Distributing Children As Property: The Best Interest Of The Children Or The
Best Interest Of The Parents?
By: Darya Hakimpour*
Recognizing that half of marriages in the United States result in divorce1 and that almost
half of children born in the United States are born out-of-wedlock, 2 it comes as no surprise that
child custody remains a highly debated and controversial issue within the legal field. Studies
show that two out of every five children in the United States will directly feel the repercussions,
familial breakdown, and dramatic lifestyle changes that stem from divorce. 3 By swinging the
pendulum from one extreme arrangement to the other, guidelines and presumptions regarding
child custody have repeatedly gone from one failing idea to the next. 4 This cyclical disaster
leaves almost half of our nation’s children as innocent victims who suffer the devastating
consequences of a recurring legal failure. 5
In many states, including California, the standard currently used to determine child
custody is “the best interest of the child.” 6 There are numerous considerations that the court may
take into account when it decides what arrangements should be made for the child. These factors
include: the welfare of the child, the amount of contact the child has had with each parent, and
J.D. 2016, Whittier Law School; B.A. 2012, University of California Irvine. I would like to thank Professors Erez
Aloni and Deborah Forman for their support, encouragement and helpful feedback.
1 See Stephan J. Bahr, Social Science Research on Family Dissolution: What It Shows and How It Might Be of
Interest to Family Law Reformers, 4 J. L. & Fam. Stud. 5, 5 (2002).
2 Michelle Castillo, Almost Half of First Babies in the U.S. Born to Unwed Mothers, C.B.S. NEWS, (Mar. 15, 2013),
3 Bahr, supra note 1, at 5.
4 See generally Linda D. Elrod, Historical Perspective, in CHILD CUSTODY PRACTICE AND PROCEDURE § 1: 5 – 1: 7
(Westlaw 2015) (a presumption of custody for the father, then the “tender years” doctrine presuming custody for the
mother, and finally the “best interest” test advocating for joint custody).
5 See Bahr, supra note 1, at 5.