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Best Interest of the Child: An International Perspective

In this video, Dr. Edward Kruk explains what is meant by the best interest of the child and how such determinations are made.
OK, well, thank you for talking with us, Dr. Kruk. Oh, it’s my pleasure. OK, I’d like to ask some questions about what the best interest of the child standard is. What does it mean in a family court setting? Well, it depends which family court setting and where. But typically, in North America and certainly in the United States, it’s a legal standard that’s applied in child custody determination. It’s a discretionary standard meaning that the best interest isn’t specified in advance. It’s determined by an individual judge when he or she is presented with the unique circumstances and facts of the case and the children before him or her. And the judge determines what is the best interests of the child.
It’s usually a matter of determining which parent is the more capable parent to parent the child post-separation. Although now, there’s an emerging kind of view that co-parenting or shared parenting is actually in the child’s best interest. That’s kind of from a judicial point of view but the best interest of the child when you ask children themselves or parents, it usually has to do with the essential needs of a child. Not only physical needs but psychological, emotional, moral, spiritual, et cetera. Social needs of a child. So yeah, the kind of nutriments that are essential to a child’s well-being. And how do other countries handle decisions like this regarding the best interests of the child? Do they use similar standards?
Well, there is a paradigm shift going on around the world especially in Europe away from this discretionary standard which is based on what judges determined to be most important for children to more of an evidence-based standard meaning based on current research on children’s well-being, research that’s looked at outcomes for children and co-parenting situations for example with sole parenting situations. So it’s rather than kind of idiosyncratic biases based on the idiosyncratic biases of a judge. It’s more based on what research tells us is best for children after separation.
And also, I think that there’s a bit of a shift away from what adults determine to be in a child’s best interest to look at the best interests of the child from the perspective of the child meaning what research is told is from children’s point of view. This is typically research based on interviews and surveys with young adult children of divorce who live through their parents’ divorce and are now saying this is what I would believe is best. And often, that’s quite different from what adults assume is best for children. And how has best interest of the child been misapplied in family courts?
There is a lot of misapplication in fact and the problems with the standard as we have it is that it’s very vague. It’s not really specified in very clear terms what children’s best interests are. Every judge has his or her own opinion. It’s subject to judicial error. Judges get it wrong a good deal of the time. And often, it reflects kind of a sole custody bias or sort of presumption. The problem with our current approach to best interest meaning that a determination of which parent should be the primary caregiver is that it sustains, intensifies, and fuels litigation and conflict, and that’s definitely not in children’s best interests. So there are any number of problems with this discretionary standard.
It’s also very deficit based. It sort of focuses on parents’ shortcomings rather than their strengths, and it does seem to, in many cases, in the US especially, reflect this bias that it’s best for children to live in the care of only one parent primarily if there’s parental conflict. But in fact, the research seems to suggest just the opposite, so that would be a problem with the best interest standard is currently applied. And what could we change about the best interest of the child standard when it’s applied in places like the US or Canada? Do you think adopting the European version is a better way to go? Yeah, I would definitely advocate for that.
I would say move away from this discretionary standard and look at what the research tells us is most important for the majority of children of divorce. And that is that children maintaining meaningful relationships with both parents in a co-parenting kind of relationship. And also shielding them from conflict which co-parenting and shared parenting is best suited for.
In this video, Dr. Edward Kruk, who is an Associate Professor of Social Work at the University of British Columbia, specializing in child and family policy, explains what is meant by the best interest of the child and how such determinations are made.
As a child and family social worker in Canada and the U.K., Dr. Kruk has practiced in the fields of welfare rights, child protection, school social work, hospital social work, and family services.
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