September 11, 2017 Articles

Diverse Family Structure: Reevaluating the Best-Interests-of-the-Child Standard

By Jennifer Johnson and Brenda A. Baietto, Esq.

Due to no-fault divorce and "diverse family structures," children often experience a form of inequality that is largely ignored. With lawyers and judges focused on a liberty that is defined as adults' happiness with their family structure choices, there is little focus on the inequalities these choices create for children. The legal profession readily supports the thinking that a happy adult makes for a happy child, yet we disregard a century of jurisprudence linking the state's interest in natural marriage to children and their formation and the substantial body of literature linking children and communities flourishing with the stable presence within a family of married, biological parents. Nor does the "best interests of the child" standard address this form of structural inequality. Finally, it is only fair to consider the testimonies of the children affected, especially once they are old enough to separate appropriately from their parents, examine their childhoods in an objective manner, and then decide for themselves how fair and just it was.

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