When courts think a custody-seeking parent's constitutionallyprotected behavior is against the "best interests of the child"
bickersj1 at nku.edu
Tue Jul 1 13:32:48 PDT 2008
Should the fact there is a zero-sum aspect to custody disputes affect the analysis? I certainly understand skepticism of discretion by judges in the area of protected liberties, and quite agree with the comments below in the abstract. Life isn't all that abstract, though, and family court judges in contested custody settings are deciding not whether parent A's membership in a racist organization makes A bad generally, but whether it makes A a worse parent than B, who isn't in such an organization. Understanding the risks we run as a society when use a "best interests" standard, the risk that judges will elevate taste to morality, isn't it nonetheless a risk we have to take if we are to avoid simply assigning children randomly among parents in broken families?
Salmon P. Chase College of Law
Northern Kentucky University
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Tue 7/1/2008 3:19 PM
To: conlawprof at lists.ucla.edu
Subject: When courts think a custody-seeking parent's constitutionallyprotected behavior is against the "best interests of the child"
A few thoughts on this question:
1. It might be helpful to distinguish two ways that behavior may be against a child's best interests -- (a) when it jeopardizes the child's health when the child is still a child, or (b) when it teaches the child to engage in similar behavior when the child is an adult.
I'm not sure quite what the right rule should be as to category (a), when the behavior is constitutionally protected -- I'm inclined to say some restraints on the constitutional rights are permissible, but not all such restraints, and the restraints should be imposed under a clearer and more demanding standard than just the all-things-considered best-interests test. But as to category (b), it seems to me that the courts should generally not consider such risks, at least where constitutional rights are involved.
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