154 6 Court and the Legal System—juvenile Forensicsan even broader level, the standard has been criticized because societal agreement
about what is in the best interests of children does not exist (Goldstein, Solnit,
Goldstein, & Freud, 1996; Skolnick, 1998).
Dolgin (1996) suggested that the lack of guidance may lead judges to tocus
on the interests of the parents rather than on the interests of the child. A judge
may do this by basing his or her decision on protecting the constitutional rights
of the parents. G. Miller (1993) stated that courts often examine other factors in
addition to the best interests of the child. These factors include the constitutional
rights of those involved. Miller indicated that Supreme Court decisions reflect the
idea that constitutional rights precede the Best Interests standard. This leads other
courts to examine the interests of the adults over the children. In the case of Joe
and Sarah, a judge may have to consider Joe's constitutional rights ot losing his
children because of a crime he may never commit, even if this supersedes the best
interests of the children. Kandel (1994) suggested that the best interests standard
"does not rise to constitutional dimensions; it implicates neither substantive nor
procedural due process rights. Further, it is subject to limitation in the interests of
the state, the interests of the parents, and the interests of children themselves" (p.
349). He also indicated that the standard is more of an infringement on the rights ot
children than parents because a judge substitutes his or her opinion for the choice of
the children.
In forming such an opinion, the judge does not have to consider psychological
suggestions. In fact, G. Miller (1993) indicated that the Best Interests standard is de-
fined differently both legally and psychologically, leading to further complications.
For mental health workers, the best interests of the child is the conclusive factor in
recommending an appropriate placement, while for the courts, it is not; constitu-
tional and legal factors rank higher than the Best Interests standard. According to
Kandel (1994), when the court does request psychological assistance, it does so to
justify its decision. It appears to create "scientific validity" (p. 348) that this is the
best choice; however, often the court asks mental health professionals the wrong
question.
Another factor that appears to bias judges' decisions is that since the early 20th
century mothers have been given preference with regard to custody of their children,
even though this has never been statutorily recognized (Kandel, 1994). Skolnick
(1998) suggested that though the Best Interests standard prevails, most custody
decisions still are made in favor of the mother. There are four explanations provided
by Warshak (1996) tor this phenomenon: (1) women by nature make better parents
and are more essential to children, (2) most mothers are better parents, not because
they possess innate superiority, but because they have more experience than fathers
in raising children, (3) custody should be a reward for the types of contributions
a mother has made to her children, and (4) mothers suffer more emotionally than
fathers from the loss of custody. Warshak also indicated that only 1 in 10 children
resides with their fathers, and this has been a steady proportion tor decades. Despite