Who Will Speak for the Child?

Abstract

It falls to the courts to decide whose ward a child will be when the family unit malfunctions. The failure may be caused by the death, disappearance, or physical or mental incapacity of the mother or father. The question of custody also arises when parental conduct conflicts with community values. But, whatever the reason for the failure, the courts have been granted broad discretion to decide custody according to the "best interests of the child." Many times, the custody award is made to depend on parental rights which have no relevance to a child's welfare. One of the factors which led to the creation of juvenile courts was a recognition that children need protection. Proceedings in these special forums, however, were not truly adversary. Recently, the Supreme Court of the United States has said that a child has the right to counsel in a delinquency hearing. Surely, if the child needs an advocate in a delinquency matter, his need is equally as great in a custody question, when the effect of the court's decision is to determine the child's environment while he develops into an adult.