Deciding between parents in a contested child custody dispute is one of the most daunting challenges a court can face. The relevant statute directs simply that the court make its decision on the basis of “the best interests of the child.” 1 The statute essentially stops at this level of abstraction. It provides no objective or operational definition of “best interests of the child,” meaning that it remains an elusive concept, an aspiration really, rather than an operational standard.
Underscoring the subjectivity and complexity of the concept, judicial proclamations have made clear that the “only absolute in the law governing custody of children is that there are no absolutes” 2 and that the court must base its determination on the totality of the circumstances. 3 As often stated by the Court of Appeals, the decisional law eschews absolutes in favor of elucidating “policies designed not to bind the courts but to guide them in determining what is in the best interests of the child.” 4 All of which leaves the litigation landscape immersed in a thick fog of subjectivity and it leaves the lawyers and judges who traverse it in constant search for points of clarity. A review of recent decisions reveals at least one such point.
An Elusive Aspiration
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