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37 Child. Legal Rts. J. 128 (2017)
Distributing Children as Property: The Best Interest of the Children or the Best Interest of the Parents

handle is hein.journals/clrj37 and id is 133 raw text is: 




Distributing Children As Property: The Best Interest Of The Children Or The
                             Best  Interest  Of  The  Parents?

                                    By: Darya Hakimpour   *


                                    I.     INTRODUCTION

       Recognizing  that half of marriages in the United States result in divorce 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 ofFirst Babies in the U.S. Born to Unwed Mothers, C.B.S. NEWS, (Mar. 15, 2013),
http://www.cbsnews.com/news/almost-half-of-first-babies-in-us-born-to-unwed-mothers/.
' 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 forjoint custody).
  See Bahr, supra note 1, at 5.
6 CAL. FAM. CODE§ 3011 (West, Westlaw through 2016 Legis. Sess.).

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