Best Interest of the Child

EVERYTHING in family law revolves around the best interests of the child. Whether it is a divorce proceeding, modification of child support, or an adoption; the court’s primary concern is the  ultimate safety and well-being of the children who will be impacted. The hope is that by protecting the best interest of the child, the child can grow into a self-sufficient adult.

Section 402 of the Uniform Marriage and Divorce Act has provided five factors to help determine what is in the Best Interest of Child. Although Section 402 is specifically related to determining custody, the factors can be used in other proceedings as well.

Section 402 of the UMDA states:

The court shall determine custody in accordance with the best interests of the child.  The court shall consider all relevant factors, including:

  1. The wishes of the child’s parent or parents as to his custody;
  2. The wishes of the child as to his custodian;
  3. The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
  4. The child’s adjustment to his home, school, and community; and
  5. The mental and physical health of all individuals involved.

Zablocki v. Redhail, 434 U.S. 374 (1978)

Facts: Redhail, a Wisconsin resident, was denied a marriage license because of his failure to comply with a Wisconsin statute. However, under the statute, Redhail is unable to enter into a lawful marriage as long as he is unable to make child support payments. For two years, Redhail was unemployed and indigent.

Issue: Whether a Wisconsin statute that requires a certain class of residents to obtain a court order granting permission to marry is unconstitutional.

Procedural History: The US District Court held the statute unconstitutional under the Equal Protection Clause and enjoined its enforcement.

Wisconsin’s argument: The statute was intended to establish a mechanism whereby persons with support obligations to children from prior marriages could be counseled before they entered into new marital relationship and incurred further support obligations.

Holding: The statutory classification cannot be justified by the interests advanced in support of it. Affirmed.

Reasoning: The right to marry is of fundamental importance for all individuals. Loving v. Virginia. Additionally, if the “right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.” Reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. However, the Wisconsin statute clearly does interfere directly and substantially with the right to marry.

Powell’s concurrence in the judgment: The majority sweeps too broadly in an area which traditionally has been subject to pervasive state regulation. Powell does not agree with the level of scrutiny and the lack of “any principled means for distinguishing between” regulations that “directly and substantially interfere” and “reasonable regulations that do not significantly interfere.” Powell advocates for an “intermediate scrutiny.”

Stevens concurrence in the judgment: Also agrees that the Court could have ruled more narrowly. There is a difference between classifications based on marital stauts and those that determine who may lawfully marry. Laws prohibiting marriage to a child or a close relative also interfere directly and substantially with the right to marry. However, under the Wisconsin statute, a person’s economic status may determine his eligibility to enter into a lawful marriage – this is unconstitutional.

Rehnquist’s dissent: Agrees with Powell’s reasons for rejecting the Court’s conclusion that marriage is the sort of “fundamental right” which must invariably trigger the strictest judicial scrutiny. Believes that under the Equal Protection Clause and Due Process Clause, the statute only needs to pass a “rational basis test.” The State has an exceptionally strong interest in securing as much support as their parents are able to pay.

Loving v. Virginia, 388 U.S. 1 (1967)

Facts: Loving, a white man, and Jeter, a black woman were marriage in the District of Columbia. Shortly after their marriage, the Lovings returned to Virginia and established their home. Subsequently, a grand jury indicted the Lovings with violating Virginia’s ban on interracial marriage. The Lovings plead guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence on the condition that the Lovings leave Virginia and not return together for 25 years. Virginia was one of 16 states at that time which prohibited and punished interracial marriages. Virginia argued that the statute did not constitute an invidious discrimination based upon race because it punished whites and blacks equally.

Issue: Whether a Virginia statute which prevents marriage between persons on the basis of racial classification violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.

Procedural History: The Supreme Court of Appeals of Virginia upheld the constitutionality of the antimiscegenation statute and affirmed the convicted.

Holding: The Lovings’ convictions were reversed.

Reasoning: The state is correct that marriage is a social relation subject to the State’s police power, however, powers are limited by the commands of the Fourteenth Amendment. Racial classifications are subjected to the “most rigid scrutiny” and there is no legitimate overriding purpose independent of invidious racial discrimination. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

Borough of Glassboro v. Vallorosi, 117 N.J. 421 (1990)

Facts: A Borough of Glassboro ordinance limits residence in certain districts to stable and permanent “single housekeeping units” that constitute either a “traditional family unit” or its functional equivalent. The Borough conceded that the ordinance was to prevent groups of college students from living together.

Issue: Whether a group of ten unrelated college students constitute a “family” within the definition of a restrictive zoning ordinance.

Procedural History: The Chancery Division concluded that the relationship and living arrangements among Vallorosi and the other college students demonstrated the “generic character” of a family. The Appellate Division affirmed.

Holding: Affirmed the judgment of the Appellate Division.

Reasoning: Vallorosi and the other students often ate meals together, cooked for each other, and shared the household chores, grocery shopping, and yard work. In addition, a common checking account paid for food and other bills and they shared the use of a telephone. Although Vallorosi and the students are uncertain of living arrangements after graduation, their relationship “shows stability, permanency and can be described as the functional equivalent of a family.”

Penobscot Area Housing Development Corp. v. City of Brewer, 434 A.2d 14 (1981)

Facts: The Penobscot Area Housing Development Corp. is a nonprofit organization that provides housing for retarded citizens. The Penobscot Housing Corp. was denied an occupancy certificate for a house it purchased because the home was to be used as a “group home for six adults or older minors” which did “not meet the terms of the City of Brewer’s zoning ordinance as a single family.”

Procedural History: The Superior Court affirmed the Board’s affirmation of the Brewer City enforcement officer.

Issue: Whether the requirement of a domestic bond would have been met by the relationship forged among the residents themselves as they lived and worked together.

Holding: Rejected the Penobscot Area Housing Corp’s position because the concept of “domestic bond” within the context of the ordinance implies the existence of a traditional family-like structure of household authority.

Reasoning: The reviewing court’s function is only to determine whether the decision of the Board of Appeals was unlawful, arbitrary, capricious, or unreasonable. Relationships other than those based on blood or law satisfy the ordinance. The domestic bond requirement is not met because most residents would only reside in the home for one to one and a half years.

Village of Belle Terre v. Boraas, 416 US 1 (1974)

Facts: The Village of Belle Terre is located on Long Island’s north shore and is inhabited by 700 people. Belle Terre restricts land use to one-family dwellings and Boraas became a colessee with five other college students. The Village of Belle Terre  defines “family” as “One or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family.”

Issue: Whether the zoning ordinance interferes with certain fundamental rights such as the right to travel, immigrate to and settle within a State, barring people who are uncongenial to the present residents…and that the ordinance is antithetical to the Nation’s experience, ideology and self-perception as an open, egalitarian, and integrated society.

Holding: The zoning ordinance is upheld.

Reasoning: Zoning ordinances are legitimate police powers of the state, there is no fundamental right involved, and therefore, the zoning ordinance only needs to be “reasonable, not arbitrary” and bear a “rational relationship to a permissible state objective.”

Dissent (Justice Marshall): The classification burdens the students’ fundamental rights of association and privacy guaranteed by the First and Fourteenth Amendments. Therefore, the ordinance should not just be subjected to a rational basis review. Also, the Village of Belle Terre is free to limit the density of occupancy but cannot limit the density only in homes occupied by unrelated persons – the Village is then regulating the way people choose to associate with each other within the privacy of their own homes.

Braschi v. Stahl Associates Company, 74 N.Y. 2d 201 (1989)

Facts: Braschi lived with another male Blanchard in a rent-controlled apartment in New York for eleven years. Blanchard died in 1986 and subsequently, Stahl Associates Company served notice on Braschi that he was a mere licensee with no right to occupy the apartment since only Blanchard was the tenant of record.

Procedural History: The Supreme Court concluded that Braschi was a “family member” within the meaning of the rent control regulation based on the interdependent nature of Braschi’s 10 year relationship with Blanchard. The Appellate Division reversed when it concluded that the regulation provides non-eviction protection only to “family members within traditional, legally recognized familial relationships.”

Issue: Whether Braschi demonstrated a likelihood of success on the merits that he would be included in the term “family” as used within the rent-control code.

Holding: Yes, Braschi demonstrated this likelihood. Reversed the Appellate Division decision and remitted.

Reasoning: “Family” was not defined in the rent-control code. The rent-control regulations were intended to protect against sudden eviction and “prevent exactions of unjust, unreasonable, and oppressive rents.” This intended protection should not rest on “fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life.”

Dissent: The plurality adopted a definition of family which extends the language of the regulation. The court “has expanded the class indefinitely to include anyone who can satisfy an administrator that he or she had an emotional and financial ‘commitment’ to the statutory tenant.”

Baker v. State, 170 Vt. 194 (1999)

The benefits and protections incident to a marriage license have never been greater and include:

  • The right to receive a portion of the estate of a spouse who dies intestate and protection against disinheritance through elective share provisions
  • Preference in being appointed as the personal representative of a spouse who dies intestate
  • The right to bring a lawsuit for the wrongful death of a spouse
  • The right to bring an action for loss of consortium
  • The right to workers’ compensation survivor benefits
  • The right to spousal benefits statutorily guaranteed to public employees, including health, life, disability, and accident insurance
  • The opportunity to be covered as a spouse under group life insurance policies issued to an employee
  • The opportunity to be covered as a spouse under group life insurance policies issued to an employee
  • The opportunity to be covered as the insured’s spouse under an individual health insurance policy
  • The right to claim an evidentiary privilege for marital communications
  • Homestead rights and protections
  • The presumption of joint ownership of property and the concomitant right of survivorship
  • Hospital visitation and other rights incident to the medical treatment of a family member, and
  • The right to receive, and the obligation to provide, spousal support, maintenance, and property division in the event of separation or divorce