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March 8, 2016
By Ned Holstein, MD, MS Founder and Chair of the Board, National Parents Organization

What does “best interest of the child” (BIC) actually mean? After all, this concept is at the heart of almost all family law.

If a child ”borrows” a bicycle and then hurts herself crashing into a fire hydrant, is the best interest of the child to punish her for taking the bike, or to comfort her for her scrapes and bruises? Is it in the best interest of the child to be a Catholic like her father or a Protestant like her mother? Or no formal religious training? Should a child be loaded with music lessons, gymnastics, and the debate club, or should he be allowed to find his own way with more free time? Is it a good idea to let your children be “free range children?”

Parents spend sleepless nights trying to figure out answers to questions like these. And the truth is there is no clear answer to most such questions unless you know the child intimately, as a parent does, and even then it is often unclear.

So how can a judge, who would not recognize your child on the street, make decisions about the “best interest of the child?” Yet that is what they are charged to do every day in family court.

You and I are not the only ones to wonder whether the BIC is an empty phrase that simply allows the judge to do whatever she wants with your children.

So it is interesting to note the view of Hillary Rodham Clinton, perhaps the next President of the US. She wrote a law review article in 1973, stating unequivocally, “Best interests operates as an empty vessel into which adult perceptions and prejudices are poured." (Hillary Rodham, Children Under the Law, 43 Harv. Ed. Rev. 487, 513 (1973).) (Editor’s note, we have not checked out the accuracy of this quote.)

This seems to imply our view, that the BIC concept has little meaning except in obvious circumstances and generally allows the judge to act on whatever his personal parenting beliefs, biases, “perceptions and prejudices” might be.

In recent years, Clinton has been an advocate for women pretty much down the line, meaning those causes espoused by the leadership of feminist organizations, which does not include reform of the family courts (except to make domestic violence laws even tougher than they already are).

Of course, surveys and polls have shown over and over again that rank and file women – as opposed to the leadership of women’s organizations such as NOW or the League of Women Voters --overwhelmingly support shared parenting as the usual outcome.

Could this be another example of why rank and file voters in both parties are rebelling against the “establishment,” because the “establishment” does not stand for the same things as the rank and file? Perhaps Hillary needs to return to her 1973 roots, at least in respect to family courts.

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