The Best Interests Legal Standard

Photo of Jeffrey A. Soilson

Often we hear about the best interests legal standard that Judges in the Probate and Family Courts apply to make important decisions affecting the lives of minor children. Custody determinations and appropriate parenting plans are based on this guiding principle. Contrary to common belief, the “best interests” standard is gender-blind. M.G.L. Chapter 208, Section 31 provides that in determining the question of custody “the rights of the parents shall . . . be held to be equal.” In deciding issues involving custody, the overriding concern of the Probate and Family Court Justice assigned to the case must be the promotion of the best interests of the children and their general welfare, not the gender, feelings or wishes of a particular parent.

As a corollary to the “best interests” legal standard, the Supreme Judicial Court in Jenkins v. Jenkins, 304 Mass. 248 , 250 (1939), stated: “In providing for the custody of a minor child, while the feelings and wishes of the parents should not be disregarded, the happiness and the welfare of the child[ren] should be the controlling consideration. It is the duty of the judge to consider the welfare of the child[ren] in reference not merely to the present, but also to the probable future, and it is a subject peculiarly within the discretion of the judge.”

Beyond the statistics, studies and other resources of which Judges, lawyers, mediators, parenting coordinators, and other professionals working within the field of divorce and family law should be aware, children whose parents are involved in a pending custody action, often do have a voice. There are rules authorizing Judges in appropriate cases to appoint attorneys to represent the interests of children. There are procedures in place by which a Judge can appoint a Guardian Ad Litem to investigate and report on what is in a particular child’s best interests. There is a mandatory parent education course that divorcing litigants with minor children must attend, which is aimed toward educating parents about the impact of divorce on children in general. All of this is geared toward promoting, and making important decisions that are in line with, the best interests legal standard.


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