Determining the Undeterminable: The Best Interest of the Child Standard as an Imperfect but Necessary Guidepost to Determine Child Custody

Since the 1960s, our nation's courts have almost universally relied on a legal standard known as the "best interest of the child" in order to resolve contested issues involving child custody. Critics of the standard conclude that, due to the complexities of defining what will serve a child's best interests, the standard is at best not helpful, and is perhaps even useless. Critics also charge that the standard is indeterminate, and depends too heavily on the subjective values and life experience of the individual fact finder--the trial judge. In this article, Steven Peskind will review the history of standards used by courts in deciding contested child custody matters. His analysis will focus on the development of custody law from a standard that automatically awarded custody to fathers evolving into the ubiquitous best interest standard used today. It will also address the concerns of the critics of the best interest standard and will conclude that, despite the many profound weaknesses of the standard, there is effectively no better option for courts. The solution, he will opine, is not a different legal standard, but practical changes in the administration of custody cases. These include expedited litigation, less reliance on mental health professionals, and better training