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January 01, 2019 Introduction

Best Interests of Children in the Courts and Seeking the Wisdom of Solomon

By Judge Stephanie Domitrovich

The story of the wisdom of King Solomon from approximately 970 B.C. is known as one of the earliest accounts of a child custody dispute. This biblical version concerns two women who gave birth to sons and lived together in the same home. During the night, one infant was smothered and died. The woman whose son had died allegedly switched her dead baby with the other woman’s living baby as she slept. When the other woman awoke, she realized the scam and sought justice in the best interest of her living child before King Solomon. Because both women claimed the child was hers, Solomon threatened to use a sword to cut the living child in two. He would then give half to one woman and the other half to the other. The woman whose son was still alive pled with Solomon not to kill the child but to give the living baby to the other woman. However, the other woman, whose son had died, preferred Solomon cut the living child in two so that neither of them would have him. From their responses, Solomon knew the real mother was the woman who did not want the child killed and gave the child to her.

When I was a brand-new trial judge more than 28 years ago, I wondered when I would apply the wisdom of Solomon, and then this case entered my courtroom: A three-year-old is lying in a hospital’s intensive care unit with a shunt in his brain and has only three months to live. Paternity testing at that time was taking more than three months for results, so I could not wait for those results. Two women claimed to be the biological mother of this one child, and neither would back down. I asked for medical insurance cards from each woman for this child to assess the credibility of their stories. I discovered one card was activated yesterday and the other used the day before—how could that be, I wondered. I then realized my efforts were becoming fruitless, so I made the only ruling I could by using the metaphorical “sword” of Solomon: “Since the court cannot determine who the real mother is, I have no choice but to place this child in foster care, and neither one of you will have this child, so the child will die in the arms of a complete stranger.”

As I began to leave the bench, I heard a woman’s voice shout: “Stop, Your Honor, I am not the real mother. She is!” While pointing to the other woman, she tells a heart-wrenching story of how she cared for the other woman’s child when that mother was involved with drugs and had abandoned this child shortly after birth. “I felt I psychologically was the mother,” she said. And then she candidly stated: “But the biological mother is now clean and sober, and it would be unfair not to return the child to her.” Custody was thereby adjudicated in favor of the identified biological mother.

Although delighted this situation with the two mothers was solved in the best interest of this dying child, I recall experiencing anxiety and frustration in arriving at this result and how I had to apply Solomon’s wisdom. The best interest of child standard was considered at that time a mere “broad brush” tool providing no guidance to the fact-finder. Mixed opinions surfaced over the years either praising “best interest” as the highest reliable standard, as no better concept existed, or ridiculing this standard as being far too subjective. Judges would subjectively apply their own personal experiences with children, thereby creating inconsistent results not in the best interest of children.

To achieve more consistent, fact-based results, best interest factors were developed. For example, Article 3 of United Nations Convention on the Rights of the Child expressly provides factors to evaluate and balance each specific situation regarding a specific individual child. Factors assess the family dynamics; family interactions; environmental variables; the child’s preferences; the child’s physical, emotional, and psychological needs; and other relevant factors. By statute and case law, state trial jurisdictions developed similar factors to guide judges in deciding the best interest of a child. Judges now apply their findings and conclusions from these factors to “fit” together the various separate puzzle pieces of a child’s life holistically to achieve decisions in the best interest of a child.

The best interest concept is also applied to many areas of the law, such as custody, visitation, adoption, abuse, neglect proceedings, and guardianships. Our articles in this edition provide readers with perspectives and guidance on the best interest of a child. For instance, Judge Linda Marquis and Yasnai C. Rodriguez-Zaman, in their article entitled “#BestInterest,” explain the admissibility issues of social media posts. Judge Lisa L. Atkinson has written an introspective article entitled “Best Interest of the Child: A Tribal Judge’s Perspective.” W. Milton Nuzum III and Kyana D. Pierson discuss the huge impact drug addiction has had on grandparents having to care for their grandchildren in kinship placements in Ohio. Judge Samuel A. Thumma and Chloe Braddock provide “Ten Tips for How Judges Can More Effectively Communicate with Children in Court.” Federal Judge Thomas Tang, the first Chinese American appointed to the federal court of appeals, is honored in our inaugural column called Profile in Judicial Courage for courageously sentencing two students to an unpopular but appropriate sentence of probation for murder. Our Waymaker, Federal Judge Maurice B. Cohill Jr., created a juvenile justice research institution to increase the effectiveness of the juvenile and family justice system nationally and is heralded as “A Champion for Children.”

The authors aim to provide you with valuable and inspirational insight into the best interest of a child concept. We applaud our readers whose daily efforts and hard work include “fitting” the puzzle pieces of a child’s life together to achieve that child’s best interest—for you are indeed on the cutting edge of applying Solomon’s wisdom. 

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Judge Stephanie Domitrovich

Judge Stephanie Domitrovich has served for 25 years as an elected general jurisdiction state trial judge of the Sixth Judicial District of Pennsylvania.