Defining the BIOTCh

The American Bar Association defines:

What "Best Interests of the Child" Means

1. The notion of special protections for children began to come into American law in the late 19th century. Prior to that time, there were no children’s rights in family law, no protections against abuse, no juvenile justice system.

2. The term “best interests of the child” dates from that era and has over a century of use in American jurisprudence.

In the 19th century, it was presumed that the parents defined the best interests of the children. The term was used to justify and explain parental authority, not to undermine it.

The term has lost almost all meaning:

6. There has always been concern about the vagueness and breadth of this term, as well as the potential arbitrariness in how it may be applied. The “best interests” standard does not provide specific guidance. It is a subjective standard.

7. And there are often disagreements over what actions truly are in the best interests of children in a given case. For example, how does the standard apply in disputes between parents and grandparents or between biological parents and prospective adoptive parents?

Often disagreements? There is never any agreement about how the term should justify a court intervention.

9. “Best interests of the child” embodies an aspiration against which legal policy and its implementation must be measured. As the law grapples with specific child and family dilemmas, it must integrate knowledge of the needs of growing children in different circumstances. The term reminds us that we must never lose sight of the viewpoint of the most defenseless member of the human family: the child.

So it is just an aspiration to remind us that children are important.

I object to considering it a standard against which policies and actions can be measured, because it is not that and cannot be that. I have never even heard of a family court taking the phrase seriously. No one ever measures anything against any standard. The California statute says “best interest of the child”, not “best interests of the child”, and no one even notices the difference. It is just a meaningless buzz phrase that judges use to do whatever they please.