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Encyclopedia > Best interests

Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well being of children. A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermanns Microcosm of London (1808-11). ... For other uses, see Child (disambiguation). ...

The most important of these issues concern which parent a child will reside with (see residence in English law); the extent of contact (previously termed "access", or in some jurisdictions, "visitation") with the child by a non-resident parent, legal guardian, or other party; and child support. The determination of what constitutes the best interests of a child is considered by many to be a subjective doctrine as it lacks objective criteria. Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parents duty to care for the child. ... In Family Law, residence is an Order of the Family court under s8 Children Act 1989 following the breakdown of a marriage and determining where the child(ren) are to live and with whom. ... In Family Law, contact (or in the United States, visitation) is one of the general terms which denotes the level of contact a parent or other significant person in a childs life can have with that child. ... In Family Law, contact (or in the United States, visitation) is one of the general terms which denotes the level of contact a parent or other significant person in a childs life can have with that child. ... A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. ... In many countries, child support or child maintenance is the ongoing obligation for a periodic payment made by a non-custodial parent to a custodial parent, caregiver or guardian, for the care and support of children of a relationship or marriage that has been terminated. ...



The use of the best interests doctrine represented a 20th century shift in public policy. The best interests doctrine is an aspect of parens patriae and, in the United States. it has replaced the equally subjective tender years doctrine. That doctrine rested on the basis that children are not resilient and almost any change in a child's living situation would be detrimental to his or her well being. (19th century - 20th century - 21st century - more centuries) Decades: 1900s 1910s 1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s As a means of recording the passage of time, the 20th century was that century which lasted from 1901–2000 in the sense of the Gregorian calendar (1900–1999... Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state. ... Parens patriae is Latin for parent of the fatherland or parent of the homeland. ...

In the U.S., until the early 1900s, children were legally considered to be chattel, the personal property of the father (in other jurisdictions, children have never been considered chattels). Therefore, the father's determinations outweighed any other person's input on decisions concerning the welfare of the child. Many U.S. states then shifted from this standard to one that completely favored the mother as caregiver. Finally, the 1970s saw the subordination of the interests of either parent (as well as that of foster parents and step-parents) to the interests of the child. Because many courts continue to give great weight to the traditional role of the mother as a caregiver, application of this standard in custody and monetary disputes has historically tended to favor the mother. This has led fathers' rights advocates to derisively assert that the standard really means "the best interests of the mother", and to contend that fathers are arbitrarily deemed to be less capable of caring for and nurturing their children. // First flight by the Wright brothers, December 17, 1903. ... The term jurisdiction has more than one sense. ... Federal courts Supreme Court Chief Justice Associate Justices Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures State Courts Counties, Cities, and Towns Other countries Politics Portal      A state of the United States is any one of the fifty subnational entities of the... The 1970s decade refers to the years from 1970 to 1979, inclusive. ... A foster parent is an adult guardian to whom one or more children have been legally entrusted. ... A stepfamily is the family one acquires when a parent marries someone new. ... The Fathers rights movement can be seen as part of the mens movement and/or the parents movement, it emerged in the 1970s as a loose social movement providing a network of interest groups, primarily in western countries. ...

The "best interests of the child" doctrine is sometimes used in cases where non-parents, such as grandparents, ask a court to order non-parent visitation with a child. Some parents say that using the "best interests of the child" doctrine in non-parent visitation cases fails to protect a fit parent's fundamental right to raise their child in the manner they see fit. Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 LEd2d 49 (2000).

Assessing the best interests of the child

The Child In proceedings involving divorce or the dissolution of a common-law marriage or a civil union, the best interests of any children of these unions will need to be assessed. For the record label, see Divorce Records. ... Common-law marriage (or common law marriage), sometimes called informal marriage or marriage by habit and repute is, historically, a form of interpersonal status in which a man and a woman are legally married. ... A civil union is a legally recognized union similar to marriage. ...

The determination is also used in proceedings which determine legal obligations and entitlements, such as when a child is born outside of marriage, when grandparents assert rights with respect to their grandchildren, and when biological parents assert rights with respect to a child that was given up for adoption.

It is the doctrine usually employed in cases regarding the potential emancipation of minors. Courts will use this doctrine when called upon to determine who should make medical decisions for a child where the parents disagree with authorities. Emancipation of minors is a legal mechanism through which a person below the age of majority gain certain civil rights, generally identical to those of adults. ... See drugs, medication, and pharmacology for substances that are used to treat patients. ...

In determining the best interests of the child or children in the context of a separation of the parents, the court may order various investigations to be undertaken by social workers, Family Court Advisors from CAFCASS, psychologists and other forensic experts, to determine the living conditions of the child and his custodial and non-custodial parents. Parents may request or deny visitation or custody to fit their own interests, but the overriding consideration is how the child will benefit from interacting with his parents. Such issues as the stability of the child's life, links with the community, and stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings. In English law, section 1(1) Children Act 1989 makes the interests of any child the paramount concern of the court in all proceedings and, having indicated in s1(2) that delay is likely to prejudice the interests of any child, it requires the court to consider the "welfare checklist", i.e. the court must consider: A social worker is a person employed in the administration of charity, social service, welfare, and poverty agencies, advocacy, or religious outreach programs. ... The Children and Family Court Advisory and Support Service (CAFCASS) is a national non-departmental public body for England and Wales set up to safeguard and promote the welfare of children involved in family court proceedings. ... A psychologist is a scientist and/or clinician who studies psychology, the systematic investigation of the human mind, including behavior and cognition. ... Forensic science (often shortened to forensics) is the application of a broad spectrum of sciences to answer questions of interest to the legal system. ... English law is a formal term of art that describes the law for the time being in force in England and Wales. ... The Children Act 1989 is a British Act of Parliament that altered the law in regard to children. ...

  1. The ascertainable wishes and feelings of each child concerned (considered in light of his or her age and understanding);
  2. His or her physical, emotional and/or educational needs now and in the future;
  3. The likely effect on him or her of any change in the circumstances now and in the future;
  4. His or her age, sex, background and any other characteristics which the court considers relevant;
  5. Any harm which he or she has suffered or is at risk of suffering now and in the future;
  6. How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her needs;
  7. The range of powers available to the court under the Children Act 1989 in the proceedings in question.

The welfare checklist considers the needs, wishes and feelings of the child and young person and this analysis is vital to ensure that the human rights of children are always in the forefront of all consideration. The welfare checklist provides a comprehesive list of issues that need to be considered to ensure that young people who come into court proceedings are safeguarded fully and their rights as citizens are promoted.


  • Jill Elaine Hasday, The Canon of Family Law, Stanford Law Review, Vol. 57 (December, 2004), p. 825-900.
  • Mary Ann Mason, From Father’s Property To Children’s Rights, A History of Child Custody

See also

Convention on the Rights of the Child Opened for signature 20 November 1989 in - Entered into force September 2, 1990 Conditions for entry into force 20 ratifications or accessions (Article 49) Parties 193 (only 2 non-parties: USA and Somalia) The United Nations Convention on the Rights of the Child...

External links

  • Representing Children Worldwide How Children Are Heard in Children Protective Proceedings in 250 Jurisdictions

  Results from FactBites:
Best interests - definition of Best interests in Encyclopedia (242 words)
Best interests or best interests of the child is the legal standard used by most courts in determining issues of child custody, child support and visitation (or access, as it is called in some jurisdictions) in regard to the child or children's parents or legal guardians.
Such a test may be applied either in proceedings that involve the dissolution of marriage in common-law marriages or in the context of the dissolution of a civil union.
In determining the best interests of the child or children the court may order various investigations to be undertaken by social workers, psychologists and other forensic experts, to determine the living conditions of the child and his custodial and non-custodial parents.
  More results at FactBites »



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