This has been a very interesting discussion. I confess that at this point, I am
quite confused about the meaning of "best interests of the child." I understand
it is a complex, context-driven, and multivalent test. But it would certainly
help to understand the foundational values and defaults here and what interests
are considered admissible or inadmissible. In some sense, the thinner the
exposition of the test becomes, the more I wonder what thick assumptions
underlie it. Take, for instance, the claim that "[m]any would argue that it is
in the "best interest of the child" to welcome him into a supportive, religious
community with shared values and age-old historic traditions," and the response
that "[t]he question is what is in the interest of this child today." It's my
own fault, I'm sure, but I'm having trouble figuring out exactly where this
leaves us. Is it that it may be in the interest of the child today to welcome
him into a supportive religious community but that it is not dispositive, or
that the fact that the community is well-established and has shared values is
not dispositive of the child's best interests? Is it that the possibility of a
supportive religious community should never be relevant as between two possible
custody dispositions? Is it an empirical question to be decided in each case?
If it is potentially relevant but we acknowledge that some religious
communities may risk harm to the child, what counts as harm? Only serious
physical/emotional harm, or any suboptimal outcome, and by what definition of
optimization? I'm not asking to be made an expert in family law overnight, but
I can't help but feel that "the best interests of the child" is the beginning
rather than the end of the discussion, and I would welcome some--indeed,
any--clarification.
Best wishes,
Paul HorwitzUniversity of Alabama School of Law
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