Presented by Waldo E. Johnson, Jr. and Wayne L. Salter
The "best interest of the child" doctrine, as understood in child welfare practice and family law, is helpful in understanding the disruption of the father-child legal and social relationships, whether at the request of the father or over his objections. However, the term is used broadly. It is constructed and understood differently depending on the context. At this moment the term does not afford common denominators that stand in for child-well being across the legal spectrum.
The best interest of the child doctrine was initially articulated in the context of child abuse and neglect cases as an administrative tool for determining whether children should remain in parental care. Child welfare has viewed paternity establishment as a means of identifying fathers for the purpose of legally disconnecting them from the child to move toward adoption or other permanency plans. In the child welfare literature, the term has emerged from a deficit perspective.
Increasingly, the "best interest of the child" also is invoked in a variety of other situations, including child support, visitation agreements, custody determinations, adoption, and paternity actions. In particular, child support has been in the forefront, establishing fatherhood in many cases for the purpose of collecting financial support. Examining the "best interest of the child" doctrine from the child welfare perspective suggests it is an important yet incomplete framework for decision making regarding the preservation or termination of the father-child relationship. In contrast, from the perspective of family case law, the meaning of the "best interest of the child" in regard to the father-child relationship appears to be determined on a case by case basis without specific reference to its core concepts of safety, permanency and child well-being. Variation in state statutes and policies regarding paternal rights and responsibilities further contribute to the lack of a common understanding of how to apply the principal of the best interest of the child with regard to fathers. Reliance on biology alone raises concerns. A more apt consideration is best characterized as "biology plus" biology plus time, effort, support, emotional engagement with the child and socialization. The law and practice around paternity disestablishment should focus on these critical factors when ascertaining whether the best interest of the child are served in maintaining or terminating a non-biological parent's rights.