Beyond the Best Interests of the Child

Abstract

Identifying just principles for minimizing and resolving disputes over child custody remains one of the law's knots. King Solomon's renowned gambit for resolving the claims of two women to a newborn child was in fact the easy case: only one of the two contenders had a just claim; only one of the two contenders was prepared to be responsible; and in that first of reported cases, the judge had the advantage of surprise. Yet where each potential custodian has a claim, where each is equally prepared (or unprepared) to sacrifice his interests for the child, and where the rules of decision are known in advance and thus susceptible to manipulation, justice for adult and child is much harder to achieve. Only with difficulty has the law advanced the rules regarding child-possession beyond the law of land-possession or slave-possession. Even in acknowledging that the "best interests of the child" are its central concern, the law has made false promises, both beyond its capacity and camouflage for rules that most strongly respond to the presumed interests of the competing adults.