Indeterminacy of the best interests of the child in stereotyped judicial reasoning on parental fitness

Abstract

This article examines the decisional relevance of gender, sexuality, and parenthood stereotypes in judicial assessments of parental fitness under the best interests of the child principle. It begins from the principle’s normative indeterminacy and considers how interpretive openness may enable family normalization and the use of stereotyped premises in judicial reasoning. The study adopts a critical socio-legal approach, using qualitative documentary and case-law analysis. It draws on international human rights standards, Inter-American jurisprudence, evidentiary reasoning, feminist constitutionalism, and biopolitical theory. The analysis shows that stereotypes may function as common-sense generalizations, implicit inferential premises, or expert assessment criteria. On this basis, the article proposes a framework of legal and evidentiary safeguards grounded in substantive equality, anti-subordination, the right to care, heightened judicial reasoning, conventionality control, and proof requirements tied to individualized conduct and demonstrable harm rather than generalized assumptions about identity, family form, or social norms.