Island Voices
How the law protects our children
By Ronald T.Y. Moon
Chief justice of the Hawai'i Supreme Court
This is the first in a series of articles from Hawai'i's Judiciary marking Law Week in Hawai'i.
Each year, the Hawai'i Judiciary, along with other state courts and bar associations, participates in Law Day programs. This year's Law Day theme, "Protecting the Best Interests of Our Children," marks the first time in the history of this national program that an emphasis has been placed on the role of the law, lawyers and the courts in addressing the needs of children and their families.
It provides a special opportunity for Hawai'i judges to be involved in activities to help citizens better understand how the judicial system strives to protect the interests of our children.
One of the greatest rewards of being a judge is helping improve children's lives by presiding in court cases involving children's issues. However, as rewarding as these cases can be, they are often heart-wrenching for judges as they involve the most vulnerable children in our society: abused, neglected and abandoned children; youth who find themselves in the juvenile justice system; child victims of crime; and children affected by their parents' divorce or separation.
To protect these children, American courts and legislatures have been guided by the legal standard "best interests of the child" for well over a hundred years.
The notion of special protections for children did not achieve prominence in American law until the late 19th century. Before that time, children's rights in family law, protections against child abuse and the availability of a juvenile justice system were virtually unheard of. There were no laws requiring children to attend schools, and children were often expected to financially support themselves and their families.
During the Industrial Revolution, great factories were built and the population grew rapidly. Immigrants from many countries came to work in American industries. This was a time of hardship and poverty for many people.
Reformers began working in the cities to relieve potentially life-threatening conditions, and what concerned them most was the suffering of children. The reformers saw many children who were orphaned and abandoned, children who were hungry and lacked warm clothes. They saw children who did not attend school and who worked long hours in the factories. They saw children who were mistreated by their parents. They saw children who were arrested and sent to jail for minor, nonviolent crimes.
The reformers believed that an enlightened society must look after the welfare of its children, and urged the establishment of a new court — a juvenile court — to recognize the special needs and situations of children.
American lawmakers eventually agreed that children should be treated differently from adults and that government was responsible for their protection. Juvenile court laws were passed, and the "best interests of the child" became the legal standard used to judge cases brought before the courts.
Today, statutes in all 50 states incorporate the phrase in provisions addressing adoption, child abuse and neglect, foster care, child custody, education reform and juvenile delinquency.
In Hawai'i, the delicate and difficult process of deciding issues in child-related cases often falls to judges and mediators. Decision-makers attempt to resolve issues based on the facts of each case so the particular needs of the children involved can best be considered.
When a child is in the care of the state, whether in foster care or in institutional placements, "best interests" is an important measure of whether a continuity of services meets the child's needs. Is the child receiving needed medical attention? Is the child being educated appropriately? Is the state facilitating the child's permanent placement with a nurturing family? In appropriate cases, is the state facilitating the child's return to his or her biological family with necessary support services?
In matters related to parental divorce or separation, the phrase has evolved to become the primary consideration of judicial decision-making.
While the rights, wishes and desires of the parents are considered in child-custody cases, it is, nevertheless, the ultimate welfare of the child that controls the decision of the court.
In other venues — such as legislative forums, juvenile court improvement projects or child advocacy activities in which people work to improve systems — the best-interest standard forms the basis for evaluating laws and their implementation. For example, are these family and juvenile laws, and their implementation, sufficiently child-centered?
The phrase has rightfully retained its special place in American law because of the need to keep the interests and perspective of the child foremost in the minds of adult decision-makers. "Best interests of the child" embodies an aspiration against which legal policy and its implementation must be measured.
As the law grapples with specific child and family dilemmas, it must integrate knowledge of the needs of growing children in different circumstances. How this term is interpreted and how it evolves will parallel our vision of society's responsibility for our children and will thus shape our future.
