Best Interest of the Child Sets the Gold Standard

The movie Kramer v. Kramer poignantly depicts the heartbreak of a father trying to retain custody of his young son. Despite his superior competence as a parent (even after she won the case, the mother suddenly decides she is not equal to parenting), young Kramer loses custody to his wife when the judge decides that it would be in “the best interest” of the boy to be with her.

This phrase, the best interest of the child, sets the gold standard In marriage and family law and in divorce actions where judges sit like King Solomon and decide agonizing questions about the welfare of a child when one parent disputes the other.

Unlike the Biblical King Solomon, family court judges cannot suggest cutting a child in two as a means of finding the best parent.

This means a judge must assume the role of all-knowing parent in deciding the welfare of children, and as a practical matter, the judge has a great deal of discretion in deciding what is or is not in the best interest of a contested child. Statutes, case law and past practice may guide him or her, but in the end the judge decides.

In many jurisdictions, the best interest of the child means that in a custody dispute the child will end up with his or her mother. Unless a woman has demonstrated gross incompetence as a mother and parent, in most cases in most jurisdictions minor children in contested custody end up with their mother.

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