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Jan302011

Legal Pad: The Best Interest of the Child

By M. J. Goodwin

www.mjgoodwin.com

I spend about 85% of my professional life in the Family Court of South Carolina.  Most of that time is spent on cases involving child custody or child abuse and neglect.  The standard for determining which parent gets custody of a child is “what is in the best interest of the child?”  Our Supreme Court has repeatedly stated that “in a custody dispute, the paramount and controlling factor is the welfare and best interest of the child“.  What a slippery slope that can be. 

Goodwin But it is better than the standards that we used to have.  Way back, a long time ago, children were regarded as property and therefore, were usually awarded to the father.  Of course, divorce was less prevalent then.  But if it happened, the children went with the father.  Sometimes that was good, sometimes it wasn’t.  Later, as the “new” wisdom of the 1950s-70s came into vogue, the “Tender Years” doctrine was adopted, which stated that very young children were better off in the care of their mother.  Well, that is not always the case either.   So the law ultimately involved into where it is today, the best interest standard.

So how does one determine what is in the best interest of a child?  I would submit that you cannot know what is in the best interest of a child until the child has grown up.  In retrospect, you may be able to say that what was done with regard to child rearing resulted in a well-rounded, self-sufficient grown up.  But you might also say that some areas could be better.  Or that another approach would have produced a similar result.  But that is of little help to a family court litigant, family court attorneys and family court judges. (READ COMPLETE COLUMN HERE)

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