the child as lacking in
maturity, where wisdom could be learned in the process of growing to maturity. 40
Yet another Christian tradition of Puritanism “perceived children as essentially
prone to a badness that” required discipline and correction. Children were seen as
being born with Original Sin, inheriting sinfulness of man, requiring education and
constraints of society to tame their sinful behavior.41 The New Testament image of
children seen as needing protection and love,42 combined with the Old Testament
view of the child as needing wisdom and guidance,43 all added up to an authentic
socio-legal concern for the development of each individual child.44
Philosophers like John Locke viewed children as having natural rights that
need to be protected.45 “He believed that children were not their parents’ property
but God’s property. . . that children were destined to take their place in the moral
and social order as individuals and that parents were obliged to bring their children
to a state where they were capable of independence.”46 Locke regarded the child as
a blank slate, neither good nor bad.47 Children needed education, in his school of
thought, to provide for the “best” way to produce “rational” adults out of immature
children.48 Jean Jacque Rousseau held to the concept of the child as pure,49 yet
corrupted by society.50 “God makes all things good; man meddles with them and
they become evil.”51 Historian Hugh Cunningham notes that:
[F]ramed by the writings of John Locke at its beginning and of the

romantic poets at its end, and with the strident figure of Rousseau at
39
CLAIRE BREEN, THE STANDARD OF THE BEST INTERESTS OF THE CHILD: A WESTERN TRADITION IN
INTERNATIONAL AND COMPARATIVE LAW 35 (2002).
40
Id. at 36–37.
41
Id. at 36 (citing D. ARCHARD, CHILDREN: RIGHTS AND CHILDHOOD 38 (1995)).
42
See, e.g., Matthew 18:5, 14 (NIV) (“And whoever welcomes a little child like this in my
name welcomes me. . . . In the same way your Father in heaven is not willing that any of these little
ones should be lost.”).
43
See, e.g., Proverbs 22:6 (NIV) (“Train up a child in the way he should go and when he is old
he will not turn from it.”).
44
BREEN, supra note 39, at 37.
45
JOHN LOCKE, TWO TREATISES OF GOVERNMENT 330 (1960) (citing specifically THE SECOND TREATISE
¶ 67).
46
47
Id. at 36.
48
Id. at 37.
49
Id. at 36.
50
Id. at 38.
51
Id. (citing JEAN JACQUES ROUSSEAU, ÉMILE 5 (B. Foxley trans., J. M. Dent 1963)).
centre stage, there seems in the eighteenth century to be a degree of

sensitivity to childhood and to children lacking in previous centuries.
Some people began to see childhood not as a preparation for something
else, whether adulthood or heaven, but as a stage of life to be valued in
its own right.52
Romanticism seemed to create new ways of thinking about infancy and youth,
with a reverence and a sanctification of childhood. It “embedded in the European
and American mind a sense of the importance of childhood, a belief that childhood
should be happy, and a hope that the qualities of childhood, if they could be
preserved in adulthood, might help redeem the adult world.”53
The common law of England reigned as the jurisprudence of that culture. “In
short, common law doctrines were derived from natural principles of justice,
statutes were acts of will; common law rules were discovered, statutes were
made.”54 William Blackstone’s commentaries expounded on family authority as
well. Superior paternal power “dominated much of English common law up until
and during the nineteenth century. The law only recognized one head of the family
and in this capacity the father maintained tremendous power over its members.”55
The English common law afforded fathers near absolute power over their children
with a moral and legal obligation to protect, support and educate their children.56
Custody law began to develop in the 1600s, starting with the natural law
concept of patria potestas, or paternal power, which many believe gave the father
absolute rights to his children—whom he viewed as chattel.57 The late seventeenth
52
HUGH CUNNINGHAM, CHILDREN AND CHILDHOOD IN WESTERN SOCIETY SINCE 1500 61 (1995).
53
Id. at 77–78.
54
MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW (1780–1860) 7 (1977).
55
BREEN, supra note 39, at 44 (citing S.M. Cretney, “What Will the Women Want Next?” The
Struggle for Power within the Family 1925–75, 112 THE L. Q. REV. 110, 112–13 (1996)).
The common law of England denied to a wife any legal right to the custody or care and
control of her children: and the concept that a wife was a mere chattel whose identity
merged into that of her husband was thereby reflected in the legal structure governing the
most basic of human relationships.
Id. This paternal preference rule was departed from in England throughout the nineteenth
century, allowing more maternal custodial powers when appropriate via the Custody of
Children Act of 1839, the Custody of Infants Act of 1873, the Guardianship of Infants Act
of 1886, and the Matrimonial Causes Act of 1857, but changes were based in parental
equality rather than the best interests of the child. Id. at 43–45.
56
WILLIAM BLACKSTONE, 1 COMMENTARIES ON THE LAW OF ENGLAND, *453. This included the right of
the father to the labor and earnings of his children. “[The father] may indeed have the benefit of his
children’s labor while they live with him and are maintained by him; but this is no more than he is
entitled to from his apprentices or servants.” Id.
Family law jurisprudence under English common law was likewise intertwined with the
economy of the society at the time. “Since children were viewed as important economic producers,
the courts became principally involved in issues of the custody and control of children when they
were asked to approve contracts for indenture or to resolve conflicts regarding child labor.” MASON,
supra note 6, at 3.
57
See Kathryn L. Mercer, A Content Analysis of Judicial Decision-Making: How Judges Use
the Primary Caretaker Standard to Make a Custody Determination, 5 WM. & MARY J. WOMEN & L. 1,
century in England transformed the patria potestas jurisprudence toward a parens

patriae doctrine, recognizing the state as parent at times when the King’s Bench
was called upon to intervene in family matters.58 This jurisprudence was likely
influenced by utilitarianism in Europe, which spread to the establishment of the
colonies. John Stuart Mill viewed paternal power as that which could only be
rightfully exercised “to prevent harm to others.”59 The Enlightenment and the
Romantics had a strong influence on the law of families.
The Romantic ideology of childhood began to influence public action in

the eighteenth century with the emergence of the philanthropic concern
to save children in order that they could enjoy their childhood. Like the
child of the Romantics, the philanthropists viewed children as being
unformed enough to be saveable, with such a child being representative
of the future.60
These attitudes of concern for children were integrated with views on

marriage. Lord Hardwicke’s Marriage Act of 1793 regarded marriage clearly as a
property interest with an eye to determine legitimacy of heirs to that family
property.61 Patriarchal rules prevailed in courts of equity in England in their parens
patriae role “to protect the ‘best interests of the child.’. . . More accurately, the
patriarchal rule subsided from a rule to a presumption (that it would be in the best
interests of the child to be raised by father).” 62 Thus, the “best interests of the
child” doctrine essentially sprang out of paternal authority.
During the nineteenth century England departed from the paternal preference;
allowing more maternal custodial powers when appropriate via the Custody of
Children Act of 1839, the British law that brought the Tender Years doctrine to
common law tradition.63 Rather than being established in the best interests of the
child concept, these English laws were apparently based in parental and gender
equality. By this time, British courts completely shifted their custody supposition
to presume “that it was in the best interests of a child, at least a child of tender
years, to be in the custody of its mother. This was the origin of the ‘tender years’
presumption.”64 The language of ‘the best interest of the child’ was more or less a
façade for the presumption of the time. England was not the great actor in the rise
14 (Winter 1998). Not all scholars agree that children were mere property to their parents under the
common law. See Eric A. DeGroff, Sex Education in the Public Schools and the Accommodation of
Familial Rights, 26 CHILD. LEGAL RTS. J. 21, 21 (2006) (arguing that children are under the protection
of parents).
58
Mercer, supra note 57, at 14–15.
59
JOHN STUART MILL, ON LIBERTY 68 (1910).
60
61
Id. at 20 (citing W. MANSELL, A CRITICAL INTRODUCTION TO LAW 92 (1995)).
62
LYNN D. WARDLE & LAURENCE C. NOLAN, FUNDAMENTAL PRINCIPLES OF FAMILY LAW 858 (2002).
63
Kelly, supra note 15, at 122; see also Ramsay Laing Klaff, The Tender Years Doctrine: A
Defense, 70 CAL. L. REV. 335, 337 (“The doctrine originated in the nineteenth century as a child-
protective reform intended to elevate the interest of children above fathers’ common law proprietary
rights in children.”).
of the Best Interest of the Child standard. Rather, it is more likely that an American
influence in the English jurisprudence allowed the western development of the BIC
standard. “The standard of the best interests of the child may generally be
described as a principle deriving from Anglo-American family law.”65
The common law was brought to America with the colonists and continued to
be the basis of American law. Natural law arguments in favor of parental authority
and parents’ rights prevailed during the founding period of the new world. “God
had ordained it but also because nature had displayed it—parental authority was
believed to derive from the biological and physical realities of the human
conditions and, in particular, from the relationship of dependency which existed
between the biological parents and their offspring.”66
Children were still part of the American family economy, and thus, important
to the economy of a growing nation. “The issue of child custody in the post-
Revolutionary era (1779–1840) might be classified as a battle between competing
stakeholders for the right to the child’s earnings.”67
The legal and social status of the child was transformed during the first
century of the new republic. While the transformation came slowly in
contrast to the fast pace of political events or economic development, it
was nevertheless relentless. The colonial view of children as helping
hands in a labor-scarce economy gave way to a romantic, emotional view
of children, who were no longer legally akin to servants, under the
complete control of their fathers or masters, but instead were deemed to
have interests of their own.68
More particularly, concern for the best interests of children was most apparent
in the development of adoption law in America. “It is clear that American adoption
statutes emerged in the middle of the nineteenth century on the wave of Protestant
reform movements in order to provide for the welfare of dependent children as an
alternative to pitiful almshouses.”69 This provided a formidable wave of
jurisprudence regarding children. The best interests standard was the American
64
WARDLE & NOLAN, supra note 62. Professors Wardle and Nolan explain the variations of the
presumption, the culturally reinforced idea that mothers should get custody of young children, and
the fact that most mothers personally assumed custody of their children without a contest. Id. at 858–
59.
65
BREEN, supra note 39, at 44. “Admittedly, this is not the only interpretation that may be
accorded to the standard as inevitably the principle of the best interests of the child varies from region
to region and from culture to culture.” Id. at 45.
66
Id. at 148.
67
Mercer, supra note 57, at 15.
The stakeholders at this point were the child as an emerging adult, the state with its
welfare and utilitarian concerns, and the father. Children were regarded primarily as
revenue-generating property during the infancy of the United States. Parents farmed their
children out between the ages of seven and fourteen; they were apprentices thereafter.
Most youth were incorporated fully into the work force by age fifteen.
Id. (citing JOSEPH F. KETT, RITES OF PASSAGE 18 (1977)).
68
MASON, supra note 6, at 50.
framework of adoption, setting a completely new standard. “In contrast to Roman

law, which emphasized adoption as a means of establishing family heirs, American
law sought to ‘establish an institution to ameliorate the condition of the neglected
and dependent child. Inheritance rights were only incidentally considered.’”70 This
was in direct contrast to adoption in England which still followed Roman legal
concepts of adoption focused on purposes of inheritance. “Our statutes, therefore,
took an immediate and radical departure from a basic concept of Roman law in
that the primary concern of our laws was the welfare of the child rather than
concern for the continuity of the” family legacy.71 The American concept of
adoption was so based in the best interests of the child that it entailed a new
meaning for adoption: adoption was about finding a family for a child, rather than
a child for a family.72 A uniquely American blend of antiquity, Christianity and
socio-legal reforms were forming an entirely new basis for family law
development in the new world.
By the nineteenth century this American blend flavored all actions toward
children. Colonial concern for the child in need of a family gave rise to
philanthropy, which in turn gave way to state action to rescue children from the
street, from delinquency, from work and unfair labor.73
The solution to this and to the general problem of street children was to
turn the delinquent once more into a child. This solution was an
internalisation of the Romantic belief that a proper childhood was the
only foundation for a tolerable adult life. Such a childhood was to be
found only in the bound of a family, or a substitute family, upon which
the child would depend for protection.. . .The child was gradually to be
restored to the true position of childhood by being placed within a
family.74
Meanwhile in England, the Chancellor Lord Talfourd promoted the earliest

“tender years” doctrine, intended for custody determinations of only the very
69
Stephen G. Post, Adoption Theologically Considered, 25 J. RELIG. ETHICS 149, 151 (Spring
1997) (discussing the Christian tradition in adoption).
70
Id. at 151 (citing Fred L. Kuhlman, Interstate Succession by and from the Adopted Child, 28
WASH. U. L. Q. 221, 223 (1943)).
71
Id. at 151–52. Post argues that this adoption tradition favoring what was best for the child
over what the family wanted is grounded in Christian tradition. Citing John Boswell’s The Kindness
of Strangers, Post says “it appears that the American Protestant approach to adoption was consistent
with time-honored but forgotten theological insights of early and medieval Christianity.” Id. at 152.
“Christianity ‘discounted the importance of lineage and descent, which have been prominent in
Jewish religious identity’.” Id.
72
See WARDLE & NOLAN, supra note 62, at 337. "This primary focus on the welfare of children
without families distinguished American adoption from the classic Roman, civilian, and common law
approaches, and set the standard which the world now follows. Thus, the heart of this child-centered
model of adoption was the creation of family relationships that imitated and were intended to
replicate the relationship that exists between parents and child(ren) in a birth (natural) family." Id.
73
74
Id. at 41 (citing CUNNINGHAM, supra note 52, at 135–36).
youngest of children75 and largely viewed as a product of natural law.76

Utilitarianism had a continued influence in British family law, and in 1840 Jeremy
Bentham sought to organize the country’s laws to place the general good above
that of the individual. This influenced the law regarding children. He argued for
reforms based on the common good, which meant that children needed state
protection.
The feebleness of infancy demands a continual protection. Everything

must be done for an imperfect being, which as yet does nothing for itself.
The complete development of its physical powers takes many years; that
of its intellectual faculties is still slower. At a certain age, it has already
strength and passions, without experience enough to regulate them. Too
sensitive to present impulses, too negligent of the future, such a being
must be kept under an authority more immediate than that of the
laws. . .77
Out of this utilitarian jurisprudence that transformed much of England’s law

on children, combined with a natural law foundation and the American
development of and emphasis on a best interests approach, a fresh jurisprudence
regarding children developed in the West.78 This has led many family law scholars
to view the BIC standard as a nineteenth century tradition.79
Throughout the nineteenth and into the twentieth century reformers and
philanthropists became “deeply imbued with the Romantic belief that childhood
should be happy….with recognition to be accorded to the special needs and
characteristics of the child.”80 Concern for child welfare in the late 1800s included
illegitimate children, as well as those children suffering from the effects of the
75
Kelly, supra note 15, at 122.
76
77
1 JEREMY BENTHAM, THEORY OF LEGISLATION, VOL. I, 248 (R. Hildreth trans., Weeks, Jordan, &
Co. 1840); see also Mercer, supra note 57, at 18 (stating that a response to Bentham included a call to
the state to protect and regulate the child’s environment: “The State could, and should, intervene to
promote the development of good citizens. Thus, by 1850, a duality existed between the growing
state intervention and the laissez-faire approach to private family maintenance.”).
78
Mercer, supra note 57, at 19. See generally BREEN, supra note 39. Critics of this theory argue
that the best interests of the child doctrine is more accurately considered as “yet another example of
the refinements that occurred in so many categories of nineteenth-century Anglo-American law,”
because of the central role that common law judges played in the elaboration of nineteenth-century
law as creators of critical doctrine regarding the nature of legal reform during this era. Michael
Grossberg, Who Determines Children’s Best Interests?, 17 LAW & HIST. REV. 309, 312 (Summer
1999).
79
See BREEN, supra note 39, at 43; MASON, supra note 6, at xiii.
In the first hundred years of the new republic, from 1790 to 1890, after the end of the
colonial period, there was a dramatic shift away from fathers’ common law rights to
custody and control of their children toward a modern emphasis on the best interests of
the child, with a presumption in favor of mothers as the more nurturing parent. . . . The
changing status of women… was a critical factor in this transformation.
MASON, supra note 6, at xiii.
80
BREEN, supra note 39, at 42 (citing CUNNINGHAM, supra note 52, at 160).
industrial revolution.81 “The ‘best interests of the child’ slowly developed as a

legal concern in the new republic, when, at least for a growing class of parents,
child labor needs were less urgent, and children were assigned an emotional value,
enhanced by the romanticization of their mothers.”82
Over the eighteenth and nineteenth centuries the best interests of the child
became a part of not only American family law jurisprudence, but juvenile justice
jurisprudence as well. The juvenile justice criminal system in America, rather than
circumscribing the best interests of the child, essentially rested on the tradition of
best interests standard, and is applied to the extent that the child is not transferred
to adult criminal courts.83 Often the picture of the child as innocent and deserving
protection continues to exist alongside common law rules as to the criminal
responsibility of children.84 Scholars in this area of child law generally claim that
the basis for juvenile justice is grounded in the BIC standard. “Everything done
during the course of a juvenile court proceeding, from arrest to disposition, is
ostensibly being done with the best interests of the child in mind.”85 Others,
however, disagree that there is ever a good application of the best interests
standard in the juvenile justice system.86
Twentieth century jurists continued the development of the doctrine in case
law across the nation, increasingly entrenching the BIC concept as a permanent
fixture in family law.
The BIC standard began to spread internationally during the twentieth
century. “The rights of the child were first brought together in one internationally
81
MASON, supra note 6, at 30, 34–42.
82
Id. at 47; see also BREEN, supra note 39, at 43.
The ideal of the innocent Romantic child has continued to represent and define our
perceptions of the child over the last two centuries. It is this child which has provided the
norm by which the standard of the best interests of the child has been measured.
However, although the innocent child may provide the measurement of best interests, it is
the ‘Other’, the corrupt child, which has been the true object of the best interests
standard. The Romantic child already exists in a state of nirvana. It is this state that the
best interests standard seeks to attain for the ‘Other’ child.
Id.
83
84
Id. at 20. Breen sets out the common law rules:
Such rules provided that there was an irrebuttable [sic] presumption that a child under the
age of seven was incapable of forming criminal intent and thus could not be liable for his
criminal acts. Children between the ages of seven and fourteen were also held to be
incapable of forming criminal intent although this intention could be rebutted by showing
that the child was able to distinguish between right and wrong and had understood the
nature of his act and that it was wrong. Finally, the law presumed that children fourteen
years old or older had the same criminal capacity as adults and, consequently, were
always liable for their criminal offenses.
Id. n.26 (citing WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND).
85
John R. Bird, Juvenile Corrections Facilities: Is There Any Room for the Isolation Room, in
LEGAL ADVOCACY FOR CHILDREN AND YOUTH: REFORM, TRENDS, AND CONTEMPORARY ISSUES 175, 176
(Howard Davidson & Robert Horowitz, eds., 1986).
86
Luis Recalde, Yale-New Haven Teachers Inst., To What Extent is the Application of Family
Law in the Best Interests of Children? (May 22, 2006), available at http://www.yale.edu/ynhti/curric
ulum/units/1994/1/94.01.05.x.html.
recognized text in 1924,” when the Assembly of the League of Nations passed a
resolution endorsing the Declaration of the Rights of the Child which had been
proclaimed the previous year by the ‘Save the Children International Union,’ the
latter being a non-governmental body based in Geneva.87 These BIC traditions
originated in western law, but were universally promulgated through the United
Nations Convention on the Rights of the Child.88 This was the triumph of a
uniquely American concept adopted by a global community of persons concerned
for children’s welfare. “The standard has developed far beyond its original
conception as a principle of Anglo-American family law which is applied by state
courts and quasi-judicial tribunals in proceedings concerning matrimony, adoption,
fostering, and the guardianship of minors.”89 Indeed, the BIC standard has become
critical in evaluating custody decisions in repatriation cases. 90 The doctrine has had
a global impact, but also an impact on the legal evolution of the jurisprudence
generally surrounding matters regarding the disposition and future of children,
creating a new area of law—that of children’s rights.91
A tension developed between notions of protectionism and autonomy in
regards to children’s rights.92 From the BIC doctrine, children’s rights grew and
87
BREEN, supra note 39, at 77 (citing Declaration of the Rights of the Child, as reprinted in, P.E.
VEERMAN, THE RIGHTS OF THE CHILD AND THE CHANGING IMAGE OF CHILDHOOD 444 (Martinus Nijhoff
Publishers, 1992)) (“The view that children were the (now valuable) property of their parents
remained well into the nineteenth century.”); BREEN, supra note 39, at 43 (citing R.J.R. Levesque,
International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic
Policy, 24 CAL. W. INT’L. L. J. 193, 197 (1994)). Breen notes the undercurrent of cultural relativism
that flows through the Convention on the Rights of the Child, showing somewhat of a tolerance for
practices prejudicial to the health of children. Id. at 19 (citing Article 20(3) and 24(3) of the
Convention). Failure to uphold the best interests standard is vividly displayed by the practice of
female genital mutilation in many African nations, clearly a clash of legal ideals and social traditions.
Id. at 25 (adding the enshrining of the family in the Irish Constitution as in conflict with the best
interests standard).
88
89
Id. “The conflict between the traditions of parental rights and best interests may be traced
through a number of cases which involved disputes with regard to the custody of children.” Id. at
148.
90
ELENA ROZZI, SAVE THE CHILDREN ITALY, THE EVALUATION OF THE BEST INTERESTS OF THE CHILD IN THE
CHOICE BETWEEN REMAINING IN THE HOST COUNTRY AND REPATRIATION: A REFLECTION BASED ON THE
CONVENTION ON THE RIGHTS OF THE CHILD (2002).
91
See BREEN, supra note 39, at 16.
As the tradition of paternal supremacy waned, the non-interventionist tradition with
regard to the child remained and was reflected in a balancing of parental rights which
resulted in a greater degree of equality between parents with regard to the upbringing of
their children. This latter tradition concerning the rights of parents ultimately gave way to
the standard of the best interests of the child, a tradition which, although paternalistic in
nature, was based upon a greater degree of interventionism into family life. This
paternalistic approach has continued to exist somewhat uneasily alongside the tradition of
children’s rights which has emerged more recently and which would appear to favour a
greater degree of autonomy for the child.
Id.
92
The rights based approach has attempted to determine the appropriateness of according
rights to children whereby varying degrees of autonomy are granted to children. In
developed, and out of that jurisprudence arose ardent support for children to be
vested with rights of their own, creating an extreme chasm between children and
their parents by presenting these rights in direct conflict with one another. “As
courts and legislators have created newly recognized rights of children, they
almost invariable have done so in the best interests of the child.”93 Many believe
this is the wrong direction if society is genuinely concerned about children’s best
interests.94 “The misuse and overuse of this concept as a legal doctrine has actually
resulted in children being further victimized at the hands of the State.”95
Out of this forged autonomy rose the children’s rights movement of the
1960s.96 From this movement rose the more subtle and insipid rampage of judicial
discretion. “The tradition of judicial discretion became so firmly imbedded that
many judges often gave no more than lip service to precedent or even to legislation
in their own state, but instead sought to probe tangled fact situations to discover
the best interests of an individual child,” which offered practical rather than legally
correct results.97 Family law scholar and children’s advocate Martin Guggenheim
argues that it is sensible to believe that a child has a right to not be capable, of
being deemed capable to undertand his or her own rights,98 and this has become a
core point in the scholarship against children’s rights.99
Social science has simultaneously gained respect and credibility in the legal
determinations surrounding children and families in mid twentieth century family
law. A landmark book built on the development of BIC jurisprudence written by a
lawyer, a social scientist researcher and a child psychologist, BEYOND THE BEST
contrast to the rights-based approach, the welfare argument has called for a protectionist
approach towards children, an example of which has already been seen in the academic
debate surrounding the standard of the best interests of the child.
Id.
93
John C. Duncan, Jr., The Ultimate Best Interest of the Child Enures from Parental
Reinforcement: The Journey to Family Integrity, 83 NEB. L. REV. 1240, 1244 (2005).
94
See, e.g., ROBERT A. BURT, CHILDREN’S RIGHTS: CONTEMPORARY PERSPECTIVES 40 (Patricia A.
Vardin & Ilene N. Brody eds., 1979) (arguing that the state is manifestly inadequate to protect
children and affording children rights does not solve that problem); Bruce C. Hafen & Jonathan O.
Hafen, Abandoning Children to Their Rights, 55 FIRST THINGS 18 (Aug/Sept. 1995) (arguing that child
autonomy claims are most often for the benefit of adults rather than children).
95
Duncan, supra note 93, at 1244.
96
GUGGENHEIM, supra note 1, at 5–11.
97
MASON, supra note 6, at 59–60 (citing for an example of the loose judicial discretion, State v.
Payne, 23 Tenn. 523 (1843), where the judge departed from established precedent in that state and
used his own judicial discretion in determining the custody outcome, possibly joining the best
interests bandwagon).
98
GUGGENHEIM, supra note 1, at x. Indeed, even Professor Guggenheim, who self-identifies as a
child advocate is quite validly concerned over the falsity and manipulation of children’s rights.
As deeply as I’ve always thought of myself as a children’s advocate, much of what I read
and hear being advocated in furtherance of children’s rights seems to me misguided. And
yet, I continue to identify myself as a children’s advocate while rejecting much of what
falls under the rubric of children’s rights.
Id.
99
See Bruce C. Hafen, Children’s Liberation and the New Egalitarianism: Some Reservations
about Abandoning Youth to Their Rights, 1976 BYU L. REV. 605, 656.
INTERESTS OF THE CHILD,100 sought to question the BIC standard with new
promulgations of the psychological parent.101 Referring more to psychoanalytic
theory regardless of the substantive laws or rules which governed custody, 102 the
book brought social science and expert testimony powerfully into the judicial
decision-making process. It revolutionized child custody. The volume had a strong
impact on judges and lawyers alike,103 and seemed to build an attitude in the law
that completely focused on children, seemingly to the disregard of parents and the
protection they naturally confer upon children. These authors followed up their
work with another similar work, IN THE BEST INTERESTS OF THE CHILD, which also had
an impact on family law,104 and attempted to swing back the pendulum toward a
more balanced approach to parents and their children.105 The greatest concern with
the use of BIC today is that application of the doctrine rests on the judge’s personal
observations and values.
In effect the trial judge, as a basis for [his]findings, made of himself a

witness, and in making [these findings] availed himself of his personal
knowledge; he became an unsworn witness to material facts without the
[parties] having any opportunity to cross-examine, to offer
countervailing evidence or to know upon what evidence the decision
would be made.106
The colonial revolutionary generation was influenced by their commitment to

common law doctrines that conformed “the Law of Nature, the Law of Reason and
the revealed Law of God” essentially to a customary usage of natural law
principles.107 Post-revolutionary American jurisprudence demonstrated a
legitimacy of statutes by individual sovereign states coexisting with common law
principles.108 Gaining a distinctly American flavor, the law began a transformation
which resulted in “the underlying basis for the legitimacy of the common law in
which jurists began to conceive of the common law as an instrument of will.” 109
This legal transformation is often scorned as a “two-edged sword” that judges used
to mold legal doctrine and policy, suggesting a positivist path to broad judicial
discretion where courts deemed the law to be what they said it was, departing from
100
JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD 3–8 (Free Press 1974).
101
Patricia M. Wald, The Kindness of Strangers, 97 YALE L. J. 1477, 1478 (1988) (reviewing IN
THE BEST INTERESTS OF THE CHILD).
102
Id. at 1477.
103
See Richard Crouch, An Essay on the Critical and Judicial Reception of Beyond the Best
Interests of the Child, 13 FAM. L. Q. 49 (1979) (providing a collection of conflicting responses to the
first book).
104
JOSEPH GOLDSTEIN ET AL., IN THE BEST INTERESTS OF THE CHILD 3–9 (Free Press 1986).
105
Wald, supra note 101, at 1480–81.
106
Kovacs v. Szentes, 33 A.2d 124, 126 (Conn. 1943).
107
Id. at 5–8 (quoting Daniel Dulany, THE RIGHT OF THE INHABITANTS OF MARYLAND TO THE BENEFIT
OF THE ENGLISH LAWS (1728) in ST. G. SUOISSANT, THE ENGLISH STATUTES IN MARYLAND 82 (1903)).
108
HOROWITZ, supra note 54, at 18–20.
109
Id. at 22.
English judgments, but adhering, at least loosely, to natural law principles

embedded in the common law.110 All of this occurred in the context of developing
judicial and statutory state law. The result is that American courts began to depart
from their British ancestral custom and develop their own standards and doctrines
via judicial opinion based in natural principles.
What becomes apparent in Section II’s analysis of these early cases is a sense
that some parts of the common law as applied to children were really errant
customary law. That law needed to be at least trifled with, if not realigned with,
revelation to some extent for the welfare of a child. Basing that realignment on
judicial discretion developed a strong legal doctrine in the best interests of the
child. Eventually codified, the BIC standard was often presumed and given very
loose statutory guidance. The case history that follows reveals that judicial
discretion was not unbridled, but wisely employed in the development of the BIC
standard, based in revelation and universal moral concepts integrated into
American family law jurisprudence.
III. CASE LAW IN PROGRESSION
The birth and development of western child law jurisprudence began in the
late 1700s and early 1800s. England’s court documents record several cases
dealing with matters that brought into question the legal rules regarding children
and their worth and value.111 Among the rules questioned was that of absolute
paternal authority, which was taken to task by considering concerns for the child.
Lord Mansfield was a pivotal actor clearing this path among the King’s Bench. In
Rex v. Devall in 1763, he ruled that the court was not required to order the children
who were subjects of a habeas writ to be delivered to their father, but any decision
regarding custody was left to the discretion of the judges, “according to the
circumstances that shall appear before them.”112 In competing custody claims in
Blisset’s Case in 1774, Mansfield allowed the child to remain with its mother
based on the public’s concern for the education of the child, thus doing what was
best for the child.113
Fifteen years later another court of the King’s Bench was concerned for a
child’s best interests. In 1789 in Powel v. Cleaver,114 a case most accurately
described as a probate matter, the court reviewed guardianship of a child and his
inheritance. An absent father had allowed the testator to care for and support his
son until the death of the testator, at which time the father reappeared to claim
guardianship of the child along with the child’s legacy left to him by the testator.115
110
Id. at 23–27.
111
See infra notes 112–114.
112
(1763) 97 Eng. Rep. 913, 914 (K.B.).
113
(1774) 98 Eng. Rep. 899 (K.B.).
114
(1789) 29 Eng. Rep. 274 (Ch.).
115
Id. at 276. The facts are clearly stated in the record.
Mr. Roberts, the father, during Mr. Powel’s life, permitted the children to be brought up
by, and at the expence of Mr. Powel.
The problem was that such a claim of guardianship by the father would divest the
child of that legacy, and the Lord Chancellor “would not suffer the feelings of the
parents to have effect against that duty which the interest of the child required.” 116
In determining the outcome, the court distinguished this case from the absolute
paternal authority of parent over child by considering the competing interests of
parent and child and the parent’s rights in the context of a child’s provision of
wealth.117
With much discussion of satisfaction of legacy and other probate terms, and
further distinctions made in this case from that of parent and child, the court ruled
strictly in terms of a finding that would not bring detriment to the child, the
provision for his support, or his social status.118 The Chancellor noted that “he
would not allow the colour of parental authority to work the ruin of his child.”119
Thus, it appeared in Powel that the best interests of the child heir prevailed over
any parental authority.120 Because Powel occurred outside a custody context, it is
not generally considered when discussing the foundations of the best interests of
the child as a legal standard. It has merit, however, to the foundations of that legal
standard nonetheless, as it assisted the decline of the unfettered absolute rights of
parents. Furthermore, the perception of children as chattel appeared to weaken as
children came to be viewed as something much more and very different by the end
of the 1700s.121
If Devall, Blisset’s and Powel were sparks for British courts to use a new
standard of welfare for children, they were quickly doused in 1804 by blanket
judicial reinforcement of the paternal preference, regardless of the child’s interests
Since Mr. Powel’s death, Mr. Roberts has himself taken benefit under the will of Mr.
Powel.
The will expressly directs, that the guardianship of the three sons of Mr. Roberts shall
be in the hands of Mr. Power’s executors.
The maintenance to the eldest son is given, expressly, on the condition, that Mr.
Roberts permits the guardianship to be with the executors.
Id. at 540.
116
Id. at 276 (citing Lord Eldon, C., 10 Ves. 63, 64).
117
Id. at 277. The father, Mr. Roberts, had willingly allowed Mr. Powel, the testator, to care for
and raise his son.
It is material. . . to consider whether a parent can insist upon his full right of
guardianship, where by so insisting on that right against the condition of a legacy to
them, such legacy may be forfeited.
Such being the case, I do not see how the Court can gratify Mr. Roberts by suffering
him to resist Mr. Powel’s disposition of the guardianship, unless it shall be the Court’s
opinion, that the authority of a parent as guardian to his children cannot be transferred
except by abuse of the authority.
Id.
118
Id. at 283.
119
Id.
120
The court’s powers to change guardianship for parental unfitness were also clearly stated. “It
is quite settled, that the Court will not only control a father in the management and the possession of
his child, under circumstances, but altogether remove the child from his influence if he is a depraved
person.” Id.
121
GROSSBERG, supra note 4, at 237.
or needs, in the historic case of De Manneville v. De Manneville.122 Despite the fact

that it might be best for a nursing infant child of eleven months to remain with his
mother, the court had no problem removing the child from the mother’s care and
giving custody to the father, as a matter of law. “The law is clear, that the custody
of a child, of whatever age, belongs to the father, if he chooses.”123 De Manneville
clarified and emphasized that a British court cannot interfere with a father’s right
to his child.124 Any trend set out in Powel was negligible in De Manneville,125 and
certainly did not pertain to a custody dispute between mother and father. Across
the Atlantic Ocean, however, the jurisprudence was forming much differently.
In 1809, a North Carolina father of a five year old girl put his wife of ten
years out of their home to bring in his paramour, with whom he lived in open
adultery.126 Though fearful of defying the authority of the common law, the court
was incensed by the injustice of the paternal rule as applied to these facts,
rationalizing that the responsibility of enforcing the common law was to be passed
on to higher courts than itself.127 That court’s opinion did not use language setting
forth the child’s best interests as the legal standard for its decision, but the court
was clearly disturbed that the father’s actions were not those that warranted a court
122
(1804) 32 Eng. Rep. 762 (Ch.). See also King v. De Manneville, (1804) 102 Eng. Rep. 1054
(K.B.). “Subsequent English cases ignored the best interests principle altogether and confined the
ruling in Blisset’s Case to its facts.” Klaff, supra note 63, at 338.
123
(1804) 32 Eng. Rep. 762, 764 (Ch.).
124
Id. An extremely thorough examination of the De Manneville case is contained in Danaya C.
Wright, De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy, 17
L. & HIST. REV. 247 (2006), available at http://www.hitory.cooperative.org/journals/lhr/17.2/wright.
html. Wright agrees with the surmise that the best interests of the child were not part of the custody
rationale of British courts in the nineteenth century, stating that “custody law did not address the
rights of women or the interests of children until the last few decades of the nineteenth century. At
the same time, by resisting the adoption of a best interests standard, the law promoted the
maintenance of strong patriarchal hierarchies in many nineteenth-century marriages.” Id. at 250. It
seemed that courts in England were using common law rules to foster a best interests standard, but
that was merely an appearance.
Although the courts, as parens patriae, paid lip service to a “best interests of the child”
doctrine in the early nineteenth century, which included a version of the “tender years”
doctrine, no court interferences with paternal rights during this period recognized an
independent right in the mother to have custody or access to her children in the event of a
separation, divorce, or forfeiture.
Id. at 248–49. Asserting that the maternal presumption took hold in the jurisprudence by the end of
the nineteenth century, Wright emphasizes that even that was merely shrouded in best interests
language: “But despite a rhetoric of children’s interests that infused the legislative and judicial
treatment of mothers’ claims, the difficulty of reconciling paternal and maternal rights prevented
significant reform for many years. The best interests test was not codified until 1925 as the principal
criterion for making custodial awards.” Id. at 249.
125
“The court at no time considered the interests of the child.” Wright, supra note 124, at 259.
At most, the best interests language was used as a façade for coverture. Id. at 247–49. Coverture is
the concept that “mother and children were under cover of the husband/father, and he reigned
supreme.” Joanne Ross Wilder, Religion and Best Interests in Custody Cases, 18 J. AM. ACAD.
MATRIM. L. 211, 212 (2002).
126
Prather v. Prather, 4 S.C. Eq. Desau. (4 Des.) 33 (1809).
127
Id. at 44. “[T]he Court is apprised that it is treading on new and dangerous grounds, but feels
a consolation in the reflection that if it errs, there is a tribunal wherein the error can be redressed.” Id.
to trust him with custody of his little girl.128 This was a major departure from the
common law paternal preference.
In 1815, a Pennsylvania father sought custody of his two daughters, nine and
twelve, in Commonwealth v. Addicks.129 In this case, the court took clear note of its
discretion in determining the application of the rules of law at hand.130 The
children’s custody had initially been awarded to the mother “when, on account of
the tender age of the infants, it was judged improper to take them from the
mother.”131 Three years later in the father’s plea for custody modification, each
parent presented arguments based in the welfare of the child: the father arguing
that the children’s best interest and their future moral core would best be served by
understanding that their mother’s morals were corrupt in her adultery;132 and the
adulterous mother arguing that the children’s interests would best be served by
continuity of their custody with her, as (despite her adultery) she was a good
mother.133 The court was most persuaded by the father’s moral arguments that the
children needed to understand the sacredness of the marriage vow.134 Nonetheless,
128
Id. at 45.
129
5 Binn. 520 (Pa. 1815).
130
Id. at 521. “We are not confined to an abstract question on the rights of guardianship, but are
to determine according to our discretion, on the expedience of delivering the infants to the custody of
the father.” Id.
131
Id. (“The law was, at that time, fully considered and declared by the court.”).
132
It is worth noting that the court was somewhat sympathetic with the mother’s situation
which led her to the adulterous act, which was a criminal act at that time. “She is said to have
received a good education in a convent in Canada, and having been married, by her mother’s
command, at too early an age, to a man with whom she had no previous acquaintance, she
discovered, too late, that neither her years, her habits, her education nor her disposition accorded with
those of her husband, hence, her guilt and her misfortunes; she may be pitied, but cannot be
justified.” Id.
133
Id. The mother argued that she had no other flaws but for her adultery, which culminated in
a marriage to the man, though illegal due to the prohibition on remarriage after divorce for adultery at
that time in Pennsylvania. Counsel for the mother argued that the court had previously acknowledged
the mother’s adultery when it originally awarded custody of the children to her. Though due largely
to their tender age, he contended that continuity and stability (both with their mother and with this
court) for the children was paramount to their best interests.
The conduct of the mother, he said, was known to the court, when they made their former
order. That it was censurable in the highest degree, must be admitted; but there were
many circumstances of extenuation, and as the morals as well as the learning of the
children had been carefully attended to, while they were under her management, there
were strong reasons for permitting them to remain with her, particularly as the youngest
was but nine years old. If they were suffered to be carried to New York, they would be
withdrawn from the superintendence of this court which might be essential to their
welfare.
Id. at 520.
134
Id. at 521.
What effect will the decision of this court have on the morals of these children, from
whom the unfortunate history of their parents can be no longer concealed? If they are
permitted to remain with their mother, will they not conclude that her conduct is
approved? There is one circumstance, which has great weight with me: I am satisfied,
that either from books, from conversation, or from the unfortunate speculation of her own
mind, the mother has fallen into a fatal error, on a fundamental point of morals—the
in the face of a change of custody to the father for the girls’ “future welfare,”135 the
court recommended no “abrupt removal” from their mother “but to conduct the
matter so as to avoid a violent shock either to them or their mother.”136
Addicks appears to be the first use of the best interests of the child as a legal
standard. The court had used the most ardent common law rule of paternal
preference and pitted it against the developing doctrine of tender years, combining
such an analysis with its own discretion, to ultimately determine what would work
to the greatest welfare of the children.137 Used for transferring custody from the
mother of children of tender years to their father once they came to be of age to
form moral opinions, the court’s rationale rests on the importance of children
understanding the seriousness of the marriage commitment and how that affects a
child’s moral base.138
In step with the concept of determining what was best for the children, the
court made it absolutely clear that part of that which was best for the children was
that the siblings not be separated.139 Some scholars argue that Addicks presents the
concept of the best interests of the child as a rationale for the tender years doctrine,
“a view which was theoretically, if not in actual practice, child-focused.”140 Indeed,
the tender years presumption is encased in the best interests standard, but the latter
offers much more discretionary latitude.141
obligation of the marriage contract. It is the more incumbent on us, therefore, to guard the
children against the consequences of this pernicious mistake, and to fortify their minds,
by inspiring them with fixed principles on this essential article.
Id.
135
Id.
136
Id. Even with this caution, taking into account an easier transition for the children, the court
clearly believed that particularly the eldest child was of a critical age to learn morality, in that “every
moment is important; and the education of the next three years will probably be decisive of her fate.”
Id.
137
See generally id. (finding paternal custody in best interests of the child when the mother had
committed a prior bad act, regardless of the tender years doctrine).
138
Id.
At the present moment, they may not reflect on the subject, but they soon will’ and when
they inquire, why it was that they were separated from their mother, they will be taught,
as far as our opinions can teach them, that in good fortune or in bad, in sickness or in
health, in happiness or in misery, the marriage contract, unless dissolved by the law of the
country, is sacred and inviolable. For these reasons, and many others which it is
unnecessary to mention, I am of opinion, that the children should be delivered to their
father.
Id.
139
Id. “[I]t is important that the sisters should not be separated; when we decide for one,
therefore, we must decide for both.” Id.
140
Wilder, supra note 125, at 212. Arguing that the tender years doctrine presented a maternal
preference that could be easily overcome by the mother’s unfitness, particularly in adultery, Wilder
argues that a mother’s adultery was the kiss of death to any authentic best interests analysis. “Even at
its genesis, the best interests of the child doctrine was misleadingly cast [in Addicks]. … Although
the mother claimed that the father was abusive, the court ended its inquiry with the mother’s
adultery.” Id. at 213; see also Klaff, supra note 63, at 340–41 (arguing that the two doctrines, tender
years and best interests, were first introduced in Addicks).
141
Klaff, supra note 63, at 342, 349–53 (demonstrating through case history analysis that the
tender years presumption is generally overcome with a showing of the mother’s unfitness, more
English courts, however, continued to hold strictly to the paternal preference

rule again in 1824. An imprisoned father living in adultery had taken his six year
old child from the child’s mother by “stratagem and fraud” in Ex parte Skinner.142
After a discussion of guardianship by parens patriae resting in the King’s Bench to
have jurisdiction to control the right of the father to the possession of his child, 143
the court’s ruling relied heavily on De Manneville and completely adhered to
common law principles of paternal parental rights, concluding that the father had a
right to take his child from the mother and the court had no authority to interfere in
the case.144 There was no discussion of how the child’s welfare might be affected
by the adulterous convict father’s rights. Clearly, no trend towards a new legal
standard for children was established by Powel or any other case in Great Britain’s
courts. De Manneville ruled the day.
Simultaneously, across the Atlantic the hard and fast paternal presumption
was challenged in Rhode Island by the new emerging and formidable standard of
the welfare of the child in United States v. Green.145 Upon the motion of the father
asserting his paternal rights by law, the court saw an obligation to look at all the
facts at issue in determining the proper application of that right, and a “wide
discussion arose as to the right of the father to have the custody of the infant under
the circumstances of the case.”146 Parents’ rights to protect children were
inalienable, but not absolute when circumstances endangered the child.147
The Green court declared that the rights of the parent existed for the benefit of
the child and were subordinate to the child’s welfare when it was endangered.148
The court proclaimed that its own discretion was the basis for proper application of
particularly her adultery).

142
(1824) 9 Moore 278, 278 (K.B.).
143
Id. at 279–80. The court cited several other cases in agreement, and one opposing opinion:
Independently of these authorities, Blisset’s case is decision to shew, that if the father
appear to be an improper person to have the custody of his child, and it be of too tender
years to choose for itself, the Court of King’s Bench has a discretionary power to assign
the custody of the child to a third person.
Id. The court here used its discretion in applying the common law rules alone.
144
Id. at 282.
145
2 D.C. (2 Cranch) 520 (1824).
146
Id. at 31.
147
Id. at 31–32.
As to the question of the right of the father to have the custody of his infant child, in a
general sense it is true. But this is not on account of any absolute right of the father, but
for the benefit of the infant, the law presuming it to be for its interests to be under the
nurture and care of his natural protector, both for maintenance and education. When,
therefore, the court is asked to lend its aid to put the infant into the custody of the father,
and to withdraw him from other persons, it will look into all the circumstances, and
ascertain whether it will be for the real, permanent interests of the infant and if the infant
be of sufficient discretion, it will also consult its personal wishes. It will free it from all
undue restraint, and endeavour, as far as possible, to administer a conscientious, parental
duty with reference to its welfare.
Id.
148
Id. at 32.
common law rules. 149 The best interest of the child as a legal standard was gaining
momentum by judicial discretion.
In 1834, Massachusetts followed suit in Commonwealth v. Wales Briggs,
when it declared “the good of the child is to be regarded as the predominant
consideration.”150 This effectively proclaimed that any parental right was based on
the parents’ duty to act in the best interests of the young child. Upon review of the
facts and circumstances, the court did not find the father intemperate nor unfit, nor
had the mother filed for divorce,151 which allowed the court to see it in the child’s
best interests to not interfere with the writ and allowed the rules to work together
to govern and regard the good of the child. The Briggs court saw the best interests
standard as inherent in the legal rights vested in parents.152 The best interest of the
child as a legal standard was not a new rule, but a purpose for applying the existing
rules regarding children.
The same could not be said of England, as the courts there were embroiled in
a conflict between applying the common law rules toward near absurdity and a
common sense reform of the rules. “Unlike the American courts, King’s Bench
judges were reluctant to depart from precedent and contravene the father’s right to
custody even in a very compelling case.”153 In the 1839 case of Rex v. Greenhill, a
mother took her children from the marital home where the father had moved in his
paramour, and the father brought a habeas corpus writ to the court to reclaim the
custody of his children.154 “Although it was obvious to the court that the husband
was using the children to force the wife to return to the marital residence without
having to give up his extramarital liaison, the court saw no alternative to granting
custody of the children to their father.”155 England’s courts continued to apply the
149
“It is an entire mistake to suppose the court is at all events bound to deliver over the infant
to his father, or that the latter has an absolute vested right in the custody.” Id. Interestingly, the court
even cited De Manneville as not inconsistent with that doctrine, asserting that the holding in De
Manneville “supposes its existence. The court there thought it for the interest of the child to give the
custody to the father.” Id. This case likened American judicial discretion to English authority of the
king, as parens patriae.
150
33 Mass. (16 Pick.) 203, 205 (1834). (citing the traditional common law rules of paternal
preference and coverture, and relying on both De Manneville and Addicks, in an action by the state
for habeas corpus for the child which the mother took from the marital home alleging the father’s
intemperance, the court stated that the application of the common law rules or the tender years
doctrine were to be done so with the child’s interest dominating).
As a general rule, the writ of habeas corpus, and all action upon it, are governed by the
judicial discretion of the Court, in directing which all the circumstances are to be taken
into consideration. In the case of a child of tender years, the good of the child is to be
regarded as the predominant consideration.
Id.
151
Id. The court saw that the unjustifiable family separation was not good for the child. “The
unauthorized separation of the wife from her husband without any apparent justifiable cause, is a
strong reason why the child should not be restored to her.” Id.
152
Id.
153
Wilder, supra note 125, at 213.
154
(1836) 111 Eng. Rep. 922, 922 (K.B.).
155
Wilder, supra note 125, at 213. This ruling so appalled a lawyer in the case, Lord Talfourd,
that he succeeded in a three year campaign to reform the law which ended in the British Parliament
paternal presumption to their own discredit, and most likely to the harm of children
and women as well.
Meanwhile, a year later in America, the nascent standard for children was
setting deep roots. In 1840, a New York court in Mercein v. Barry laid out the
conundrum that these conflicting legal rules brewed.156 The trial court had applied
a pure paternal preference finding custody of the baby girl in the father, but upon
review that decision was reversed, based upon an apparent application of the
tender years presumption being better for the child.157 The court was very clear as
to the standard it felt it should apply. “The interest of the infant is deemed
paramount to the claims of both parents. This is the predominant question which is
to be considered by the court or tribunal before whom the infant is brought. The
rights of the parents must in all cases yield to the interests and welfare of the
infant.”158 The Mercein court viewed the BIC standard as an American
legislating an exception to the paternal preference rule that formed the basis of the tender years
doctrine. Id. at 213–14, That legislation became known as Lord Talfourd’s Act: An Act to Amend the
Law as to the Custody of Infants, 1839, 2 & 3 Vict., c. 54, 343–44 (Eng.).
156
25 Wend. 64 (N.Y. 1840).
157
Id.
[W]hen the parents live apart under a voluntary separation, and the father has left an
infant child in the custody of its mother, such custody will not be transferred to the father
by the process of habeas corpus, when the infant is of tender age, and of a delicate and
sickly habit, peculiarly requiring a mother’s care and attention.
Id. at 240 (emphasis in original).
Because the father had agreed to leave the infant with its mother and she returned to her own father’s
household, the court would not remove custody of the child to his father, even though he was “then
being a subject of the king of Great Britain, intermarried in the city of New-York. . . .” Id. at 241. The
court set out very clearly that it was applying the best interest standard.
[T]he great principle which runs through nearly all the American and the earlier English
cases, is that which is stated by Thompson, Ch. J. in the mater of Waldron, 13 Johns. 418,
when speaking of the custody of the infant, in the case of the claim made by the father, to
such custody, viz: “It is the benefit and welfare of the infant to which the attention of the
court ought principally to be directed.” As a necessary result of this principle, it follows
that the custody of infant children must always be regulated by judicial discretion,
exercised in reference to their best interests.
Id. at 257 (emphasis in original).
158
Id. The view the court had of its responsibility as parens patriae is worthy of repeating here.
By the law of nature, the father has no paramount right to the custody of his child. . . .
There is no parental authority independent of the supreme power of the state. But the
former is derived altogether from the latter. In the civil state there is no inequality
between the father and mother. . . . [then a few sentences regarding the importance of
tender years]. It seems then, that by the law of nature, the father has no paramount
inalienable right to the custody of his child. And some civil or municipal law in setting
bounds to his parental authority, and in entirely or partially depriving him of it in cases
where the interests and welfare of his child require it, does not come in conflict with or
subvert any of the principles of the natural law. The moment a child is born, it owes
allegiance to the government of the country of its birth, and is entitled to the protection of
that government. And such government is obligated by its duty of protection, to consult
the welfare, comfort and interests of such child in regulating its custody during the period
of its minority.
Id. at 257.
development refined out of earlier English law, but also (even unwittingly) began
setting children as adversaries against their parents.
Mercein was upheld in the federal circuit court for the Southern District of
New York.159 Reviewed again in the Supreme Court of the United States seven
years later, the Court recognized that there was no legal reason to grant a writ of
habeas, nor had they jurisdiction to change the ruling.160 The High Court took the
opportunity, however, to recognize and affirm the duty of the state courts “to make
such orders as will be for the benefit of the child. . . .”161 Distinguishing a child’s
welfare from a child’s liberty interest,162 the legal standard regarding children was
that all parties and their respective rights, particularly parents in their parental
rights, were under an obligation to act in the best interests of the child. Mercein
placed a crowning culmination on early American jurisprudence regarding
children. The language in Mercein can seem intimidating and broad, granting
sweeping authority to a court over a child and his or her family in such a fashion
that the case seems to have at once crowned the best interests standard, peaked its
credibility, and begun its decline toward the greatest concern over the best interests
standard itself—judicial overreach abridging inalienable parent rights.163
Addicks, Green, Briggs and Mercein form a foundation of cases that set the
framework for the best interests of the child as the legal standard applied to cases
regarding children. Before the middle of the 1800s, this new and emerging
American family law jurisprudence placed a duty to children upon parents and
courts paramount to common law rules which were previously dictated by parental
rights alone.
After this series of American decisions regarding children, English courts
seriously began to apply rules designed to work for the protection of children. For
example, in 1851 rather than purely and legalistically deferring to the paternal
preference, even when a father was acquitted of a crime, he was denied custody of
his children, based on what the court deemed in the children’s best interest. 164 In
Anonymous, a clergy father of six left his home and was charged and apprehended
159
Id.
160
Barry v. Mercein, 46 U.S. (5 How.) 103 (1847). Indeed, the Court noted that family matters
were outside, even above, the jurisdiction of the Supreme Court of the United States and reviewable
as defined by act of Congress only when the dispute exceeds $2,000.
In the case before us, the controversy is between the father and mother of an infant
daughter. They are living separate from each other, and each claiming the right to the
custody, care, and society of their child. This is the matter in dispute. And it is evidently
utterly incapable of being reduced to any pecuniary standard of value, as it rises superior
to money considerations.
Id. at 120.
161
Id. at 116.
162
Id. at 116. “It is not a question of the personal liberty of the child, but of its custody and
nurture. It is not in substance at all that great writ of English or American liberty, but a great
extension, if not entire perversion, of its object.” Id.
163
“[T]he viewpoint reflected in this quotation perhaps is not a utilitarian one. Maybe it reflects
yet another natural law—the State as the supreme arbiter of all relationships.” Mercer, supra note 57,
at 20.
164
Anonymous (1851) 61 Eng. Rep. 260 (Ch.).
“for the commission of an unnatural crime, but no witnesses appearing he was

acquitted.”165 The best interests of the children trumped the father’s rights to
custody, “for the protection of the children themselves.”166
Another area of law regarding children took an immediate and radical
departure from a basic concept of Roman law, in that the primary concern for the
welfare of the child was reflected in American adoption statutory law.167 The first
adoption law in the United States was endorsed in Massachusetts in 1851.168 This
first-of-its-kind American law emphasized the needs of the adopted child with the
objective of benefiting minor children in need of parents.169 Thus began the
American concept of adoption, firmly based in the best interests of the child. It set
the tone for adoption statutes in the rest of the country.170 Evidencing momentum
for the new doctrine regarding children’s interests, the Massachusetts Legislature
codified the parents’ rights as they related to the best interests standard in 1855.
“‘[T]he rights of the parents to their children, in the absence of misconduct, are
equal, and the happiness and welfare of the children are to determine the care and
custody.’”171
The New Jersey case of Baird v. Baird demonstrates how solid the BIC
standard was becoming in American family law by 1869. 172 Saddened by the
court’s intrusion into the “private household” and reviewing the facts, the court
noted that its ruling was based on “its general jurisdiction over the interests of
165
Id. at 54. When the father returned to reclaim custody of his children, the court considered
the positive qualifications of their mother in the care of the children and the negative reputation and
social effects on the children due to “bearing the name of the said petitioner,” as one charged with
such a heinous (yet unnamed) crime. Id. at 62. “[T]hat were any communication known to exist
between the said children and their father, they would be wholly excluded from respectable society.”
Id. at 63–64.
166
Anonymous is also reprinted in JOEL BISHOP, 2 BISHOP ON MARRIAGE 444 (1873).
When the Court refuses to give possession of his children to the father, it is the
paramount duty of the Court to do so for the protection of the children themselves, and
the Court will perform that duty if the father has so conducted himself as that it will not
be for the benefit of the infants that they should be delivered to him—or if their being
with him will affect their happiness—of if they cannot associate with him without moral
contamination—or if, because they associate with him, other persons will shun their
society.
2 Sim. (N.S.) at 69.
167
Post, supra note 69, at 151–52. For example, Justinian was adopted by his uncle so he could
become emperor of Rome. WALTER WADLINGTON & RAYMOND D. O’BRIEN, FAMILY LAW IN PERSPECTIVE
198 (2001). Post argues that Christianity and its virtues were what caused this change in adoption
tradition to favor what was best for the child. Post, supra note 69, at 152.
168
MASS. GEN. LAWS ANN. ch. 324 § 752 (West 1854); see also WADLINGTON & O’BRIEN, supra
note 167, at 198.
169
See MASS. GEN. LAWS ANN. ch. 324 § 752; see also WADLINGTON & O’BRIEN, supra note 167,
at 198 (noting that adoption’s objective was to benefit minor children in need of parents).
170
WADLINGTON & O’BRIEN, supra note 167, at 198. Today throughout the United States,
adoption is child centered rather than adult centered in every State’s codified adoption laws. Id.
171
Reprinted in MAXWELL H. BLOOMFIELD, AMERICAN LAWYERS IN A CHANGING SOCIETY 119 (1976)
(citation omitted).
172
21 N.J. Eq. 384 (1869).
infants. It is upon this principle, therefore, that the case must be determined.” 173
Not having abandoned the common law, but rather upholding its value, at least in
dicta, the New Jersey court affirmed again that the paternal preference rule was
subordinate to the best interests of the child.174
This decision was transparently based on the best interests standard.175 In this
court of equity, strict law was not as important as the welfare of the child. At
common law the paternal presumption prevailed. Remnants of that presumption
continued in parts of American law, but was eventually overcome by the new
standard courts were applying regarding the best interests of the child.
By 1870, the Illinois Supreme Court found guaranteed due process protection
to children in the state’s constitution in People ex rel. O’Conner v. Turner.176 A
post-Civil War concept of rights of persons inured to children. Legislation in
Illinois that allowed the imprisonment of a fourteen year old boy in a Chicago
Reform School, even when his father had filed a writ of habeas challenging the
boy’s confinement, was deemed unconstitutional and not in the child’s welfare.177
Though some scholars argue that it was with Turner that cases regarding children
turned toward a rights approach, others argue that the case and its progeny were an
extension of judicial understanding of the needs of children. 178 Rather than focus
on a rights analysis, it is clear the jurisprudence was developing for a century prior
that placed the interests of the child as paramount in a court of law. 179 This
173
Id.
174
The court’s effort to balance the competing rights is apparent in the
opinion.
On such an occasion it is not the dry, technical right of the father, but the welfare of the
child, which will form the substantial basis of judgment. The legal right of the father will
not be passed by, except when, in the opinion of the court, the well-being of the child
requires such supersedure. The application under such circumstances is, obviously, an
appeal to the discretion of the court… In the present case, the duty of arbitrating thus
between the claims of these rival parents, in view of the best interests of the children, it is
felt to be one of painful responsibility.
Id.
175
Id. Application of the BIC as a legal standard caused a strong dissent, which argued that the
ruling departed from established common law in that only a child’s tender years or a father’s
unfitness can overcome the paternal presumption under law. Id. at *6.
176
55 Ill. 280, *5 (1870).
177
For a thorough review and analysis of Turner see David S. Tanenhaus, Between
Dependency and Liberty: The Conundrum of Children’s Rights in the Gilded Age, 23 L. & HIST. REV.
351, 355–70 (2005).
178
Id. at 370–79. Still other scholars argue that substantive rights for children were not
recognized until much later. See Theresa Glennon & Robert G. Schwartz, Foreword: Looking Back,
Looking Ahead: The Evolution of Children’s Rights, 68 TEMPLE L. REV. 1557, 1559 (1995) (arguing
that Brown v. Board of Education, 347 U.S. 483 (1954), and In re Gault, 387 U.S. 1 (1967), were the
first cases involving children’s rights); Barbara Bennett Woodhouse, “Who Owns the Child?”: Meyer
and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1058 (1992) (contending that
children’s rights cases were first brought by African Americans to challenge school segregation laws
at the turn of the century).
179
Tanenhaus, supra note 177, at 384. Tanenhaus contends that a rights focus fixated on more
recent history of the late twentieth century ignores earlier historical illuminations on matters
pertaining to children. Id. at 385. Needs of children as manifested in duties owed to them by adults is
approach was followed and expanded upon in the 1877 Ohio case of Clark v.
Bayer, where that court ruled that it need not be constrained by the rights of the
parents in a custody dispute, but would look to an analysis of the best and highest
interests of the child alone. 180 In Clark, the BIC concept nearly outgrew all other
rules of law.
The concept of the best interests of the child spread with the westward
expansion of America. The Kansas Supreme Court in 1881 recognized the welfare
of the child as the overriding consideration in Chapsky v. Wood.181 The Kansas
court struggled with the common law rules, but settled on the overriding interests
of what was best for the children.182
The trend toward the new legal standard for children took time to occur, but
was acknowledged as a change in the law as it had been previously known.183 The
best interests of the child was recognized as a legal standard that maintained
continuity for children, and often worked in tandem with the presumption favoring
biological parents. The BIC standard became quite formidable when the new
standard was used to overturn the natural parent presumption. 184 In 1889, a New
a clear thread in the cases traced here from 1789.

180
32 Ohio St. 299, 305 (Ohio 1877).
181
26 Kan. 650, *2 (Kan. 1881).
[When a] child has been left for years in the care and custody of others, who have
discharged all the obligations of support and care which naturally rest upon the parent,
then, whether the courts will enforce the father’s right to the custody of the child, will
depend mainly upon the question whether such custody will promote the welfare and
interest of such child. This distinction must be recognized.
Id.
182
Id.
The right of the father must be considered; the right of the one who has filled the parental
place for years should be considered. Perhaps it may not be technically correct to speak
of that as a right; and yet, they who have for years filled the place of the parent, have
discharged all the obligations of care and support, and especially when they have
discharged these duties during those years of infancy when the burden is especially
heavy, when the labor and care are of a kind whose value cannot be expressed in money
—when all these labors have been performed and the child has bloomed into bright and
happy girlhood, it is but fair and proper that their previous faithfulness, and the interest
and affection which these labors have created in them, should be respected. Above all
things, the paramount consideration is, what will promote the welfare of the child?. . .
. . . What the future of the child will be, is a question of probability. No one is wise
enough to forecast, or determine absolutely, what or what would not be best for it; yet we
have to act upon these probabilities from the testimony before us, guided by the ordinary
laws of human experience.
Id. at *2–3.
183
GUGGENHEIM, supra note 1, at 144.
As late as the 1880s, in many states men continued to enjoy a presumptive right to their
children’s custody. In 1883, for example, the North Carolina Supreme Court first
changed the rule of fathers’ rights in custody disputes. It did so by focusing on children,
not women. In justifying this change of focus, the court stressed that numerous courts
were moving way from notions of “strict legal rights of parents” and “look more to the
interests” of children, making them “their paramount consideration.
Id. (citing GROSSBERG, supra note 4, at 225).
184
GOLDSTEIN ET AL., supra note 104, at 102–03.
Jersey court noted in Richard v. Collins, that the judges’ task is to “fix the future
status of the child [] with some stability and permanence.”185 Although the court
stated that natural parents have superior rights, it recognized the child’s need for
continuity and ruled for continuing custody with long term foster parents.186
The Richard case was discussed at length by Goldstein, Solnit and Freud in
their book Beyond the Best Interests. “Courts have from time to time recognized
that the earlier presumptive preferences could be overturned if applying them
would not serve the child’s need for continuity of care.”187
As this chronicle of case law demonstrates, by the end of the nineteenth
century the BIC standard was quite developed. Some scholars believe it began to
take away parental authority and was responsible for largely reducing the rights of
parents generally.188 Apparently expanding the governance of the family by the
courts, this in turn greatly broadened judicial discretion in regard to “the true
interest of each child.”189
Some ambiguity is apparent in a review of additional cases regarding whether
the best interests of the child analysis was more rights oriented than welfare
oriented. In 1886, the Virginia case of Merritt v. Swimley found a court reasoning
that “the rights of the child” are first to be considered in a custody proceeding,
allowing the court to rely on the child’s wishes in its custody determination.190 A
similar outcome was reached in Kentucky in 1875 in Ellis v. Jesup, where a child’s
choice controlled the matter of custody.191 Still other courts objected to such legal
185
17 A. 831, 832 (N.J. 1889).
186
“In controversy over its [the child] possession, its welfare will be paramount consideration
in controlling the discretion of the court.” Id. at 832.
187
GOLDSTEIN ET AL., supra note 104, at 187 (discussing Richard v. Collins). Richard v. Collins
became precedent for using the best interests of a child as the legal standard in New Jersey; see, e.g.,
Smith v. Smith, 7 A.2d 829 (N.J. Ch. 1939) (consulting child’s wishes to the extent that it would
serve the best interests analysis).
Because the mechanical application of the presumption would not serve its purpose, the
court was willing to overturn it. Similarly, the Supreme Court of Kansas, in an earlier
case, overturned the presumption in favor of fathers, after recognizing that evidence of
the past performance of the parents and foster parents was the best guide to determine the
custody of the child.
GOLDSTEIN ET AL., supra note 104, at 192 (referring to Chapsky v. Wood, 26 Kan. 650 (1881)).
188
GROSSBERG, supra note 4, at 254–71.
189
JAMES SCHOULER, 2 MARRIAGE, DIVORCE, SEPARATION AND DOMESTIC RELATIONS 2025–26 (1870).
An example of this broadened judicial discretion is found in Jacobson v. Massachusetts, a 1905 case
upholding the constitutionality of a compulsory smallpox vaccination law. 197 U.S. 11, 27–39
(1905).
190
82 Va. 433, 4 (Va. 1886). Another case that same year in Virginia held that the court should
exercise its discretion, but could look to the child’s wishes as a factor in that determination. Coffee v.
Black, 82 Va. 567 (Va. 1886).
191
74 Ky. (11 Bush) 403, *7–8 (Ky. 1875). The court reasoned that the child was of proper age
to make such a decision since she was 13. Id.; see also Marshall v. Reams, 14 So. 95, 95–97 (Fla.
1893) (granting the wishes of a child of 16 because the court found that such a decision was in the
best interest of the minor).
rationale, ruling that an exercise of the court’s discretion allowed the court to
disregard the child’s wishes and look solely to the welfare of the children.192
These cases also reveal how the best interest analysis was a tool of judicial
discretion as it was used in some jurisdictions to allow a child’s wishes to be a
factor in a custody ruling, but in other jurisdictions to deny a child’s wishes when
the court deemed the child a poor judge of what was best for him or her.193 The use
of rights for children tended to posture their interests against those of their parents.
Though parents’ rights to direct the upbringing of their children were affirmed
in Meyer v. Nebraska194 and Pierce v. Society of Sisters,195 it was limited in Prince
v. Massachusetts.196 Increased judicial discretion in cases regarding children
affected numerous families.
The widespread desire to use the law to encourage proper family life led
to statutory directives and judicial decisions that subjected parents and
children to ever-tightening controls… The standards placed all parents—
including mothers—and custodians at the mercy of judicial assessments
of their capacity to rear the nation’s free citizens.197
Much of the law regarding children started to become known as ‘child welfare
reform,’ and was boosted by the rise of the first family court in Buffalo, New York
in 1909, setting the trend for a family court system in each state jurisdiction. 198
Also based on this review, it is clear that the BIC standard was the foundation for
the tender years presumption—a doctrine that favored the mother’s custody of the
children when they were young.199 Paternal preference completely gave way in late
1890s to the presumption that children need their mothers more (than fathers) in
tender years. This tender years presumption prevailed in many jurisdictions where
laws were established stating that mothers were presumptively entitled to
custody.200 This presumption, which could only be overcome by evidence of
192
See, e.g., Ex Parte Reed, 19 S.C. 604, *1 (S.C. 1883) (noting that the wishes of the child
were disregarded as contrary to the child’s best interests); Shaw v. Nachtwey, 43 Iowa 653 (Iowa
1876) (same).
193
For a very thorough overview of cases that considered a child’s wishes as a factor in
awarding (or denying) custody see D.W. O’Neill, Child’s Wishes as Factor in Awarding Custody, 4
A.L.R.3d 1396 (originally published in 1965).
194
262 U.S. 390, 401–03 (1923) (finding parents a have right to direct the upbringing of
children, even to learn German language in the post WWI era).
195
268 U. S. 510, 534–35 (1925) (finding parents have a right to direct the education of
children, which includes the choice for private religious education).
196
321 U.S. 158, 166–67 (1944) (recognizing “a private realm of family life which the state
cannot enter” but limiting that constitutional protection when a guardian took her nine year old ward
canvassing for the Watchtower, which the court found in violation of child labor laws).
197
GROSSBERG, supra note 4, at 283.
198
SUSAN TIFFIN, IN WHOSE BEST INTEREST?: CHILD WELFARE REFORM IN THE PROGRESSIVE ERA 160
(1982).
199
WARDLE & NOLAN, supra note 62, at 858–89.
200
Id.
unfitness, continued to be the law in many jurisdictions until the 1980s.201 Making
custody decisions based on children’s needs often meant keeping kids with their
mothers, but also meant the continued broadening of the state’s interests in its
future citizens.202
The court was often the final arbiter on what it took to raise responsible
citizens, and those decisions rested on pure discretion, or “intuition.”203 “A judge’s
intuition is a judges’ discretion to decide, independent of the parties’ wishes or the
dictate of a pre-ordained law.”204 This type of jurisprudence pushed the best
interests standard to be so completely dependent on judicial discretion. It
apparently and cleverly led to a movement for children’s rights.
The landmark decision finding constitutional rights for children came from
the Supreme Court of the United States in 1967 in the case of In re Gault.205 The
most important children’s rights case in American history, Gault recognized a
child’s right to procedural (due process) safeguards.206 “The Court attacked
juvenile court as an institution established to help children but which rarely met its
lofty purposes.” 207 Parents’ rights, however, were then reaffirmed in Wisconsin v.
Yoder, where Amish parents were not required to comply with the state’s
compulsory education after eighth grade under the due process precedents of
parental rights established in Meyer and Pierce. 208
Constitutional concerns over gender equality then entered the scene, when
equal protection clause claims of gender preference brought about the initial
demise of the tender years doctrine. Courts ruled that there could be no preference
or presumption based on gender, and the concept of tender years was replaced with
a presumption that afforded a custody award in divorce to the parent who was the
primary caregiver to the child during the marriage.209 This primary caretaker
presumption abolished all gender based presumptions for custody.210 Remnants of
201
Cf. Ex parte Devine, 398 So. 2d 686, 697 (Ala. 1981) (holding that the “tender years
presumption represents an unconstitutional gender-based classification which discriminates between
fathers and mothers in child custody proceedings solely on the basis of sex”).
202
SUZANNE RAMOS, THE COMPLETE BOOK OF CHILD CUSTODY 35 (1979).
203
See A.C. Ewing, Ethical Intuitionism, in AN INTRODUCTION TO ETHICS 161, 164 (Robert Dewey
& Robert Hurlbutt III eds., 1977).
204
Mercer, supra note 57, at 25. “In sum, the best interests standard could be viewed as a form
of ethical egoism—serving the greatest good of the State.” Id.
205
In re Gault, 387 U.S. 1, 71–72 (1967).
206
Id.
207
GUGGENHEIM, supra note 1, at 7.
208
406 U.S. 205, 205–06 (1972).
209
See generally Marcia O’Kelly, Blessing the Tie that Binds: Preference for the Primary
Caretaker as Custodian, 63 N.D. L. REV. 481, 483–84 (1987) (discussing the significance of primary
caretaking in North Dakota custody contests between two fit parents of children too young to express
their own preference).
210
Oregon’s statutory and case law on custody provide a good example, as the primary
caretaker presumption was shaped by Derby v. Derby, 571 P.2d 562, 564 (Or. Ct. App. 1977),
modified on other grounds, 572 P.2d 1080 (Or. Ct. App. 1977). This case recognized the primary
care-giving parent (regardless of gender). The rule was later codified as a presumption at OR. REV.
STAT. §107.137(3) (1981) (no preference for mother over father) and OR. REV. STAT. §107.137(4)
the tender years doctrine, however, do continue today,211 and this doctrine is
fostered ardently by some feminist family law scholars.212 Yet the best interest of
the child doctrine remains the standard legal doctrine, even if only a refrain.
The free reign of judicial discretion in the name of the best interests of the
child led to some states codifying their standards, either by defining the standard,
or by listing guidelines and factors to be considered, or using both techniques. 213
Statutes of individual states are sometimes criticized for the same reasons that the
BIC standard is disparaged.214 Attempts to balance codification of the BIC standard
and case law with parental rights are evident in some cases. The New York case of
Bennett v. Jeffreys ruled that both the BIC and parents’ rights are to safeguard
stability and continuity for children.215
In invoking the ‘best interests of the child,’ the Legislature did not intend
to disregard the ties between the child and its natural parent, or to
threaten a satisfactory family with loss of children because by reason of
temporary adversity they are placed in foster care. A parent cannot be
deprived unless some affirmative reason is shown for doing so such as a
finding. . . of a separation so long as to permit very strong bonds to
develop between the child and the prospective adoptive parents.216
(1994) (no preference for father over mother).

211
See, e.g., Hollon v. Hollon, 784 So. 2d 943, 947 (Miss. 2001) (reaffirming a weakened
version of the tender years doctrine, in which a preference for maternal custody is considered merely
a factor along with other evidence hearing on the child’s best interests).
212
See, e.g., MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER
TWENTIETH CENTURY TRAGEDIES 12–28, 176–93 (2002).
213
See generally CHILD WELFARE INFORMATION GATEWAY, U.S. DEPT. OF HEALTH & HUMAN SERVS.,
DETERMINING THE BEST INTERESTS OF THE CHILD: SUMMARY OF STATE LAWS passim (July 2005), available at
http://www.childwelfare.gov/systemwide/laws_policies/statutes/best_interstall. pdf (summarizing the
Best Interest of The Child laws in all 50 states, and other U.S. jurisdictions) [hereinafter SUMMARY OF
STATE LAWS]. Statutory codification of the BIC standard occurred in West Virginia in 1980 with an
initial draft of a BIC definition (but with no guidelines). W. VA. CODE § 48-2-15 (1980). Oregon
incorporated interdisciplinary knowledge of child development, and listed factors with guidelines.
OR. REV. STAT. § 107.137 (1981). The Connecticut Supreme Court defended that state’s codification
of the best interest standard despite the clear guidelines in Seymour v. Seymour, 433 A.2d 1005, 1007
(Conn. 1980) (listing factors the court considered in determining the BIC which were followed in
case law thereafter). “We continue to adhere to the view that the legislature was acting wisely in
leaving the delicate and difficult process of fact-finding in family matters to flexible, individualized
adjudication of the particular facts of each case without the constraint of objective guidelines.” Id. at
1007. The West Virginia statute was redrafted to give judges more detailed guidance in determining
the best interests of a child in relation to custody or visitation. W. VA. CODE § 20-124.3 (1994).
214
See, e.g., Raymon Zapata, Child Custody in Texas and the Best Interest Standard: In the
Best Interest of Whom? 6 SCHOLAR 197, 203 (2003) (discussing the application of Texas’ statute and
how factors listed in the statue fail to be analyzed in some high profile cases).
215
356 N.E.2d 277, 283 (N.Y. 1976) (holding that the best interests of the child can only be
considered after extraordinary parental circumstances affecting the welfare of the child have been
established).
216
In re New England Home for Little Wanderers, 328 N.E.2d 854, 861 (Mass. 1975).
Today, every state has a statute requiring that the child’s best interests be
considered whenever decisions regarding a child’s placement are made.217 The
foundations of the BIC doctrine show how important this standard is to American
family law, yet application of the standard has been, and remains, where the
problems lie.
IV. APPLICATION (OR NOT) OF THE LEGAL FOUNDATIONS
The conflict of rights between parents and children, the state’s sometimes
hazy role as parens patriae, the spectrum of judicial discretion, and the lack of
definition and guidelines have all leant to the difficulty of applying the BIC
standard. Great latitude in judicial discretion is not only allowed by these conflicts,
but in many cases is required to sort out the law in light of the facts. Nonetheless,
that discretion is not arbitrary, nor capricious, nor unlimited, but grounded in the
principles set out in Section I, and sought to be applied in the cases outlined in
Section II. Judicial discretion does indeed afford flexibility.218
Not all family law scholars are convinced that the BIC standard is the best
way to decide legal matters regarding children. Professor Robert Mnookin has
strongly argued against the use of the best interests of the child standard on the
basis that it is too indeterminate to be of use in legal decisions,219 calling the notion
“idealistic, virtuous,” and a high sounding self-deception requiring “a highly
individualized choice between alternatives.”220 Mnookin argues that not only is
there no consensus on what is ‘best,’ but the ability to predict what judicial ruling
will produce the best results for children is never actually possible, as the court
always will lack all the information necessary to make an objective decision.221
Others agree with this assessment, even calling the best interests principle “unjust,
self-defeating,” neglecting the rights and needs of parents, subjecting the interests
217
For a listing of each state’s code, see SUMMARY OF STATE LAWS, supra note 213.
218
“The emphasis placed on meeting the needs of the individual child through the application
of the best interest standard is demonstrated by the flexibility required by the standard.” BREEN, supra
note 39, at 86. Even new reproductive technology is demanding a legal standard by which to
determine the fate of frozen embryos. See Fotini Antonia Skouvakis, Defining the Undefined: Using
a Best Interests Approach to Decide the Fate of Cryopreserved Preembryos in Pennsylvania, 109
PENN. ST. L. REV. 885, 903–05 (advocating a best interests analysis be applicable to frozen embryos
rather than other state statutes which may or may not apply because “it is the public policy of
Pennsylvania to favor childbirth over abortion” (citing 62 PA. CONS. STAT. § 453 (2003)). Louisiana
has provided a statutory answer that codifies the best interest application to fertilized ovum. Id. at 890
(noting also that New Jersey is the only other state that has proposed, but not passed, a similar
statute).
219
See generally ROBERT MNOOKIN, IN THE INTERESTS OF CHILDREN 517–27 (1985).
220
BREEN, supra note 39, at 54 (citing Robert Mnookin & E. Szwed, The Best Interests
Syndrome and the Allocation of Power in Child Care, in PROVIDING CIVIL JUSTICE FOR CHILDREN 8, 8 (H.
Geach & E. Szwed, eds., 1983)).
221
WARDLE & NOLAN, supra note 62, at 863–64. “Courts may be in the poorest position of all to
know what the facts are; custody decisions are based on short hearings (if any testimony), with heavy
reliance on paid experts.” LYNN D. WARDLE, THE BIC STANDARD, CUSTODY PRESUMPTIONS 3,
http://www.law2.byu.edu/Wardle/FundPrinsFamL/36CUSTOD.htm (last visited May 22, 2006).
of children to policy considerations, and generally leaving children worse off.222

Historical family law scholar Claire Breen deems the BIC standard as important
not only to the foundations of the jurisprudence surrounding children, but
appreciates the dynamics of a BIC analysis as part of its very strength.
[T]he best interests standard may be described as a strand of tradition,

which, it is suggested, should become the guiding tradition in the meta-
tradition of societal cohesion as those traditions that coalesce to form the
meta-tradition are to be regarded as dynamic and amenable to change.
An approach such as this would allow for the reconstruction of any
erroneous interpretation of the message contained in the tradition of best
interests. ‘New beginnings’ are possible for best interests.223
The naturally human limit of any judge is a point of contention that fosters
criticism for BIC rulings. For example, in the 1976 Maryland case of Ross v.
Hoffman the court recognized its own limits in that the knowledge of judges is
insufficient to “fix a period for which a parent may [cast] off the robe of parental
responsibility both inwardly and outwardly, before forfeiting the judicially
espoused presumptive shield provided a natural parent.”224 Furthermore, many
judges view parenting in gender terms. “So even though the child custody law is
gender-neutral, some judges maintain a firm belief in biologically driven gender
differences in parenting abilities and openly admit that this belief may affect their
decisions.”225 This school of thought argues that the BIC standard benefits mothers,
as “many judges equate the child’s best interests with mother custody, especially if
the child is an infant.”226 The problem is the BIC standard is supposed to benefit
children.
The present child-centered doctrine has its problems, particularly when third
parties fight parents for custody,227 or when judges are left on their own to decide
the matter.228 The outcome in some circumstances has been a reinterpretation of the
best interests of the child standard. It has been used to justify trends toward joint
222
See, e.g., JON ELSTER, SOLOMONIC JUDGEMENTS: STUDIES IN THE LIMITATIONS OF RATIONALITY 123–29
(1989); Jon Elster, Solomonic Judgements: Against the Best Interests of the Child, 54 UNIV. CHICAGO
L. REV. 1, 7 (1987).
223
BREEN, supra note 39, at 24. Breen’s suggestions for those new beginnings stem from a
theoretical approach that has implications beyond the scope of this paper when she adds: “However,
instead of criticizing the best interests standard and suggesting alternative—reinventing the ‘best
interests wheel’—more productive outcome might be achieved with a rethinking of. . . the child.” Id.
224
364 A.2d 596, 601–02 (Md. Ct. Spec. App. 1976).
225
See Julie E. Artis, Judging the Best Interests of the Child: Judges’ Accounts of the Tender
Years Doctrine, 38 LAW & SOC’Y REV. 769, 785 (2004) (showing statistics that report a persistence of
a maternal preference among family court judges).
226
Id. at 799.
227
See H. Joseph Gitlin, Defining the Best Interest of Children: Parents v. Others in Custody
Proceedings, 79 ILL B.J. 566, 567–71 (1991) (discussing how courts in Illinois are giving the BIC
standard increasing deference over traditional biological preferences in custody disputes, thereby
creating a “no fault” adoption system).
228
A Connecticut court pronounced this problem more than six decades ago:
custody, even with an abusive parent and genetic surrogate rights, twisting a
standard for children to serve adults.229
In the two hundred years of American family law jurisprudence traced here, it
is apparent that judges and jurists were working hard to balance universal moral
law with welfare of children. They understood that children are best protected by
parents who have the inalienable right to do so, and that parents are the truest
protectors of their child’s best interests. The danger arises when the dicta of the
BIC doctrine is “used to justify any decision reached.”230 The ethics of judicial
discretion continue to be a concern of family law scholars.231 In People v. Osslo,
the court noted that:
An individual judge (as distinguished from a court) is not empowered to

retain jurisdiction of a cause. The cause is before the court, not the
individual judge of that court, and the jurisdiction which the judge
exercises is the jurisdiction of the court, not of the judge. Rules of court
which provide that posttrial proceedings in a cause shall be heard by the
judge who tried the matter are entirely proper, but the individual judge
cannot order that such proceedings must be heard by him.232
Some courts have tried to bridle and limit judicial discretion.233 Scholars have
attempted to make reforms to the judicial application of the BIC standard by
harnessing and directing a core set of factors.234
In effect, the trial [judge], as a basis for [his] findings, made of himself a witness, and in
making [these findings] availed himself of his personal knowledge; he became an
unsworn witness to material facts without the [parties] having any opportunity to cross-
examine, to offer countervailing evidence or to know upon what evidence the decision
would be made.
Kpovacs v. Szentes, 33 A.2d 124, 126 (Conn. 1943).
229
Carbone, supra note 7, at 731–32. This model of the State as parent was rejected by
conservatives and liberals alike in the 1970s, and it was closely linked with the BIC standard as a
façade for judicial positivism.
To characterize this transformation in summary fashion, there now exists a wide-spread
and acute suspicion of the very notion of doing good among widely divergent groups on
all points of the political spectrum. . . . To announce that you are prepared to intervene
for the best interests of some other person or party is guaranteed to provoke the quick,
even knee-jerk response that you are masking your true, self-interested, motives.
David J. Rothman, The State as Parent, in CONFLICT AND CONSENSUS IN MODERN AMERICAN HISTORY 257,
264 (Allen F. Davis & Harold D. Woodman eds., 5th ed, 1980).
230
Mercer, supra note 57, at 31 (emphasis in the original).
231
See generally Kathryn L. Mercer, The Ethics of Judicial Decision-Making Regarding the
Custody of Minor Children: Looking at the “Best Interests of the Child” and the “Primary
Caretaker” Standard as Utility Rules, 33 IDAHO L. REV. 389, 392 (1997) (examining how a judge’s
ethical framework influences custody awards under the BIC standard).
232
People v. Osslo, 323 P.2d 397, 413 (Cal. 1958).
233
In re Marriage of Matthews, 161 Cal. Rptr. 879, 881 (Cal. Ct. App. 1980) (stating that a
judge goes beyond his power to limit all future proceedings to be brought before him only).
234
See BREEN, supra note 39, at 45.
One of the main difficulties with the standard of the best interests of the child has been in
relation to the manner in which it is applied, which is in turn dependent upon the
The greatest concern with the best interests analysis lies with the judge who
makes it. BIC is criticized because it “allows a level of judicial discretion that is
difficult to reconcile with a historic commitment to the rule of law.”235 It is a well
settled law that the BIC standard merely means that the welfare of the child is of
paramount concern to the court and ought to be to the parents as well, but this
makes substantive decision-making very difficult for judges. Unless the state
legislature or previous case law has afforded the judge some guidance in terms of
key factors and elements to consider, his or her decision making process is
relatively unbridled, and therefore thoroughly subjective.236
Solutions are being promulgated. The rise of the guardian ad litem (GAL) has
offered hope for less judicial positivism regarding application of the BIC doctrine.
“Separate representation would ensure that the child’s best interests were
represented.”237 Some family law scholars have offered new solutions for applying
the BIC standard. The approximation rule, first promulgated by Professor
Elizabeth Scott, is one such concept.238 The approximation rule proposes to provide
a means of measuring the proportion of time parents spend with their children in
performing direct care-giving functions, and attempts to use and reflect that in a
custody decision after divorce.239 The American Law Institute adopted the
approximation rule as a guideline for judicial discretion in discerning the best
interests of a child in a custody dispute.240 Some argue that the approximation rule
is flawed in that it fails to consider how to provide for protection and security of
circumstances that surround each instance in which ‘best interests’ are to be determined.
In general, the following core set of factors need to be considered: first, the opinion of the
child and the members of its family; second, the child’s sense of time; third, the child’s
need for continuity; and finally, the risk of harm to the child. Those that have written in
the area of the best interests of the child have tended to focus on the above
considerations, albeit to greater and lesser extents, depending on the factor under
consideration.
Id.
235
Gary Crippen, Stumbling Beyond the Best Interests of the Child: Reexamining Child
Custody Standard-Setting in the Wake of Minnesota’s Four Year Experiment with the Primary
Caretaker Preference, 75 MINN. L. REV. 427, 500 (1990). Judge Crippen is an active member of the
Minnesota bar and judiciary.
236
Klaff, supra note 63, at 357 (arguing that presumptions at least have standards upon which
advocates and parents can rely in litigation).
If defining standards are not provided, the test is simply a grant of broad discretion to
trial judges to exercise their own views on what is best for children. Such a system has
obvious jurisprudential shortcomings. If every judge were at liberty to determine what
would be best for a child, then no case would have precedential value.
Id.
237
Mercer, supra note 57, at 30; see also M.J.J. McHale, The Proper Role of the Lawyer as
Legal Representative of the Child, 18 ALBERTA L. REV. 216, 219–20 (1980) (explaining the debate that
continues to surround the use of and duties of a guardian ad litem).
238
Elizabeth S. Scott, Pluralism, Parental Preference, and Child Custody, 80 CAL. L. REV. 615,
617 (1992) (proposing the approximation rule as a tangible way to apply the best interests standard).
239
Compare id. (setting forth approximation standard), with Shelley A. Riggs, Is the
Approximation Rule in the Child’s Best Interests? A Critique from the Perspective of Attachment
Theory, 43 FAM. CT. REV. 481, 481–82 (2005) (critiquing the assumptions and implications of the
approximation rule from the standpoint of attachment theory).
children who display classic attachment behavior from a quality attachment to a

caregiver.241 The approximation rule would not do well to completely replace the
BIC standard because of its pure quantitative measurement, but if applied with
additional evidence that shows which caregiver offers protection, security and love
to a child, it might assist judicial discretion as a guide in a custody decision.
A presumption-free environment is ultimately unrealistic. Every judge, by
virtue of his or her humanity, has inherent biases and uses various presumptions,
even if unconsciously, to make an initial award of custody, which will often be
extremely difficult to change on appeal. “Every custody litigator knows that the
judge is the most important witness in any custody case and strives hard to
identify, understand and address the biases which the judge brings to the decision-
making process.”242
Unbridled judicial discretion builds no good jurisprudence, and often
highlights judicial biases. Some of that bias is revealed in the fact that religion is
one ingredient that is frequently silenced, squelched or even denied in a custody
award, when it may be, though contrary to dominant cultural theory now
influencing family law, an important element of healthy childhood, certainly a part
of a child’s best interests. Children need parents to advocate on their behalf, and a
faith base can offer positive elements to the legal landscape.243 This can be a key
component to the healthy growth of a child.244
240
But cf. Joan B. Kelley, Developing Beneficial Parenting Plan Models for Children
Following Separation and Divorce, 19 J. AM. ACAD. MATRIM. LAW. 237, 241 (2005). Kelley argues
that adoption of this approximation rule is not an improvement on the BIC guidelines. Id.
241
See generally Riggs, supra note 239, 486–90 (arguing for more protection for children than
the approximation theory can provide based on evidence provided by classic attachment processes
research).
242
Wilder, supra note 125, at 214 (discussing judicial discretion in custody cases that present a
religious freedom element).
The least experienced custody litigator knows that a so-called presumption-free and
gender-neutral legal climate is at best wishful thinking and that the single most difficult
task facing the lawyer is to identify, isolate and either exploit or overcome the unstated
assumptions which pervade the decision-making process in every custody case.
Id. at 214.
243
Cf. DeVries, supra note 30, at 167. DeVries argues that current cultural, legal and political
struggles over children will continue until American Christians advocate on behalf of children, and to
resist what she calls the “instrumental valuation of childhood” that our culture currently adheres to.
Id. at 172. “The time has come for theology to recover the resources in both Bible and tradition for a
fully intrinsic valuation of childhood.” Id. at 167. A strong argument can be made that DeVries places
quite an overwhelming burden on children, however, to be our guides in this effort, when it is adults
who need to act to protect children from that burden by providing for their best interests in safely
reaching adulthood.
244
Cf. Jane R. Dickie et al., Parent-Child Relationships and Children’s Images of God, 36 J.
SCI. STUDY RELIGION 25, 25 (1997).
[C]hildren ages 4 through 11. . . indicated their perceptions of parents’ and God’s
nurturance and power and reported on discipline in the home. Despite differences
between the two samples in race, socioeconomic status, and religious affiliations,
remarkably consistent findings were demonstrated. When parents were perceived as
nurturing and powerful (especially when mother was perceived as powerful and father
was perceived as nurturing), children perceived God as both nurturing and powerful;. . .
In childhood, it is parents who directly and indirectly impact God-images.
Other family law scholars argue that the family has lost integrity because
marriage as a social institution is threatened.245 Protection of children by parents is
thereby diminished, and the well being of children is naturally affected. 246 In
reviewing Mary Ann Mason’s historical work on custody standards, Professor June
Carbone suggests that legislators and judges and the rest of society have struggled
to settle on a set of operating norms for litigation regarding children. 247 She argues
for these decisions to “take place within a framework set by assumptions about the
kind of family life society should promote,”248 and makes a case for marriage being
essential to a child’s best interests.249 Harvard Professor Mary Ann Glendon
projected decades ago that our system of family law was moving from one of
emphasizing the “unitary aspects of the family” to one that now emphasizes “the
separateness and individuality of the persons who are associated in families and
marriages.”250 These concerns have had serious negative implications for children
and their welfare. It remains a serious legal apprehension that the data shows a
failure of child formation in families.251 To respond to the needs of family
formation in America the law and society must see that “children are gifts of
creation, a hope for the future, and our present responsibility in stewardship.”252
Responsibility for children lies with parents first, and judges later if parents
abdicate their God-given roles.253 The ultimate goal of the best interests standard is
Id.
245
See, e.g., Carbone, supra note 7, at 733; see also Hafen supra note 99.
246
See Carbone, supra note 7, at 732–37; Duncan, supra note 93, at 1244. Duncan proposes
that we focus on the family unit by enforcing parental rights without jeopardizing the necessary
protections granted to children; holding firm to the best interest of the child standard, rather than
children’s rights which work to the detriment of the family upon which the child’s best interests rely.
Id. at 1290–94.
247
Carbone, supra note 7, at 732–34.
248
Id. at 733.
249
Id. at 733–35 (opposing Martha Fineman’s mother/child dyad promoted in her book THE
NEUTERED MOTHER, supra note 212, and the father’s rights approach to “replace marriage with
conception as the defining element of parenthood”).
250
MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW 102–03 (1989). Harvard law
professor Mary Ann Glendon serves now on the Council on Families in America, working to
strengthen marriage as a social institution. See also Duncan, supra note 93, at 1242.
251
See generally Todd David Whitmore, Children and the Problem of Formation in American
Families, 15 ANN. SOC’Y CHRISTIAN ETHICS 263, 264–68 (1995) (addressing the problem from the
Roman Catholic tradition in placing responsibility for children on parents, and presenting various
studies supporting the assertion that parents are spending too little time with their children to form
adequate relationships).
252
Id. at 274. Whitmore proffers that this thinking is already a part of the Catholic tradition and
merely needs to be taught and implemented in developed detail. Id. at 273–74.
253
In his dissent in Ex parte G.C., Justice Parker states his judicial view of this fact.
In fact, I believe the best interests of a child are served by strengthening the state’s
acknowledgment of, and deference to, parental rights, because God has specially and
uniquely equipped parents to raise their children so that any parent who possesses at least
some love can care for his or her child better than the state, which by its nature cannot
love. Consequently, the best interests of children are served by the state’s declining to
interfere with family government merely because its agents can, in individual cases,
conceive of ways to improve the lot of a particular child.
to preserve parent-child relations. Professor Lynn Wardle points out that “millions
of divorced couples are able to overcome their own conflicts and work together to
love and raise their children after divorce. That is the current policy and goal of
this area of law.”254 The foundation of the best interests standard is critical to this
discussion.
V. CONCLUSION
The application and use of the BIC doctrine over the course of American
jurisprudential history is evident in its careful development over the growth of the
nation’s laws. Rather than being a recent legal phenomenon of the past few
decades, the doctrine has been developed and rooted in American family law
jurisprudence for the past two hundred years. Though sparks of the BIC doctrine
began in natural law and influenced the common law in England, the standard is an
American-grown concept. Begun in case law and fostered in the soil of judicial
responsibility, it has been thoroughly sown into the fields of American family law
jurisprudence through statutes as well. May that sense of judicial responsibility be
edified by the discussion undertaken by this article. It is an attempt to offer an
opportunity for judicial reflection and a renewed vision for a future that truly seeks
to uphold the best interests of a child.
The BIC doctrine has indeed dramatically influenced family law
jurisprudence not only in America but globally as well, and that has had a dramatic
effect on the family. This article still does not presume to know what the best
interests of the child really are, but rather has illuminated the foundations of a
doctrine rooted in parental protection and manifested in a legal standard regarding
children to assist judicial decision-making for what is “best for a child.”
Ex parte G.C. Jr., 924 So. 2d 651, 685 (Ala. 2005).

254
WARDLE & NOLAN, supra note 62, at 866.

Tracing the Foundations of the Best Interests of the Child Standard

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Tracing the Foundations of the Best Interests of the Child

Standard in American Jurisprudence

Lynne Marie Kohm*

course of American jurisprudential history. Considering the doctrine’s foundations,

II. FOUNDATIONS OF THE JURISPRUDENCE OF THE BIC STANDARD

It is essential to begin any jurisprudence on children with historically

framework that underlies it.” Id. at 723.

exposing of young children, especially girls. Jewish and Christian writers

The biblical tradition prizes children as a blessing given by a gracious

At a time when societies viewed children primarily as products, consumers,

[F]ramed by the writings of John Locke at its beginning and of the

centre stage, there seems in the eighteenth century to be a degree of

century in England transformed the patria potestas jurisprudence toward a parens

The Romantic ideology of childhood began to influence public action in

These attitudes of concern for children were integrated with views on

framework of adoption, setting a completely new standard. “In contrast to Roman

Meanwhile in England, the Chancellor Lord Talfourd promoted the earliest

youngest of children75 and largely viewed as a product of natural law.76

The feebleness of infancy demands a continual protection. Everything

Out of this utilitarian jurisprudence that transformed much of England’s law

industrial revolution.81 “The ‘best interests of the child’ slowly developed as a

In effect the trial judge, as a basis for [his]findings, made of himself a

The colonial revolutionary generation was influenced by their commitment to

English judgments, but adhering, at least loosely, to natural law principles

III. CASE LAW IN PROGRESSION

or needs, in the historic case of De Manneville v. De Manneville.122 Despite the fact

English courts, however, continued to hold strictly to the paternal preference

particularly her adultery).

“for the commission of an unnatural crime, but no witnesses appearing he was

a clear thread in the cases traced here from 1789.

(1994) (no preference for father over mother).

IV. APPLICATION (OR NOT) OF THE LEGAL FOUNDATIONS

of children to policy considerations, and generally leaving children worse off.222

[T]he best interests standard may be described as a strand of tradition,

An individual judge (as distinguished from a court) is not empowered to

children who display classic attachment behavior from a quality attachment to a

Ex parte G.C. Jr., 924 So. 2d 651, 685 (Ala. 2005).

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