Between the law and itself: An examination of the best interests of the child standard in the New York city family court

Abstract

This article describes a pilot research study done by the author which focused on the judicial implementation of the “best interests of the child” standard, also known as Article 5, Section 70 of the New York State Domestic Relations Law. This is the statutory principle that guides determinations of child custody in the USA. The ambiguous nature of this law grants judges significant discretion when determining the custodial arrangements for children, as it does not explicitly define what constitutes the best interests of a child. The lack of consensus surrounding this law results in marked inconsistencies in its application. In the absence of external guidance, the author presumed that judges rely heavily on their individual knowledge and conceptualization of childhood when making custody decisions, especially those regarding facts relayed by or about children. Through in‐depth interviews conducted with seven judges from the City of New York, this study sheds light on this complex and essential issue. By incorporating insights from sociological theories of law and childhood, this study provides further insight into how judges arrive at their rulings and can be used to assist in improving the lives of families who must interact with the legal system.

The myth of gender neutrality in family court: A clinician's perspective on determinations of “the best interest of the child”

“…Unfortunately, as this paper and so many others in this volume and elsewhere show, everyday experience in family court reflects the opposite attitude about the role of the court. These errors that ignore this seminal work on the needs of children are usually based on cultural and personal biases—in other words, misogyny (Milchman, 2017, 2018; Ingber, 2023). Unfortunately, their message has fallen on deaf ears in the current practices of family court.…”