Defining 'Best Interest'

The test serves a necessary function in the common divorce case, in which two parents have equal status in their claims to child custody. Courts have to have some standard, and doing what's best for the child seems reasonable. Of course, the words lack all content, and courts have developed more specific criteria to infuse the standard with meaning and a modest degree of predictability. Thus, courts favor the parent who is the primary caretaker and nurturer, who provides stability, sympathy and affection, and who is likely to facilitate the child's relationship with the other parent. Courts assume, with strong support from the psychological literature, that a child needs contact with both parents. The custody choice is sometimes clear, sometimes too close to call with any confidence. However close, the divorce necessitates a choice, and the courts routinely provide liberal visitation for the parent not chosen for custody.

When the best-interest test branches out to other contexts, it can cause trouble. Legislators who resort to it, for example, to tell courts to award a grandparent visitation in 'the best interests of the child' pass along substantial problems of interpretation ' and of basic intelligibility ' to the family court bench. N.Y. Dom. Rel. L. '72.