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Best Interests of the Child Doctrine 133

temporarily removed from Sarah's custody because of her drug use. However, she was

able to straighten herself out and they were returned to her. When foe was released from

prison, he and Sarah did not initiate divorce proceedings; they shared joint custody of the

two girls while the boy lived solely with his father. Joe does not have steady employment.

He works odd jobs as a mechanic and lives with his girlfriend in a trailer in his parents'

backyard. Sarah does not work at all and lives with her new fiance in a one-bedroom

apartment. They both claim to be drug free. Recently, joe and Sarah became angry with

one another, and Sarah filed for a divorce. In an effort to hurt foe, she has sued lor sole

custody of the two girls, stating that foe is a threat to them because of his prior sex

offense. The question before the court is which parent will provide the best environment

for the children.

Literature Review

When deciding between Joe and Sarah as sole custodians of their children, many
people might feel that neither should be awarded custody. However, the question
before the court is to choose between these two individuals, and the judge must
make the decision. In times past, a judge may have based his or her decision on
very different criteria. For example, prior to the mid-19th century, children were
perceived as property, and therefore fathers were entitled to such property. Courts
then turned to the idea that children of young ages should be allowed to stay
with their mothers until they were weaned. This was commonly referred to as The
Tender Years presumption (A. S. Hall, Pulver, & Cooley, 1996). It was not until 1925
that the Best Interests of the Child standard was initially proposed. This occurred
in the case of Finlay v. Finlay (1925). A father was suing for custody of his child,
and the court ruled that the concern should be for the child's welfare, not for the
argument between the parents. However, the Tender Years presumption continued
to prevail until 1970, when it was officially supplanted by the Best Interests of the
Child standard (A. S. Hall et al, 1996).
A major complaint lodged against this relatively new standard is that it is very
vague, allowing for judicial bias that leads to different results in similar cases
(Skolnick, 1998). Dolgin (1996), for example, reported that many criticize the
standard because it does not provide enough substantial guidance for courts to fol-
low regarding child custody decisions. The author also suggested that using the
Best Interests standard could lead to opposing decisions in child custody cases, de-
pending on the presiding judge. Part of the problem is that there appears to be no
widely recognized operational definition for the standard (Banach, 1998). Indeed,
one study found that the codes and statutes in all of the states had very little in
common regarding guidelines for this standard (A.S. Hall ct al., 1996).
The criticisms about vagueness extend beyond the problem ofjudicial bias. There
also appears to be a lack of agreement among mental health and legal professionals
about the necessary requirements for the best interests of a child, which leads
professionals to arrive at conflicting decisions in particular cases (Kelley, 1997). On