Vivek Sankaran Warns against Unfettered Judicial Discretion of Best Interests “Standard”

Vivek Sankaran (’01), Clinical Professor of Law and Director of the Child Advocacy Law Clinic at The University of Michigan Law School, contributed an opinion to The Imprint reviewing the broadly discretionary “best interests of the child” approach used in making decisions for children in foster care, favoring the “gold standard” of the Indian Child Welfare Act (ICWA) (“Best Interests Standard is a Judicial False Idol,” Dec. 6). “The fact that this ‘standard’ [‘best interests of the child’] allows justice to be dispensed based solely on the predilections and biases of individual judges should worry us all. Whether a child is separated from their parents, placed with kin, or permanently deprived of their legal relationship with their parents hinges on whose courtroom their case is heard in and the personal beliefs of that judge. It creates justice by luck. . . . While the Supreme Court controls the fate of ICWA, the rest of us can use ICWA as our North Star on what actual standards in child protection cases can look like. We should use the precariousness of ICWA as our invitation to rewrite child protection statutes and reject the falsity that the best interests of the child is an actual legal standard.”