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What constitutes "best interest"?

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  • What constitutes "best interest"?

    In conflicted adoptions, I understand the courts tend to look for the "best interest of the child". What constitutes "best interest", and what do the courts look for in deciding which parent might be the most well suited-in other words, what issues decide between the two?

  • #2
    Re: What constitutes "best interest"?

    Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well being of children.

    The most important of these issues concern which parent a child will reside with (see residence in English law); the extent of contact (previously termed "access", or in some jurisdictions, " visitation") with the child by a non-resident parent, legal guardian, or other party; and child support. The determination of what constitutes the best interests of a child is considered by many to be a subjective doctrine as it lacks objective criteria.

    Assessing the best interests of the child

    In proceedings involving divorce or the dissolution of a common-law marriage or a civil union, the best interests of any children of these unions will need to be assessed.

    The determination is also used in proceedings which determine legal obligations and entitlements, such as when a child is born outside of marriage, when grandparents assert rights with respect to their grandchildren, and when biological parents assert rights with respect to a child that was given up for adoption.

    It is the doctrine usually employed in cases regarding the potential emancipation of minors. Courts will use this doctrine when called upon to determine who should make medical decisions for a child where the parents disagree with authorities.

    In determining the best interests of the child or children in the context of a separation of the parents, the court may order various investigations to be undertaken by social workers, psychologists and other forensic experts, to determine the living conditions of the child and his custodial and non-custodial parents. Parents may request or deny visitation or custody to fit their own interests, but the overriding consideration is how the child will benefit from interacting with his parents. Such issues as the stability of the child's life, links with the community, and stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings. In English law, section 1(1) Children Act 1989 makes the interests of any child the paramount concern of the court in all proceedings and, having indicated in s1(2) that delay is likely to prejudice the interests of any child, it requires the court to consider the "welfare checklist", i.e. the court must consider:

    -- The ascertainable wishes and feelings of each child concerned (considered in light of his or her age and understanding);
    -- His or her physical, emotional and/or educational needs now and in the future;
    -- The likely effect on him or her of any change in the circumstances now and in the future;
    -- His or her age, sex, background and any other characteristics which the court considers relevant;
    -- Any harm which he or she has suffered or is at risk of suffering now and in the future;
    -- How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her needs;
    -- The range of powers available to the court under the Children Act 1989 in the proceedings in question.


    • #3
      Re: What constitutes "best interest"?

      Best interest of the child. The court, in making an award of parental rights and responsibilities with respect to a child, shall apply the standard of the best interest of the child. In making decisions regarding the child's residence and parent-child contact, the court shall consider as primary the safety and well-being of the child. In applying this standard, the court shall consider the following factors:

      A. The age of the child;
      B. The relationship of the child with the child's parents and any other persons who may significantly affect the child's welfare;
      C. The preference of the child, if old enough to express a meaningful preference;
      D. The duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity;
      E. The stability of any proposed living arrangements for the child;
      F. The motivation of the parties involved and their capacities to give the child love, affection and guidance;
      G. The child's adjustment to the child's present home, school and community;
      H. The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access;
      I. The capacity of each parent to cooperate or to learn to cooperate in child care;
      J. Methods for assisting parental cooperation and resolving disputes and each parent's willingness to use those methods;
      K. The effect on the child if one parent has sole authority over the child's upbringing;
      L. The existence of domestic abuse between the parents, in the past or currently, and how that abuse affects:
      1. The child emotionally; and
      2. The safety of the child;
      M. The existence of any history of child abuse by a parent;
      N. All other factors having a reasonable bearing on the physical and psychological well-being of the child;
      O. A parent's prior willful misuse of the protection from abuse process in chapter 101 in order to gain tactical advantage in a proceeding involving the determination of parental rights and responsibilities of a minor child. Such willful misuse may only be considered if established by clear and convincing evidence, and if it is further found by clear and convincing evidence that in the particular circumstances of the parents and child, that willful misuse tends to show that the acting parent will in the future have a lessened ability and willingness to cooperate and work with the other parent in their shared responsibilities for the child. The court shall articulate findings of fact whenever relying upon this factor as part of its determination of a child's best interest. The voluntary dismissal of a protection from abuse petition may not, taken alone, be treated as evidence of the willful misuse of the protection from abuse process;
      P. If the child is under one year of age, whether the child is being breast-fed; and
      Q. The existence of a parent's conviction for a sex offense or a sexually violent offense as those terms are defined in Title 34-A, section 11203.


      • #4
        Re: What constitutes "best interest"?

        It does vary slightly from state to state by the way but that info above is a good general guide I would agree.


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