The subjective factors that are key to a best interests analysis
in child custody...
(67) Among the states that have acted, many fail to provide guidance on the consideration courts should give to deployments in change of circumstances determinations and/or best interests analysis. (68) Thus, in a majority of states, these findings are entirely subjective and based on a particular judge's personal value system.
Indeed, the court states, "but for the mother's deployment in 2004," the original custody order "might well remain in effect today." (130) Subsequently, New York has essentially codified the circumstances of Diffin II--deployments alone are a per se "change in circumstance" justifying modification proceedings; and judges have full discretion to determine what weight to give deployments in their best interests analysis. (131)
Continual litigation of initial custody determinations is more likely because an argument can always be made for modification under the subjective best interests analysis. (166) Further, this system not only encourages re-litigation of custody orders, but fosters calculated decisions which are also harmful to children, such as the use of experts and witnesses that denigrate the character of the other parent, and delay tactics which may favor a parent who has physical custody under a temporary order.
(141) Although the court found the contract unenforceable and therefore acknowledged the surrogate as the legal mother, after a best interests analysis
the court awarded custody to the genetic father and his wife.
The best interests analysis
includes the wishes of the person and states that the person's desire not to be sterilized must weigh heavily against authorizing the procedure.
The best interests analysis is complicated because every course of treatment will normally involve risks as well as benefits, and various treatment alternatives will often be available.
The difference between therapeutic and non-therapeutic treatment is important for the best interests analysis. As every form of medical treatment constitutes an infringement of the patient's integrity, parental consent based on the parents' assessment of the child's best interests is required to protect the child from non-beneficial intrusions.
The best interests analysis is different where sterilisation is suggested for therapeutic purposes, for example to remove a cancerous uterus.
Since these children get some pleasure (however primitive) out of living and suffer no pain, any best interests analysis
would insist that any newborn who can confidently be predicted to have such a future should have its life prolonged, even by invasive or aggressive means.
(5) The addition of this factor to the best interests analysis creates a custody framework that is more parent-centered rather than child-centered.
(90) The best interests analysis tends to focus heavily on the stability of each parent and each parent's ability to provide the minor child with a safe and secure environment.