When a court determines which divorcing parent should get custody of a child, or when a child should be moved from abusive parents to foster parents, it often considers which parent would better serve “the best interests of the child.” Though this standard means different things in different states, courts often consider versions of the following factors:

• The importance of family integrity and preference for avoiding removal of the child from his/her home 

• The health, safety, and/or protection of the child 

• The importance of timely permanency decisions 

• The assurance that a child removed from his/her home will be given care, treatment, and guidance that will assist the child in developing into a self-sufficient adult 

• The emotional ties and relationship between the child and his or her parents, siblings, family and household members, or other caregivers

• The capacity of the parents to provide a safe home and adequate food, clothing, and medical care  

These factors suggest what decision-makers should consider when determine who should get ownership of art. Obviously, paintings are not children; art has no interests of its own. But people affiliated with the art have interests in the art. The current owner of the art has an interest that the art not be removed from its collection. Current and past owners of the art have an interest that art be safe: that it is minimally vulnerable to weather, fire, theft, and vandalism. These parties have an interest that the art be in well cared for, which means it is cleaned, preserved, and protected as much as possible from the decaying effects of time. Artists have an interest that art be displayed, marketed, or performed according to their intentions. Society has an interest that the art be accessible to the public, and the owners, if they are museums, have an interest that the art is accessible to scholars. When a country can validly claim that a piece of art constitutes its cultural heritage, that country has an interest in the art being displayed in a place and manner such that citizens of that culture can appreciate the cultural significance of the art. Like the emotional ties and relationship between parent and child, the cultural ties and relationship between a country and a piece of art should count in determining where the art ends up.

A decision-maker should evaluate which potential owner would best satisfy these interests. In what hands will the art be maximally safe, accessible to the public and scholars, displayed as the artist intended, and able to function as a piece of cultural heritage? When these interests conflict – when, for instance, the Machu Pichu sculptures will be safer and more accessible to scholars at Yale, but better be able to serve as cultural heritage in Peru – decision-makers will have to determine which factors are more important. The security of the art should be the most important consideration, since everyone loses if the art is destroyed or vandalized. 

Decision-makers may wish to disregard certain factors in making their decision. In the family law case, Connecticut has said that the socioeconomic status of a parent should not play a role in determining child custody. Similarly, judges may wish to consider a country’s material no more than necessary in determining art’s ultimate owner. Though the wealth of a country influences its ability to protect and display art, it does not affect the significance of the art in that country’s culture. Directing decision-makers not to consider a country’s GDP (except as it relates to safety and security) may avoid charges of paternalism.  

Determining the best interests of the art is complicated. Art has many more owners than children typically have parents, and each of these owners has their own set of interests, which must be weighed against each other in a complicated equation. It is also unclear the extent to which society has an interest in art it does not own, since future generations could benefit from the continued existence of the art even if they do not own it. Despite these complications, the family law standard of “the best interests of the child” begins to suggest factors that will help us determine which potential owner will serve the best interests of the art.