IN 1979, LESS THAN ONE YEAR OUT OF HARVARD LAW SCHOOL, THE FUTURE constitutional scholar Erwin Chemerinsky submitted his first article for publication in a national law journal during a stint at the Justice Department. He’d settled on a topic that not only raised the kinds of abstract and serious constitutional questions favored by academic publications but one that affected millions of families every year: the “best interest of the child” standard then used by nearly every family court in the country.

Just as the established paternalistic mindset enabled family courts and legislatures to establish guidelines for alimony and legal fees, the “best interest of the child” standard gave courts the ultimate authority over the lives of children whose parents happened to be going through a divorce. And like the delineation of an “earner spouse” and a “dependent” spouse” that justified alimony and legal fee awards, the “best interest of the child” standard rested on an antiquated premise: that families in which the parents were divorcing or already divorced, so-called “broken homes,” were automatically troubled and therefore fundamentally less healthy than other families. This distinction, which once allowed judges to force dysfunctional families to stay together, now gave the court the moral authority to ignore the presumption expressed in certain landmark Supreme Court decisions13 that both parents had an equal right to see and to support their children. In its place was a web of guidelines, expert opinions, and ultimately, judicial discretion.

Prior to 1979, the year Chemerinsky’s article appeared in the Journal of Family Law, “in the best interest of the child” tended to be interpreted narrowly. Most judges preferred to leave the parenting to the parents unless they had been proven unfit—a term that implied either neglect or abuse. As Chemerinsky noted in his article, however, by the late 1970s judges were beginning to take a much more active role. This, he said, raised serious constitutional issues, since what was in the best interests of a child was obviously a vague and highly subjective standard. While the assumptions contained in the so-called Tender Years Doctrine that were transplanted to the U.S, and ultimately deemed unconstitutional, the assumptions underlying the best-interests-of-the-child standard created a more nuanced issue: the standard essentially said that decisions regarding children are not the purview of their mother or their father but a state-run court. Buy the book to read more…

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