Report No. 83
1.9. Cardozo's views as to "best interests theory".-
As to the criterion to be adopted in such matters, Cardozo, sitting as a judge in the New York Court of Appeals,1 made the following observations pertinent to the "best interests" theory:-
"The Chancellor, in exercising his jurisdiction, does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other, or indeed against anyone. He (the Chancellor) acts as parens patriae to do what is best for the interest of the child. He is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights as between a parent and a child, or as between one parent and another........Equity does not concern itself with such disputes in their relationship to the disputants. Its concern is for the child."
The concept of "welfare of the child" does find a mention in the Act of 1890. However, it is like a thread that is visible at some places, but gets blurred elsewhere by being entangled with others.2 It needs now to be painted in glowing colours.
1. Finlay v. Finlay, (1925) 148 NE 624 (626) (NY).
2. See para. 6.40, infra.