Document Type
Note
Abstract
Laws are often designed with an eye toward precision. Specific words are chosen, others deliberately removed, with each revision seeking to bring a rule closer to its intended purpose. Despite this deliberate process, even the most curated laws at times fail to serve their intended ends, and instead become sources of harm. This reality, unfortunate and unavoidable, is the irony of law.
This tension is particularly evident in the context of family law, where negative ramifications are felt personally and intimately, and in child custody cases, where the stakes are incredibly high. The best interest of the child standard was designed for judges in these cases to respond to societal transitions dealing with the family.1 Unfortunately, as the needs from those transitions were alleviated, other concerns took their place.
The irony-of-law framework provides a helpful perspective for lawmakers and those evaluating the state of our legal system. While one may justly critique the troubles inherent in the law, they must also remember the lesson of the law’s irony: it is the very characteristics that create the good which allow for the bad. With this background in mind, reformers should be hesitant to completely overhaul our family law institutions, since this effort is bound to come with its own sets of problems.
This Note will explore more fully the interaction between the law’s irony and the best interest standard widely implemented in family law courts. Part I provides a background of the concept of the irony of law, exploring its relationship to the foundation and creation of law. Part II applies phenomenon to the domain of family relations through the best interests of the child standard, looking to the standard more generally and to the Indian Child Welfare Act more particularly. Part III extends this line of thought to family law at large and concludes with a proposal for how those interested in reform should proceed from here.
Recommended Citation
Alesondra Cruz,
Note,
The Best We Can Hope For: The Irony of the Best Interest Standard,
100
Notre Dame L. Rev. Reflection
237
().
Available at:
https://scholarship.law.nd.edu/ndlr_online/vol100/iss3/5