Tracing the Foundations of the Best Interests of the Child

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Tracing the Foundations of the Best Interests of the Child

Standard in American JurisprudenceLynne Marie Kohm*

INTRODUCTION

The best interests of the child doctrine is at once the most heralded, deridedand relied upon standard in family law today. It is heralded because it espouses thebest and highest standard; it is derided because it is necessarily subjective; and it isrelied 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 childprotective services. And in every case, a judge must decide what is best for anychild 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 unwarrantedpremise that judges are capable of making fine-tuned judgments about a childsbest interests.1

The dearth of scholarship, however, on the foundations of this best interestsstandard for children in American family law jurisprudence does not make thejudges job any easier. The best interests standard necessarily invites the judge torely on his or her own values and biases to decide the case in whatever way thejudge 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 todetermine what the best really is. Perhaps an investigation of the basics of thatdoctrine can help with this conundrum.

This article will examine the oldest and deepest foundations for the bestinterests of the child as a legal standard. It thoroughly investigates the judicial andstatutory rudimentary building blocks of the best interests of the child as a legalstandard, and discusses how that standard has developed and evolved over the

* Lynne Marie Kohm. John Brown McCarty Professor of Family Law, Regent UniversitySchool of Law. With sincere gratitude this article is made possible by a generous research stipendfrom the American Center for Law and Justice, and Regent University School of Law. This articletackles the question presented to me by Justice Tom Parker of the Alabama Supreme Court in hisdismay of not finding a resource that clearly sets forth the foundations of the best interests of thechild standard. Much gratitude for the excellent research in this article is extended to William Catoeand Eric Welsh, and to Nicholas Beckham for his insightful review and suggestions. My sincerethanks to each of these parties for making this work possible.

1 MARTIN GUGGENHEIM, WHATS WRONG WITH CHILDRENS RIGHTS 173 (2005). While theunderlying ideal and rhetoric are laudable, the unfortunate reality is that the enormous amounts oftime, money, and emotional energy expended in contested custody proceedings often hurt both

parents and children.Id.2Id. at 40.

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82 JOURNALOF LAW & FAMILY STUDIES [Vol. 10

course of American jurisprudential history. Considering the doctrines 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 reallyare, but rather it seeks to illuminate the foundations of that doctrine as a legalstandard regarding children, and to show how the doctrine can become twisted byadult interests. It concludes that the best interest of the child doctrine is uniquelyestablished in American law and has set the trend for the treatment of childrenthroughout the rest of the world today. Its application, however flawed, may besomehow improved upon with a thorough understanding of the doctrinesfoundations which this article presents.

The objective of this article is to serve judges and justices who must makedecisions and analyze facts and circumstances in light of the law of the bestinterest standard on matters relating to children. It is offered to restore the

foundations of American jurisprudence.3

Section I sets forth the initialunderpinnings of the doctrine of the best interests of the child standard, tracingantiquity to Common Law tradition, the Enlightenment and modern legal reform.Here, origins of the doctrine are uncovered and analyzed. Section II examines inchronological order the Anglo American case law that established the standard inAmerican jurisprudence, analyzing how the standard was developed, and why itbecame part of American family law much earlier than in any other nation. Thissection demonstrates a clear divergence between English law and American law inthe jurisprudential development of the best interest standard. Section III discussesthe 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 states statutes and

case law offering its own (somewhat) unique flavor to the law, states had acquiredsome rather universal laws regarding the family by the end of the nineteenthcentury, one of those being the best interests of the child standard. 4This is indeedthe legal standard for custody awards in 45 states. 5Though some historical family

3 Children are the future of every society, and certainly of America. When determining the bestinterest of a child, judges have more power in the palm of their hands than many may realize. Thisarticle seeks to give foundational guidance on using that power most judiciously in a restorativefashion. 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).

4See generally MICHAEL GROSSBERG, GOVERNINGTHE HEARTH: LAWAND THE FAMILY IN NINETEENTHCENTURY AMERICA xxii (1985). This concept of uniformity has been evident in many areas of familylaw, 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 thatdoctrinal 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 (198889) (describing thedevelopment of the law of parental duty in regards to child support).

5 U.S. COMMISSIONON CHILDAND FAMILY WELFARE PARENTING OUR CHILDREN: INTHE BEST INTERESTOFTHE NATION (1996), available athttp://www.copss.org/research/majority2.htm. Seven of the 45 Stateshave best interests of the child standards that do not include any specific factors to be evaluated in


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2008] BEST INTERESTSOFTHE CHILD 83

law scholars proffer that the best interests of the child doctrine originated in thiscountry in the 1960s,6 this article demonstrates that the best interests of the childstandard 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 developingstatutory law, but unbridled judicial discretion became the pattern for best interestsdecision-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 givencircumstances. This interplay has created an inescapable reliance upon the BICstandard that exists simultaneously with its derision because of the unfetterednature 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 globalfamily 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 greatlyinfluenced child law globally. The application of this standard, however, hasturned toward near pure judicial discretion in contemporary judging, causinglitigators and advocates to have no rule of law to rely upon. It has become apparentthat 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 thechild standard according to reliable rules of law based on the notion of the childsinterests, as guarded by those who have been divinely and inalienably charged toprotect those interests. The hope is that judges will use this information to wiselybase legal rulings regarding children not on the judges own values, nor on thevalues of the adults bringing the case, but authentically on the foundations of the

best interests of those children inherently and intrinsically vested with value andworth apart from the law. Without this underpinning, judges truly have animpossible 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 theseStates is left to judicial discretion and case law. The other States specify in statute various factors thatthe court should consider in determining the best interests of the child. Id. (using Title 722.23 3 ofthe 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 FATHERS PROPERTY TO CHILDRENS RIGHTS: THE HISTORY OFCHILD CUSTODY INTHE UNITED STATES 12126 (1994); Joel R. Brandes, Judging the Best Interests ofthe 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 thefirst case using the best interests of the child standard, and reviewing the application of the BICfactors 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 evaluatethe best interests of a particular child in the absence of guiding principles. June Carbone, ChildCustody and the Best Interests of ChildrenA Review of From Fathers Property To Childrens

Rights: The History of Child Custody in the United States, 29 FAM. L.Q. 721, 723 (1995). In fact, inreviewing Masons work, Professor Carbone pulls out the final historical lesson from Masons book:that the best interests principle is, although sometimes weaker, never stronger than the theoretical


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Court case reviewing a lower courts custody ruling with seven different opinionswritten 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 theBIC 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. FOUNDATIONSOFTHE JURISPRUDENCEOFTHE BIC STANDARD

It is essential to begin any jurisprudence on children with historicallytraditional concepts of children and childhood in global and Western culture andtheir legal roots. The concept of childhood in antiquity is intriguing and conflictingwhen viewed as an integration of the codes of ancient civilizations: the Jewishtradition, the Greco-Roman era, and early Christianity.

Ancient civilizations seem to heartily and ardently agree that children werespecial and deserving of protection, being the clear hope for the future. TheMaster said, Respect the young,9 and Children. . . should be lords of theatmosphere.10 Ancient Greece records Socratic reflections. Did not Socrates lovehis own children, though he did so as a free man and as one not forgetting that thegods have the first claim on our friendship?11 Ancient Rome records similarreflections that hint at a divine relationship between parent and child. Natureproduces a special love of offspring and [t]o live according to Nature is thesupreme good.12Indeed, even [g]reat reverence is owed to a child.13

The value of children has waxed and waned over the centuries. Roman lawplaced children under the authority of both parents and country, 14in the ownershipof their father.15Childrens 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 723.8Ex 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 relevantlegal precedents appear to be particularly unclear or inconsistent. . . . After considerablereflection, I have concluded that the primary cause of the Courts varied and oftenconflicting opinions in this case is disagreement over foundational issues that underlie themore 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

ILLUSTRATIONSOFTHE TAO, ANCIENT CHINESE, ANALECTS ix 22).10Id. at 101 (quoting Hindu, Janet, i. 8).

11Id. at 96 (quoting Greek, Epictetus, iii. 24).12Id. at 101 (quoting Roman, Cicero,DeOff. I.iv, andDe Legibus, I. xxi).13Id. 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,DeOff. I. vii).15 Joan B. Kelly, The Determination of Child Custody, 4 FUTURE CHILD. 121, 121 (1994),

available athttp://www.futureofchildren.org/usr_doc/vol4no1ART8.pdf.


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children.22 Furthermore, there are at least three references that liken childlikequalities to godly qualities,23 and at least fifteen scriptures that implore adults to belike children.24 Jesus points to Gods people as his children, or needing to be like

children, as a paradigm of Gods character and ways in the world. 25Though itdid not always permeate the Greco-Roman mindset, children are highly valued inJewish and Christian traditions. The historical Judeo-Christian influence regardingchildren 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 graciousGod, yet their social position is marginal, and they are vulnerable even toabuse in the name of good household management. It is therefore all themore 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 6:13 (obeying parents); Colossians 3:20 (obeying parents); I Timothy 3:4 (obeyingfather).

23 Among them are Matthew 11:25 (discussing Gods truth as revealed to children yet hiddenfrom 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 18:23 (statingyou must change to become as a child); John 1:12 (describing men and women as children of God);

John 12:36 (analogizingtrust as sons);Romans 8: 14, 16 (describing men and women as children ofGod); Romans 9:26 (describing sons of God); 2 Corinthians 6:18 (referring to Gods sons anddaughters); Galatians 3:26 (indicating sons of God); Galatians 4:56 (discussing rights as sons);

Hebrews 12:7 (indicating that God disciplines his people as sons); 1 John 3:1 (stating we should becalled sons of God).25 CARROLL,supra note 16, at 129.26Joel2:28 (describing sons and daughters as prophets);Psalms 127:45 (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, andforbid them not, to come unto me: for of such is the kingdom of heaven.); Mark10:14 (encouragingchildren to go to Jesus); Mark10:16 (describing Jesus taking children in his arms);Luke 18:16 (ButJesus called them unto him, and said, Suffer little children to come unto me, and forbid them not: forof such is the kingdom of God.); Acts 2:39 (describing promises to children);Hebrew 2:13 (statingGod gives children).

27Genesis 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 barrenwoman as a mother);Psalms 127:3 (indicating sons are a blessing); Isaiah 8:18 (stating children are

given by God).28Deuteronomy 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 Gods way); Isaiah 40:11 (stating God leads the young);Mark10:14 (stating children are promised the kingdom of God); Acts 2:39 (indicating children arethe promise of future hope);Ephesians 6:2 (indicating children are promised a long life for honoring

parents).


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children in a way that departs radically from this larger cultural andbiblical pattern.29

At a time when societies viewed children primarily as products, consumers,and burdens, the discourses of Jesus Christ regarding children provide a strikingcontrast to such modern theories.30 Let the children come to me, do not hinderthem; for to such belongs the kingdom of God. Truly I say to you, whoever doesnot receive the kingdom of God like a child shall not enter it. 31 The influence ofChristianity on the treatment of children was certain. Yet, despite the influence ofChristianity, the idea of childhood was lacking in medieval society. There was noconscious awareness of the particular nature of a child which distinguishes him orher from an adult.32 That is why, as soon as the child could live without theconstant solicitude of his mother, his nanny or his cradle rocker, he belonged toadult society.33This attitude permeated the law surrounding families.

Harold Bermans Law and Revolution draws on Augustinian foundation and

canon law to clarify that law and any legitimate legal system consists of the trio oflaw as the positive command of the law giver, a reflection of the universal morallaw, and an expression of the historical traditions of a people. 34This trio offers agood deal to an historical analysis of family law development. The ProtestantReformation entailed the reform of law with Philip Melanchtons method ofanalysis, from which derives the basic topics of our contemporary law schoolcurriculum, constitutional law and family law among them.35 Theology and itsreforms produced and shaped legal transformations. Calvinist-inspired reformsbecame the basis for the historical common law tradition, and Calvinist covenanttheology had a transforming effect on reform of private life. 36 These religiousreforms affected the culture and the law, and by the end of the seventeenth centurya 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 theywere naturally innocent and ought to be protected from anything that might disturbtheir modesty, causing a great change in manners [to] take place in the course ofthe seventeenth century. . . . An essential concept had won acceptance: that of theinnocence of childhood.38This apparently universal moral law combined with the

29 CARROLL,supra note 16, at 127.30 Dawn DeVries, Toward a Theology of Childhood, 55 INTERPRETATION 161, 16264 (April

2001).31Mark10:1415 (Rev. Standard).32 PHILIPPE ARIS, CENTURIESOF CHILDHOOD: A SOCIAL HISTORYOF FAMILY LIFE 128 (1962).33Id.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, LAWANDREVOLUTION (1983)). It was Bermans contribution to identify the context of these beginnings withinthe corresponding train of historical developments in Western Christendom.Id.

35Id.36Id.37 ARIS,supra note 32, at 129.38Id. at 110.


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positive commands of the Law Giver gave jurists a more illumined perspective ofchildren when they became involved in the law, becoming to some extent a part ofthe tradition of the time.

In the eighteenth century, though, there were still contrasting and conflictingviews of religious perspectives on children and their place in society, oftenincluding Christian elements based upon the continuing belief that the child wasessentially corrupt.39 Another Christian view presented the child as lacking inmaturity, where wisdom could be learned in the process of growing to maturity. 40

Yet another Christian tradition of Puritanism perceived children as essentiallyprone to a badness that required discipline and correction. Children were seen asbeing born with Original Sin, inheriting sinfulness of man, requiring education andconstraints of society to tame their sinful behavior.41 The New Testament image ofchildren seen as needing protection and love,42 combined with the Old Testamentview of the child as needing wisdom and guidance,43 all added up to an authenticsocio-legal concern for the development of each individual child.44

Philosophers like John Locke viewed children as having natural rights thatneed to be protected.45 He believed that children were not their parents propertybut Gods property. . . that children were destined to take their place in the moraland social order as individuals and that parents were obliged to bring their childrento a state where they were capable of independence.46 Locke regarded the child asa blank slate, neither good nor bad.47 Children needed education, in his school ofthought, to provide for the best way to produce rational adults out of immaturechildren.48 Jean Jacque Rousseau held to the concept of the child as pure, 49 yetcorrupted by society.50God makes all things good; man meddles with them andthey 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 ININTERNATIONALAND COMPARATIVE LAW 35 (2002).

40Id. at 3637.41Id. at 36 (citing D. ARCHARD, CHILDREN: RIGHTSAND 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 littleones should be lost.).

43See, e.g.,Proverbs 22:6 (NIV) (Train up a child in the way he should go and when he is oldhe will not turn from it.).

44 BREEN,supra note 39, at 37.45 JOHN LOCKE, TWO TREATISESOF GOVERNMENT 330 (1960) (citing specifically THE SECOND TREATISE

67). 46 BREEN,supra note 39, at 69.47Id. at 36.48Id. at 37.49Id. at 36.50Id. at 38.51Id. (citing JEAN JACQUES ROUSSEAU, MILE 5 (B. Foxley trans., J. M. Dent 1963)).


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of the Best Interest of the Child standard. Rather, it is more likely that an Americaninfluence in the English jurisprudence allowed the western development of the BICstandard. The standard of the best interests of the child may generally be

described as a principle deriving from Anglo-American family law.65The common law was brought to America with the colonists and continued tobe the basis of American law. Natural law arguments in favor of parental authorityand parents rights prevailed during the founding period of the new world. Godhad ordained it but also because nature had displayed itparental authority was believed to derive from the biological and physical realities of the humanconditions and, in particular, from the relationship of dependency which existedbetween the biological parents and their offspring.66

Children were still part of the American family economy, and thus, importantto the economy of a growing nation. The issue of child custody in the post-Revolutionary era (17791840) might be classified as a battle between competingstakeholders for the right to the childs earnings.67

The legal and social status of the child was transformed during the firstcentury of the new republic. While the transformation came slowly incontrast to the fast pace of political events or economic development, itwas nevertheless relentless. The colonial view of children as helpinghands in a labor-scarce economy gave way to a romantic, emotional viewof children, who were no longer legally akin to servants, under thecomplete control of their fathers or masters, but instead were deemed tohave interests of their own.68

More particularly, concern for the best interests of children was most apparentin 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 Protestantreform movements in order to provide for the welfare of dependent children as analternative to pitiful almshouses.69 This provided a formidable wave ofjurisprudence regarding children. The best interests standard was the American

64 WARDLE & NOLAN,supra note 62. Professors Wardle and Nolan explain the variations of thepresumption, the culturally reinforced idea that mothers should get custody of young children, andthe fact that most mothers personally assumed custody of their children without a contest. Id. at 85859.

65 BREEN, supra note 39, at 44. Admittedly, this is not the only interpretation that may beaccorded to the standard as inevitably the principle of the best interests of the child varies from regionto region and from culture to culture.Id. at 45.

66Id. at 148.67 Mercer,supra note 57, at 15.The stakeholders at this point were the child as an emerging adult, the state with itswelfare and utilitarian concerns, and the father. Children were regarded primarily asrevenue-generating property during the infancy of the United States. Parents farmed theirchildren 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, RITESOF PASSAGE 18 (1977)).68 MASON,supra note 6, at 50.


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framework of adoption, setting a completely new standard. In contrast to Romanlaw, which emphasized adoption as a means of establishing family heirs, Americanlaw sought to establish an institution to ameliorate the condition of the neglected

and dependent child. Inheritance rights were only incidentally considered.70 Thiswas in direct contrast to adoption in England which still followed Roman legalconcepts of adoption focused on purposes of inheritance. Our statutes, therefore,took an immediate and radical departure from a basic concept of Roman law inthat the primary concern of our laws was the welfare of the child rather thanconcern for the continuity of the family legacy.71 The American concept ofadoption was so based in the best interests of the child that it entailed a newmeaning for adoption: adoption was about finding a family for a child, rather thana child for a family.72 A uniquely American blend of antiquity, Christianity andsocio-legal reforms were forming an entirely new basis for family lawdevelopment 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 tophilanthropy, which in turn gave way to state action to rescue children from thestreet, from delinquency, from work and unfair labor.73

The solution to this and to the general problem of street children was toturn the delinquent once more into a child. This solution was aninternalisation of the Romantic belief that a proper childhood was theonly foundation for a tolerable adult life. Such a childhood was to befound only in the bound of a family, or a substitute family, upon whichthe child would depend for protection.. . .The child was gradually to berestored to the true position of childhood by being placed within afamily.74

Meanwhile in England, the Chancellor Lord Talfourd promoted the earliesttender years doctrine, intended for custody determinations of only the very

69 Stephen G. Post, Adoption Theologically Considered, 25 J. RELIG. ETHICS 149, 151 (Spring1997) (discussing the Christian tradition in adoption).

70Id. at 151 (citing Fred L. Kuhlman, Interstate Succession by and from the Adopted Child, 28WASH. U. L. Q. 221, 223 (1943)).

71Id. at 15152. Post argues that this adoption tradition favoring what was best for the childover what the family wanted is grounded in Christian tradition. Citing John Boswells The Kindnessof Strangers, Post says it appears that the American Protestant approach to adoption was consistentwith 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 inJewish religious identity.Id.

72See WARDLE & NOLAN,supra note 62, at 337. "This primary focus on the welfare of childrenwithout families distinguished American adoption from the classic Roman, civilian, and common lawapproaches, and set the standard which the world now follows. Thus, the heart of this child-centeredmodel of adoption was the creation of family relationships that imitated and were intended toreplicate the relationship that exists between parents and child(ren) in a birth (natural) family." Id.

73 BREEN,supra note 39, at 41.74Id. at 41 (citing CUNNINGHAM,supra note 52, at 13536).


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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 JeremyBentham sought to organize the countrys laws to place the general good above

that of the individual. This influenced the law regarding children. He argued forreforms based on the common good, which meant that children needed stateprotection.

The feebleness of infancy demands a continual protection. Everythingmust be done for an imperfect being, which as yet does nothing for itself.The complete development of its physical powers takes many years; thatof its intellectual faculties is still slower. At a certain age, it has alreadystrength and passions, without experience enough to regulate them. Toosensitive to present impulses, too negligent of the future, such a beingmust be kept under an authority more immediate than that of thelaws. . .77

Out of this utilitarian jurisprudence that transformed much of Englands lawon children, combined with a natural law foundation and the Americandevelopment of and emphasis on a best interests approach, a fresh jurisprudenceregarding children developed in the West.78 This has led many family law scholarsto view the BIC standard as a nineteenth century tradition.79

Throughout the nineteenth and into the twentieth century reformers andphilanthropists became deeply imbued with the Romantic belief that childhoodshould be happy.with recognition to be accorded to the special needs andcharacteristics of the child.80 Concern for child welfare in the late 1800s includedillegitimate children, as well as those children suffering from the effects of the

75

Kelly,supra note 15, at 122.76 MASON,supra note 6, at 50.77 1 JEREMY BENTHAM, THEORYOF 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 tothe state to protect and regulate the childs environment: The State could, and should, intervene to

promote the development of good citizens. Thus, by 1850, a duality existed between the growingstate intervention and the laissez-faire approach to private family maintenance.).

78 Mercer,supra note 57, at 19. Seegenerally BREEN,supra note 39. Critics of this theory arguethat the best interests of the child doctrine is more accurately considered as yet another example ofthe 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-centurylaw as creators of critical doctrine regarding the nature of legal reform during this era. MichaelGrossberg, Who Determines Childrens Best Interests?, 17 LAW & HIST. REV. 309, 312 (Summer1999).

79See 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 thecolonial period, there was a dramatic shift away from fathers common law rights tocustody and control of their children toward a modern emphasis on the best interests ofthe child, with a presumption in favor of mothers as the more nurturing parent. . . . Thechanging 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).


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industrial revolution.81 The best interests of the child slowly developed as alegal 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.82Over the eighteenth and nineteenth centuries the best interests of the childbecame a part of not only American family law jurisprudence, but juvenile justicejurisprudence as well. The juvenile justice criminal system in America, rather thancircumscribing the best interests of the child, essentially rested on the tradition ofbest interests standard, and is applied to the extent that the child is not transferredto adult criminal courts.83 Often the picture of the child as innocent and deservingprotection continues to exist alongside common law rules as to the criminalresponsibility of children.84 Scholars in this area of child law generally claim thatthe basis for juvenile justice is grounded in the BIC standard. Everything doneduring the course of a juvenile court proceeding, from arrest to disposition, isostensibly 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 interestsstandard in the juvenile justice system.86

Twentieth century jurists continued the development of the doctrine in caselaw across the nation, increasingly entrenching the BIC concept as a permanentfixture in family law.

The BIC standard began to spread internationally during the twentiethcentury. The rights of the child were first brought together in one internationally

81 MASON,supra note 6, at 30, 3442.82Id. 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 thenorm 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 isthe Other, the corrupt child, which has been the true object of the best interestsstandard. 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 BREEN,supra note 39, at 206.84Id. at 20. Breen sets out the common law rules:Such rules provided that there was an irrebuttable [sic] presumption that a child under theage of seven was incapable of forming criminal intent and thus could not be liable for hiscriminal acts. Children between the ages of seven and fourteen were also held to beincapable of forming criminal intent although this intention could be rebutted by showingthat the child was able to distinguish between right and wrong and had understood thenature of his act and that it was wrong. Finally, the law presumed that children fourteenyears old or older had the same criminal capacity as adults and, consequently, werealways liable for their criminal offenses.

Id. n.26 (citing WILLIAM BLACKSTONE, COMMENTARIESONTHE LAWSOF 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 FamilyLaw in the Best Interests of Children? (May 22, 2006), available athttp://www.yale.edu/ynhti/curriculum/units/1994/1/94.01.05.x.html.


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recognized text in 1924, when the Assembly of the League of Nations passed aresolution endorsing the Declaration of the Rights of the Childwhich had beenproclaimed the previous year by the Save the Children International Union, the

latter being a non-governmental body based in Geneva.87 These BIC traditionsoriginated in western law, but were universally promulgated through the UnitedNations Convention on the Rights of the Child.88 This was the triumph of auniquely American concept adopted by a global community of persons concernedfor childrens welfare. The standard has developed far beyond its originalconception as a principle of Anglo-American family law which is applied by statecourts and quasi-judicial tribunals in proceedings concerning matrimony, adoption,fostering, and the guardianship of minors.89 Indeed, the BIC standard has becomecritical in evaluating custody decisions in repatriation cases.90The doctrine has hada global impact, but also an impact on the legal evolution of the jurisprudencegenerally surrounding matters regarding the disposition and future of children,creating a new area of lawthat of childrens rights.91

A tension developed between notions of protectionism and autonomy inregards to childrens rights.92 From the BIC doctrine, childrens 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 NijhoffPublishers, 1992)) (The view that children were the (now valuable) property of their parentsremained well into the nineteenth century.); BREEN, supra note 39, at 43 (citing R.J.R. Levesque,

International Childrens Rights Grow Up: Implications for American Jurisprudence and DomesticPolicy, 24 CAL. W. INTL. L. J. 193, 197 (1994)). Breen notes the undercurrent of cultural relativismthat 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 theConvention). Failure to uphold the best interests standard is vividly displayed by the practice offemale 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 BREEN,supra note 39, at 16.89Id. 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. at148.

90 ELENA ROZZI, SAVETHE CHILDREN ITALY, THE EVALUATIONOFTHE BEST INTERESTSOFTHE CHILDINTHECHOICE BETWEEN REMAINING IN THE HOST COUNTRY AND REPATRIATION: A REFLECTION BASED ON THECONVENTIONONTHE RIGHTSOFTHE CHILD (2002).

91See BREEN,supra note 39, at 16.As the tradition of paternal supremacy waned, the non-interventionist tradition withregard to the child remained and was reflected in a balancing of parental rights whichresulted in a greater degree of equality between parents with regard to the upbringing oftheir children. This latter tradition concerning the rights of parents ultimately gave way tothe standard of the best interests of the child, a tradition which, although paternalistic innature, was based upon a greater degree of interventionism into family life. This

paternalistic approach has continued to exist somewhat uneasily alongside the tradition ofchildrens rights which has emerged more recently and which would appear to favour agreater degree of autonomy for the child.

Id.92 MASON,supra note 6, at 67.The rights based approach has attempted to determine the appropriateness of accordingrights to children whereby varying degrees of autonomy are granted to children. In


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developed, and out of that jurisprudence arose ardent support for children to bevested with rights of their own, creating an extreme chasm between children andtheir parents by presenting these rights in direct conflict with one another. As

courts and legislators have created newly recognized rights of children, theyalmost invariable have done so in the best interests of the child.93 Many believethis is the wrong direction if society is genuinely concerned about childrens bestinterests.94The misuse and overuse of this concept as a legal doctrine has actuallyresulted in children being further victimized at the hands of the State.95

Out of this forged autonomy rose the childrens rights movement of the1960s.96 From this movement rose the more subtle and insipid rampage of judicialdiscretion. The tradition of judicial discretion became so firmly imbedded thatmany judges often gave no more than lip service to precedent or even to legislationin their own state, but instead sought to probe tangled fact situations to discoverthe best interests of an individual child, which offered practical rather than legallycorrect results.97 Family law scholar and childrens advocate Martin Guggenheim

argues that it is sensible to believe that a child has a right to not be capable, ofbeing deemed capable to undertand his or her own rights,98 and this has become acore point in the scholarship against childrens rights.99

Social science has simultaneously gained respect and credibility in the legaldeterminations surrounding children and families in mid twentieth century familylaw. A landmark book built on the development of BIC jurisprudence written by alawyer, a social scientist researcher and a child psychologist, BEYOND THE BEST

contrast to the rights-based approach, the welfare argument has called for a protectionistapproach towards children, an example of which has already been seen in the academicdebate 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, CHILDRENS RIGHTS: CONTEMPORARY PERSPECTIVES 40 (Patricia A.

Vardin & Ilene N. Brody eds., 1979) (arguing that the state is manifestly inadequate to protectchildren 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 childautonomy 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 511.97 MASON,supra note 6, at 5960 (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 andused his own judicial discretion in determining the custody outcome, possibly joining the bestinterests bandwagon).

98 GUGGENHEIM,supra note 1, at x. Indeed, even Professor Guggenheim, who self-identifies as achild advocate is quite validly concerned over the falsity and manipulation of childrens rights.

As deeply as Ive always thought of myself as a childrens advocate, much of what I readand hear being advocated in furtherance of childrens rights seems to me misguided. Andyet, I continue to identify myself as a childrens advocate while rejecting much of whatfalls under the rubric of childrens rights.

Id.99See Bruce C. Hafen, Childrens Liberation and the New Egalitarianism: Some Reservations

about Abandoning Youth to Their Rights, 1976 BYU L. REV. 605, 656.


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INTERESTS OF THE CHILD,100 sought to question the BIC standard with newpromulgations of the psychological parent.101 Referring more to psychoanalytictheory regardless of the substantive laws or rules which governed custody,102 the

book brought social science and expert testimony powerfully into the judicialdecision-making process. It revolutionized child custody. The volume had a strongimpact on judges and lawyers alike,103 and seemed to build an attitude in the lawthat completely focused on children, seemingly to the disregard of parents and theprotection they naturally confer upon children. These authors followed up theirwork with another similar work, IN THE BEST INTERESTSOFTHE CHILD, which also hadan impact on family law,104 and attempted to swing back the pendulum toward amore balanced approach to parents and their children.105The greatest concern withthe use of BIC today is that application of the doctrine rests on the judges personalobservations 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 personalknowledge; he became an unsworn witness to material facts without the[parties] having any opportunity to cross-examine, to offercountervailing evidence or to know upon what evidence the decisionwould be made.106

The colonial revolutionary generation was influenced by their commitment tocommon law doctrines that conformed the Law of Nature, the Law of Reason andthe revealed Law of God essentially to a customary usage of natural lawprinciples.107 Post-revolutionary American jurisprudence demonstrated alegitimacy of statutes by individual sovereign states coexisting with common lawprinciples.108 Gaining a distinctly American flavor, the law began a transformation

which resulted in the underlying basis for the legitimacy of the common law inwhich 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 usedto mold legal doctrine and policy, suggesting a positivist path to broad judicialdiscretion where courts deemed the law to be what they said it was, departing from

100 JOSEPH GOLDSTEINETAL., BEYOND THE BEST INTERESTSOFTHE CHILD 38 (Free Press 1974).101 Patricia M. Wald, The Kindness of Strangers, 97 YALE L. J. 1477, 1478 (1988) (reviewing IN

THE BEST INTERESTSOFTHE CHILD).102Id. at 1477.103See 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 thefirst book).

104

JOSEPH GOLDSTEINETAL., IN THE BEST INTERESTSOFTHE CHILD 39 (Free Press 1986).105 Wald,supra note 101, at 148081.106 Kovacs v. Szentes, 33 A.2d 124, 126 (Conn. 1943).107Id. at 58 (quoting Daniel Dulany, THE RIGHTOFTHE INHABITANTSOF MARYLANDTOTHE BENEFIT

OFTHE ENGLISH LAWS (1728) in ST. G. SUOISSANT, THE ENGLISH STATUTESIN MARYLAND 82 (1903)).108 HOROWITZ,supra note 54, at 1820.109Id. at 22.


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English judgments, but adhering, at least loosely, to natural law principlesembedded in the common law.110 All of this occurred in the context of developingjudicial and statutory state law. The result is that American courts began to depart

from their British ancestral custom and develop their own standards and doctrinesvia judicial opinion based in natural principles.What becomes apparent in Section IIs analysis of these early cases is a sense

that some parts of the common law as applied to children were really errantcustomary 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 onjudicial discretion developed a strong legal doctrine in the best interests of thechild. Eventually codified, the BIC standard was often presumed and given veryloose statutory guidance. The case history that follows reveals that judicialdiscretion was not unbridled, but wisely employed in the development of the BICstandard, based in revelation and universal moral concepts integrated intoAmerican family law jurisprudence.

III. CASE LAWIN PROGRESSION

The birth and development of western child law jurisprudence began in thelate 1700s and early 1800s. Englands court documents record several casesdealing with matters that brought into question the legal rules regarding childrenand their worth and value.111 Among the rules questioned was that of absolutepaternal authority, which was taken to task by considering concerns for the child.Lord Mansfield was a pivotal actor clearing this path among the Kings Bench. InRex v. Devallin 1763, he ruled that the court was not required to order the childrenwho were subjects of a habeas writto be delivered to their father, but any decisionregarding custody was left to the discretion of the judges, according to the

circumstances that shall appear before them.112

In competing custody claims in Blissets Case in 1774, Mansfield allowed the child to remain with its motherbased on the publics concern for the education of the child, thus doing what wasbest for the child.113

Fifteen years later another court of the Kings Bench was concerned for achilds best interests. In 1789 in Powel v. Cleaver,114 a case most accuratelydescribed as a probate matter, the court reviewed guardianship of a child and hisinheritance. An absent father had allowed the testator to care for and support hisson until the death of the testator, at which time the father reappeared to claimguardianship of the child along with the childs legacy left to him by the testator.115

110Id. at 2327.

111Seeinfra notes 112114.112 (1763) 97 Eng. Rep. 913, 914 (K.B.).113 (1774) 98 Eng. Rep. 899 (K.B.).114 (1789) 29 Eng. Rep. 274 (Ch.).115Id. at 276. The facts are clearly stated in the record.Mr. Roberts, the father, during Mr. Powels life, permitted the children to be brought up

by, and at the expence of Mr. Powel.


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The problem was that such a claim of guardianship by the father would divest thechild of that legacy, and the Lord Chancellor would not suffer the feelings of theparents 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 absolutepaternal authority of parent over child by considering the competing interests ofparent and child and the parents rights in the context of a childs provision ofwealth.117

With much discussion of satisfaction of legacy and other probate terms, andfurther distinctions made in this case from that of parent and child, the court ruledstrictly in terms of a finding that would not bring detriment to the child, theprovision for his support, or his social status.118 The Chancellor noted that hewould not allow the colour of parental authority to work the ruin of his child. 119

Thus, it appeared in Powelthat the best interests of the child heir prevailed overany parental authority.120Because Poweloccurred outside a custody context, it isnot 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 legalstandard nonetheless, as it assisted the decline of the unfettered absolute rights ofparents. Furthermore, the perception of children as chattel appeared to weaken aschildren came to be viewed as something much more and very different by the endof the 1700s.121

IfDevall, Blissets and Powel were sparks for British courts to use a newstandard of welfare for children, they were quickly doused in 1804 by blanketjudicial reinforcement of the paternal preference, regardless of the childs interests

Since Mr. Powels 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. Powers 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 540.116Id. at 276 (citing Lord Eldon, C., 10 Ves. 63, 64).117Id. 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 tothem, such legacy may be forfeited.

Such being the case, I do not see how the Court can gratify Mr. Roberts by sufferinghim to resist Mr. Powels disposition of the guardianship, unless it shall be the Courtsopinion, that the authority of a parent as guardian to his children cannot be transferredexcept by abuse of the authority.

Id.

118Id. at 283.119Id.120 The courts 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 ofhis 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.


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or needs, in the historic case ofDe Manneville v. De Manneville.122 Despite the factthat it might be best for a nursing infant child of eleven months to remain with hismother, the court had no problem removing the child from the mothers care and

giving custody to the father, as a matter of law. The law is clear, that the custodyof a child, of whatever age, belongs to the father, if he chooses.123De Mannevilleclarified and emphasized that a British court cannot interfere with a fathers rightto his child.124 Any trend set out in Powelwas negligible inDe Manneville,125andcertainly did not pertain to a custody dispute between mother and father. Acrossthe 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 tenyears out of their home to bring in his paramour, with whom he lived in openadultery.126 Though fearful of defying the authority of the common law, the courtwas 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 passedon to higher courts than itself.127 That courts opinion did not use language setting

forth the childs best interests as the legal standard for its decision, but the courtwas clearly disturbed that the fathers 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 theruling in Blissets Case to its facts. Klaff,supra note 63, at 338.

123 (1804) 32 Eng. Rep. 762, 764 (Ch.).124Id. An extremely thorough examination of theDe Manneville case is contained in Danaya C.

Wright, De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy, 17L. & HIST. REV. 247 (2006), available athttp://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 custodyrationale of British courts in the nineteenth century, stating that custody law did not address therights of women or the interests of children until the last few decades of the nineteenth century. Atthe 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. Itseemed that courts in England were using common law rules to foster a best interests standard, butthat was merely an appearance.

Although the courts, as parens patriae, paid lip service to a best interests of the childdoctrine in the early nineteenth century, which included a version of the tender yearsdoctrine, no court interferences with paternal rights during this period recognized anindependent right in the mother to have custody or access to her children in the event of aseparation, divorce, or forfeiture.

Id. at 24849. Asserting that the maternal presumption took hold in the jurisprudence by the end ofthe nineteenth century, Wright emphasizes that even that was merely shrouded in best interestslanguage: But despite a rhetoric of childrens interests that infused the legislative and judicialtreatment of mothers claims, the difficulty of reconciling paternal and maternal rights preventedsignificant reform for many years. The best interests test was not codified until 1925 as the principalcriterion 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 faade for coverture. Id. at 24749. Coverture isthe concept that mother and children were under cover of the husband/father, and he reignedsupreme. 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).127Id. 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.


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to trust him with custody of his little girl.128This was a major departure from thecommon law paternal preference.

In 1815, a Pennsylvania father sought custody of his two daughters, nine and

twelve, in Commonwealth v. Addicks.129In this case, the court took clear note of itsdiscretion in determining the application of the rules of law at hand. 130 Thechildrens custody had initially been awarded to the mother when, on account ofthe tender age of the infants, it was judged improper to take them from themother.131 Three years later in the fathers plea for custody modification, eachparent presented arguments based in the welfare of the child: the father arguingthat the childrens best interest and their future moral core would best be served byunderstanding that their mothers morals were corrupt in her adultery;132 and theadulterous mother arguing that the childrens interests would best be served bycontinuity of their custody with her, as (despite her adultery) she was a goodmother.133 The court was most persuaded by the fathers moral arguments that thechildren needed to understand the sacredness of the marriage vow.134 Nonetheless,

128Id. at 45.129 5 Binn. 520 (Pa. 1815).130Id. 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 ofthe father.Id.

131Id. (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 mothers situation

which led her to the adulterous act, which was a criminal act at that time. She is said to havereceived a good education in a convent in Canada, and having been married, by her motherscommand, at too early an age, to a man with whom she had no previous acquaintance, shediscovered, too late, that neither her years, her habits, her education nor her disposition accorded withthose of her husband, hence, her guilt and her misfortunes; she may be pitied, but cannot be

justified.Id.133Id. 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 atthat time in Pennsylvania. Counsel for the mother argued that the court had previously acknowledgedthe mothers adultery when it originally awarded custody of the children to her. Though due largelyto their tender age, he contended that continuity and stability (both with their mother and with thiscourt) 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 formerorder. That it was censurable in the highest degree, must be admitted; but there weremany circumstances of extenuation, and as the morals as well as the learning of thechildren had been carefully attended to, while they were under her management, therewere strong reasons for permitting them to remain with her, particularly as the youngestwas but nine years old. If they were suffered to be carried to New York, they would bewithdrawn from the superintendence of this court which might be essential to theirwelfare.

Id. at 520.134Id. at 521.What effect will the decision of this court have on the morals of these children, fromwhom 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 isapproved? 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 ownmind, the mother has fallen into a fatal error, on a fundamental point of moralsthe


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in the face of a change of custody to the father for the girls future welfare,135thecourt recommended no abrupt removal from their mother but to conduct thematter 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 legalstandard. The court had used the most ardent common law rule of paternalpreference and pitted it against the developing doctrine of tender years, combiningsuch an analysis with its own discretion, to ultimately determine what would workto the greatest welfare of the children.137 Used for transferring custody from themother of children of tender years to their father once they came to be of age toform moral opinions, the courts rationale rests on the importance of childrenunderstanding the seriousness of the marriage commitment and how that affects achilds moral base.138

In step with the concept of determining what was best for the children, thecourt made it absolutely clear that part of that which was best for the children wasthat the siblings not be separated.139 Some scholars argue thatAddicks 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 latteroffers much more discretionary latitude.141

obligation of the marriage contract. It is the more incumbent on us, therefore, to guard thechildren against the consequences of this pernicious mistake, and to fortify their minds,

by inspiring them with fixed principles on this essential article.Id.

135Id.136Id. 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 everymoment is important; and the education of the next three years will probably be decisive of her fate.

Id.137

Seegenerally id. (finding paternal custody in best interests of the child when the mother hadcommitted a prior bad act, regardless of the tender years doctrine).138Id.At the present moment, they may not reflect on the subject, but they soon will and whenthey 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 inhealth, in happiness or in misery, the marriage contract, unless dissolved by the law of thecountry, is sacred and inviolable. For these reasons, and many others which it isunnecessary to mention, I am of opinion, that the children should be delivered to theirfather.

Id.139Id. [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 mothers unfitness, particularly in adultery, Wilderargues that a mothers adultery was the kiss of death to any authentic best interests analysis. Even atits genesis, the best interests of the child doctrine was misleadingly cast [in Addicks]. Althoughthe mother claimed that the father was abusive, the court ended its inquiry with the mothersadultery.Id. at 213; see also Klaff,supra note 63, at 34041 (arguing that the two doctrines, tenderyears and best interests, were first introduced inAddicks).

141 Klaff, supra note 63, at 342, 34953 (demonstrating through case history analysis that thetender years presumption is generally overcome with a showing of the mothers unfitness, more


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English courts, however, continued to hold strictly to the paternal preferencerule again in 1824. An imprisoned father living in adultery had taken his six yearold child from the childs mother by stratagem and fraud in Ex parte Skinner.142

After a discussion of guardianship byparenspatriae resting in the Kings Bench tohave jurisdiction to control the right of the father to the possession of his child, 143

the courts ruling relied heavily on De Manneville and completely adhered tocommon law principles of paternal parental rights, concluding that the father had aright to take his child from the mother and the court had no authority to interfere inthe case.144 There was no discussion of how the childs welfare might be affectedby the adulterous convict fathers rights. Clearly, no trend towards a new legalstandard for children was established byPowelor any other case in Great Britainscourts.DeManneville ruled the day.

Simultaneously, across the Atlantic the hard and fast paternal presumptionwas challenged in Rhode Island by the new emerging and formidable standard ofthe 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 thefacts at issue in determining the proper application of that right, and a widediscussion arose as to the right of the father to have the custody of the infant underthe circumstances of the case.146 Parents rights to protect children wereinalienable, but not absolute when circumstances endangered the child.147

The Green court declared that the rights of the parent existed for the benefit ofthe child and were subordinate to the childs 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.).143Id. at 27980. The court cited several other cases in agreement, and one opposing opinion:

Independently of these authorities,Blissets case is decision to shew, that if the fatherappear to be an improper person to have the custody of his child, and it be of too tenderyears to choose for itself, the Court of Kings Bench has a discretionary power to assignthe custody of the child to a third person.

Id. The court here used its discretion in applying the common law rules alone.144Id. at 282.145 2 D.C. (2 Cranch) 520 (1824).146Id. at 31.147Id. at 3132.As to the question of the right of the father to have the custody of his infant child, in ageneral sense it is true. But this is not on account of any absolute right of the father, butfor the benefit of the infant, the law presuming it to be for its interests to be under thenurture 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, andascertain 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 allundue restraint, and endeavour, as far as possible, to administer a conscientious, parentalduty with reference to its welfare.

Id.148Id. at 32.


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common law rules. 149The best interest of the child as a legal standard was gainingmomentum 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 predominantconsideration.150 This effectively proclaimed that any parental right was based onthe parents duty to act in the best interests of the young child. Upon review of thefacts and circumstances, the court did not find the father intemperate nor unfit, norhad the mother filed for divorce,151 which allowed the court to see it in the childsbest interests to not interfere with the writ and allowed the rules to work togetherto govern and regard the good of the child. TheBriggs court saw the best interestsstandard as inherent in the legal rights vested in parents.152The best interest of thechild as a legal standard was not a new rule, but a purpose for applying the existingrules regarding children.

The same could not be said of England, as the courts there were embroiled ina conflict between applying the common law rules toward near absurdity and a

common sense reform of the rules. Unlike the American courts, Kings Benchjudges were reluctant to depart from precedent and contravene the fathers right tocustody even in a very compelling case.153 In the 1839 case ofRex v. Greenhill, amother took her children from the marital home where the father had moved in hisparamour, and the father brought a habeascorpus writ to the court to reclaim thecustody of his children.154 Although it was obvious to the court that the husbandwas using the children to force the wife to return to the marital residence withouthaving to give up his extramarital liaison, the court saw no alternative to grantingcustody of the children to their father.155 Englands courts continued to apply the

149 It is an entire mistake to suppose the court is at all events bound to deliver over the infantto his father, or that the latter has an absolute vested right in the custody. Id. Interestingly, the courteven cited De Manneville as not inconsistent with that doctrine, asserting that the holding in DeManneville supposes its existence. The court there thought it for the interest of the child to give thecustody to the father.Id. This case likened American judicial discretion to English authority of theking, asparenspatriae.

150 33 Mass. (16 Pick.) 203, 205 (1834). (citing the traditional common law rules of paternalpreference and coverture, and relying on both De Manneville and Addicks, in an action by the stateforhabeas corpus for the child which the mother took from the marital home alleging the fathersintemperance, the court stated that the application of the common law rules or the tender yearsdoctrine were to be done so with the childs interest dominating).

As a general rule, the writ of habeas corpus, and all action upon it, are governed by thejudicial discretion of the Court, in directing which all the circumstances are to be takeninto consideration. In the case of a child of tender years, the good of the child is to beregarded as the predominant consideration.

Id.151Id. 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 astrong reason why the child should not be restored to her. Id.

152Id.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


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paternal presumption to their own discredit, and most likely to the harm of childrenand 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 theconundrum that these conflicting legal rules brewed.156 The trial court had applieda pure paternal preference finding custody of the baby girl in the father, but uponreview that decision was reversed, based upon an apparent application of thetender years presumption being better for the child.157 The court was very clear asto the standard it felt it should apply. The interest of the infant is deemedparamount to the claims of both parents. This is the predominant question which isto be considered by the court or tribunal before whom the infant is brought. Therights of the parents must in all cases yield to the interests and welfare of theinfant.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 yearsdoctrine.Id. at 21314, That legislation became known as Lord Talfourds Act: An Act to Amend theLaw as to the Custody of Infants, 1839, 2 & 3 Vict., c. 54, 34344 (Eng.).

156 25 Wend. 64 (N.Y. 1840).157Id.[W]hen the parents live apart under a voluntary separation, and the father has left aninfant child in the custody of its mother, such custody will not be transferredto the father

by the process ofhabeascorpus, when the infant is of tender age, and of a delicate andsickly habit, peculiarly requiring a mothers 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 fathershousehold, 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. Thecourt 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, tosuch custody, viz: It is the benefit and welfare of the infant to which the attention of thecourt ought principally to be directed. As a necessary result of this principle, it followsthat 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).158Id. The view the court had of its responsibility asparens 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 theformer 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 oftender years]. It seems then, that by the law of nature, the father has no paramountinalienable 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 caseswhere the interests and welfare of his child require it, does not come in conflict with orsubvert any of the principles of the natural law. The moment a child is born, it owesallegiance to the government of the country of its birth, and is entitled to the protection ofthat government. And such government is obligated by its duty of protection, to consultthe welfare, comfort and interests of such child in regulating its custody during the periodof its minority.

Id. at 257.


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development refined out of earlier English law, but also (even unwittingly) begansetting 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 sevenyears later, the Court recognized that there was no legal reason to grant a writ ofhabeas, nor had they jurisdiction to change the ruling.160The High Court took theopportunity, however, to recognize and affirm the duty of the state courts to makesuch orders as will be for the benefit of the child. . . . 161 Distinguishing a childswelfare from a childs liberty interest,162 the legal standard regarding children wasthat all parties and their respective rights, particularly parents in their parentalrights, were under an obligation to act in the best interests of the child. Mercein placed a crowning culmination on early American jurisprudence regardingchildren. The language in Mercein can seem intimidating and broad, grantingsweeping authority to a court over a child and his or her family in such a fashionthat 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 interestsstandard itselfjudicial overreach abridging inalienable parent rights.163

Addicks, Green, Briggs and Mercein form a foundation of cases that set theframework for the best interests of the child as the legal standard applied to casesregarding children. Before the middle of the 1800s, this new and emergingAmerican family law jurisprudence placed a duty to children upon parents andcourts paramount to common law rules which were previously dictated by parentalrights alone.

After this series of American decisions regarding children, English courtsseriously began to apply rules designed to work for the protection of children. Forexample, in 1851 rather than purely and legalistically deferring to the paternalpreference, even when a father was acquitted of a crime, he was denied custody of

his children, based on what the court deemed in the childrens best interest.164

InAnonymous, a clergy father of six left his home and was charged and apprehended

159Id.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 reviewableas 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 infantdaughter. They are living separate from each other, and each claiming the right to thecustody, care, and society of their child. This is the matter in dispute. And it is evidentlyutterly incapable of being reduced to any pecuniary standard of value, as it rises superiorto money considerations.

Id. at 120.161Id. at 116.162Id. 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 greatextension, if not entire perversion, of its object.Id.

163 [T]he viewpoint reflected in this quotation perhaps is not a utilitarian one. Maybe it reflectsyet another natural lawthe State as the supreme arbiter of all relationships. Mercer, supra note 57,at 20.

164 Anonymous (1851) 61 Eng. Rep. 260 (Ch.).


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for the commission of an unnatural crime, but no witnesses appearing he wasacquitted.165 The best interests of the children trumped the fathers rights tocustody, for the protection of the children themselves.166

Another area of law regarding children took an immediate and radicaldeparture from a basic concept of Roman law, in that the primary concern for thewelfare of the child was reflected in American adoption statutory law.167 The firstadoption law in the United States was endorsed in Massachusetts in 1851.168Thisfirst-of-its-kind American law emphasized the needs of the adopted child with theobjective of benefiting minor children in need of parents.169 Thus began theAmerican concept of adoption, firmly based in the best interests of the child. It setthe tone for adoption statutes in the rest of the country.170 Evidencing momentumfor the new doctrine regarding childrens interests, the Massachusetts Legislaturecodified 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, areequal, and the happiness and welfare of the children are to determine the care and

custody.171

The New Jersey case ofBaird v. Baird demonstrates how solid the BICstandard was becoming in American family law by 1869. 172 Saddened by thecourts intrusion into the private household and reviewing the facts, the courtnoted that its ruling was based on its general jurisdiction over the interests of

165Id. at 54. When the father returned to reclaim custody of his children, the court consideredthe positive qualifications of their mother in the care of the children and the negative reputation andsocial effects on the children due to bearing the name of the said petitioner, as one charged withsuch 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 6364.

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 theparamount duty of the Court to do so for the protection of the children themselves, andthe 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 himor if their beingwith him will affect their happinessof if they cannot associate with him without moralcontaminationor if, because they associate with him, other persons will shun theirsociety.

2 Sim. (N.S.) at 69.167 Post,supra note 69, at 15152. For example, Justinian was adopted by his uncle so he could

become emperor of Rome. WALTER WADLINGTON & RAYMOND D. OBRIEN, FAMILY LAW IN PERSPECTIVE198 (2001). Post argues that Christianity and its virtues were what caused this change in adoptiontradition 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 & OBRIEN,supranote 167, at 198.

169See MASS. GEN. LAWS ANN. ch. 324 752;see also WADLINGTON & OBRIEN,supra note 167,at 198 (noting that adoptions objective was to benefit minor children in need of parents).

170 WADLINGTON & OBRIEN, supra note 167, at 198. Today throughout the United States,adoption is child centered rather than adult centered in every States codified adoption laws. Id.

171 Reprinted in MAXWELL H. BLOOMFIELD, AMERICAN LAWYERS INA CHANGING SOCIETY 119 (1976)(citation omitted).

172 21 N.J. Eq. 384 (1869).


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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 indicta, the New Jersey court affirmed again that the paternal preference rule was

subordinate to the best interests of the child.174This decision was transparently based on the best interests standard.175 In thiscourt of equity, strict law was not as important as the welfare of the child. Atcommon law the paternal presumption prevailed. Remnants of that presumptioncontinued in parts of American law, but was eventually overcome by the newstandard courts were applying regarding the best interests of the child.

By 1870, the Illinois Supreme Court found guaranteed due process protectionto children in the states constitution in People ex rel. OConner v. Turner.176A post-Civil War concept of rights of persons inured to children. Legislation inIllinois that allowed the imprisonment of a fourteen year old boy in a ChicagoReform School, even when his father had filed a writ of habeas challenging theboys confinement, was deemed unconstitutional and not in the childs welfare. 177

Documents

Tracing the Foundations of the Best Interests of the Child