英文美国法学上子女利益最大化原则的基础v10n2-46-167-1-PB..docVIP

Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence Lynne Marie Kohm* Introduction The best interests of the child doctrine is at once the most heralded, derided and relied upon standard in family law today. It is heralded because it espouses the best and highest standard; it is derided because it is necessarily subjective; and it is relied 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 child protective services. And in every case, a judge must decide what is “best” for any child 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 unwarranted premise that judges are capable of making fine-tuned judgments about a child’s best interests.” The dearth of scholarship, however, on the foundations of this best interests standard for children in American family law jurisprudence does not make the judge’s job any easier. “The best interests standard necessarily invites the judge to rely on his or her own values and biases to decide the case in whatever way the judge thinks best. Even the most basic factors are left for the judge to figure out.” 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 to determine what “the best” really is. Perhaps an investigation of the basics of that doctrine can help with this conundrum. This article will examine the oldest and deepest foundations for the best interests of the child as a legal standard. It thoroughly investigates the judicial and statutory rudimentary building blocks of the best interests of the child as a legal standard, and discusses how that standard has develop