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Criticisms of the ``Best Interest'' Standard

There is no consensus among legal professionals, either in general or in a particular case, as to what constitutes the child's ``best interest.''43 However, although this standard and its meaning could be more explicitly stated, it provides the most useful standard for determining what it is in a minor's best interest.44

Despite its usefulness, criticisms of the ``best interest'' standard are numerous, and the recurring theme seems to be not only the lack of defined meaning but also the vast discretion of the judiciary in employing the standard.45 Frequently, case law and statutes refer to the best interest standard without specifying how it is determined. Further, if specific factors are explicitly stated in statutes, no guidelines or definitions are provided for interpreting the criteria, nor is the criteria weighted to guide decision-makers as to which factors are more important than others.46 Another major problem with the current undefined ``best interest'' standard is that it is influenced greatly by the decision-maker's own psyche.47 The decision-maker, in the instant case a judge, use her own ``lens'' when making judicial determinations, and likely allows her personal beliefs, experiences, or specialized knowledge of emancipation to influence her decision instead of deciding the petition on the basis of what is in the child's best interest.48

Similarly, the concept of the ``best interest'' standard has no objective content, and decision-making that utilizes open and flexible standards are often regarded as overreaching and arbitrary.49 Illustrating this point, LO #1 found that many judges believe that no minor ``could possibly know what is in his/her best interest.''50 Further, the reluctance of the courts to grant emancipation is seemingly based upon a presumption that in virtually all situations, minors should be in the custody of an adult, and on the assumption that familial relationships should be repaired and maintained.51



Footnotes

...43
Joan B. Kelly, The Best Interest of the Child, A Concept in Search of Meaning, Family and Conciliation Courts Review, Vol. 35, 377-387, 379 (Sage Publications, 1997).
...44
Id. at 377.
...45
Id.
...46
Id. at 379-380.
...47
Id. at 384.
...48
Daniel A. Krauss and Bruce D. Sales, Legal Standards, Expertise, and Experts in the Resolution of Contested Child Custody Cases, Psychology, Public Policy, and Law, 843-879 (Dec. 2000).
...49
Schneider, supra n. 40, at 2221.
...50
Report of LO #1, 2000-2001, p. 17.
...51
Id. at 17-18.

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