The “best interest” of a child has become a lens of each court’s own fashioning. And the facts of each case are then viewed through that lens. So long as the “best interest” of the child remains undefined inconsistent results will be the norm. The “best interest” standard without guide posts, limits, and direction is inherently arbitrary. Under the current undefined standard too much of a custody determination is based on the judge you draw rather than the law or the facts of your case.
It may be argued that the judges of the state are worthy of such broad discretion to effectively address every eventuality. However, the diversity of judgments confirms that the need for narrower guide posts is indicated. The Supreme Court has previously rejected overly broad discretion in matters relating to child custody. Parham v. JR, 442 U.S. 584, 603(1979)(“The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”)(emphasis in original). The “best interest” of a child is not the sole province of the judge. Prince v. Massachusetts, 321 U.S. 158, 166 (1944)(“It is cardinal with us that the custody, care and nurture of the child reside first in the parents”). The parents, as a general rule, are in the best situation to determine what is in the best interest of their own children. However, a parent can abdicate that sacred role and invite intervention. R.K. v. R.J., 843 So. 2d 774, 786 (Ala. Civ. App. 2002)(parents can lose their privilege by acts indicating forfeiture including abandonment and fair agreement).
Guide posts must be set to govern the trial court’s field of operation when making a determination of the best interests of children. The first guide post should be that the court must give deference to the wishes of fit parents rather than try to craft a custody solution of its own making. The second guide post should be that parties that violate the children’s parenting time with the other parent must not be rewarded. The third guide post should be that when parents affirmatively and voluntarily forfeit parental responsibilities they invite intervention of the court. And the fourth guide post should be that any decision in equity must be balanced so as to respect the constitutionally protected rights of both parents and kept within the bounds of due process. Within the four corners of these guideposts is ample room for the court to justly address every eventuality.
Admittedly, these are principles that could be employed by judges under the current laws of the state. However, experience has shown that these principles are not being adhered to throughout the system. The term “best interest” has been left to the private interpretation of each judge in the state. These private interpretations have yet to coalesce around a single star and have been left to disperse throughout the chaos of space. All judges are simply not of like minds in this regard and we cannot rely on some abstract law of nature to guide them to consensus. The wisdom and guidance suggested above must be provided to the Courts. Contrary to the assertions of the Bayliss court, wisdom does not automatically come sewn into the lining of black robes. Ex parte Bayliss, 550 So. 2d 986, 995 (Ala. 1989)(“Our trial courts have demonstrated that they have the wisdom of Solomon in these domestic matters. We know that they will continue to demonstrate that wisdom in deciding whether to require a parent to provide, or help defray the cost of, a college education for a child, even after that child attains the age of 19 years.”). If all judges were so inherently wise we would have no need for appeals courts and Bayliss itself would never have been overturned.
The “best interest” of a child must be narrowed and defined so as to assure consistent just results in matters of child custody.