The Best Interest Standard: How Broad Judicial Discretion and Influences of Social and Political Suggestion Have Led to an Abandonment of the Rule’s Primary Purpose in Child Custody Decisions


The vital questions in child custody disputes all concern that which is in the best interest of the child. Historically, interpretations of the “best interest” standard have been founded upon presumptions steeped in the notion of natural rights and duties based largely upon a mix of scientific and subjective conclusions regarding gender-based parenting roles and the need to sustain them. My research demonstrates that, as courts attempt to avoid the decisions of the past and submit to the societal will of the present, the modern application of the “best interest of the child” standard has led unexpectedly to an abandonment of the principle’s primary purpose, which is to provide for the child‘s best interest, and should, therefore, be changed with the adoption of specific suggestions that consider both the natural and social interests of the child and, ultimately, places the child’s interest above those of parents and politics.


Law and Gender | Sexuality and the Law | Social Welfare Law

Date of this Version

December 2004