An Off-label Use of Parental Rights? the Unanticipated Doctrinal Antidote for Professor Mnookin’s Diagnosis
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چکیده
In his seminal article, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, Robert Mnookin noted the trend in custody law away from deference to “natural parents” (a term of the times) and toward an increased focus upon children’s best interests, implemented through individualized adjudications of those interests. He devoted much of the article to arguing that the best-interests standard is fraught with problems in its application, and he called for solutions that move away from a judicial application of this standard whenever possible. But Mnookin in no way rejected the idea that custody law should be designed to serve children’s interests. The central wisdom of the article lies in the distinction Mnookin drew between a best-interests principle, relied upon to develop a legal regime, and a bestinterests standard, applied by custody adjudicators in individual cases. Children’s interests would be far better served, Mnookin argued, if less was left to courts’ assessments of those interests. Mnookin pursued this idea by outlining a better approach to custody decisionmaking in both the child-protection and private-custody contexts. This outline is shaped by his distrust of individualized adjudication and his embrace of the “psychological parent” theory rather than by an interpretation of the law. Indeed, in this remarkably prescient article, perhaps the only thing that Mnookin did not foresee was the doctrinal basis that would emerge for his prescriptions: The constitutional rights of parents, whose scope was just beginning to be developed at the time the article was published, have come to embody, and to a considerable extent protect, Professor Mnookin’s child-
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تاریخ انتشار 2014