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Best Interest of the Child

November 28, 2009 permalink

Robert Franklin writes three articles on the use and misuse of the slogan 'best intersst of the child'.



The 'Best Interests of the Child' Concept - Misused from the Beginning

November 28th, 2009 by Robert Franklin, Esq.

Even the casual observer of family law and practice can be struck by the astonishing, er, flexibility of the term "best interests of the child." For example, in 1995, a New Mexico court approved of the outright theft of a child by an adoption agency and his subsequent placement with an adoptive couple as in the "best interests of the child."

The boy had lived with the mother and father for all his year and a half of life. One weekend when the father was out of town working, the mother took the child to the adoption agency, lied about the father's whereabouts and gave the child up for adoption. Two days later, the father informed the adoption agency that he had no intention of giving up the child. But the agency kept the child with the adoptive parents anyway and let the glacial pace of the judicial system do the rest.

A year and a half later, the child was deemed to have "bonded" with the adoptive parents and the father was out of luck. The "best interests of the child," you understand, meant that breaking those new bonds was impermissible. At the same time, the "best interests of the child" did permit breaking the bonds between the father and the child. That's what I mean when I say the concept is "flexible."

The conduct of the mother and the agency violated New Mexico civil law, and the father sued them and won a judgment for monetary damages. Those damages were never paid as the agency receded behind the impenetrable veil of bankruptcy.

Given the mutability of the 'best interests' standard, it's interesting to know a little of its history. In 1973, Joseph Goldstein, Anna Freud and Albert Solnit published a book that would have enormous influence on family courts and child protective agencies nationwide, albeit not the one they intended. They were, respectively, a law professor at Yale, a child psychologist and a researcher at the Child Study Center at Yale. Their book was entitled "Beyond the Best Interests of the Child." It was an effort to guide courts and placement agencies that had to decide issues of family dissolution and child custody about how best to do that.

But by 1979, the same authors were so horrified at the misuse of their book by those very courts and child protective agencies that they wrote another one entitled "Before the Best Interests of the Child."

With their first book, they meant well; they truly didn't anticipate the distortions to which judges, social workers and child welfare agencies would subject its message. In it, they were dealing only with cases in which a family had already broken down and required intervention by the state to protect the children. The authors limited their discussion to that. The "best interests of the child" concept was discussed solely as a goal to be obtained after family breakdown.

But the courts and other state agencies had no intention of limiting their use of the book's concepts in the same way the authors did. In direct contradiction to the authors' intentions, states began using the "best interests of the child" concept to achieve family breakdown by state intervention and removal of the children.

That's what horrified the authors and prompted them to publish "Before the Best Interests of the Child" in 1979. Here's what they said:

[W]e believe that a child's need for continuity of care by autonomous parents requires acknowledging that parents should generally be entitled to raise their children as they think best, free of state interference. This conviction finds expression in our preference for minimum state intervention and prompts restraint in defining justifications for coercively intruding on family relationships...

So long as a child is a member of a functioning family, his paramount interest lies in the preservation of his family. Thus our preference for making a child's interests paramount is not to be construed as a justification in and of itself for intrusion. (Emphasis in the original.)

I'll write a bit more on this later, but remember what the authors said: the child's "paramount interests lies in the preservation of his family."

It's a concept that escaped the New Mexico courts back in 1995, even as it continues to escape so many today.

This entry was posted on Saturday, November 28th, 2009 at 1:24 pm

Source: Glenn Sacks blog

Part II: The State Preference for Splitting up Families Using the 'Best Interests of the Child'

November 28th, 2009 by Robert Franklin, Esq.

As I said in my previous post on the "best interests of the child," the authors of the 1973 book, "Beyond the Best Interests of the Child" were so shocked at its misuse by courts, child welfare agencies and adoption agencies, that they wrote another book in 1979 to correct the misinterpretations.

There they clearly stated that the best interests of the child were presumptively served by maintaining intact families unless certain extreme things had occurred. Those things were the death, incarceration or incapacity of a parent, divorce and custody matters, request by a parent to terminate their rights, sexual abuse of a child by a parent, serious bodily injury done to a child by a parent, repeated injury done to a child by a parent and the refusal by the parents to authorize lifesaving medical care for the child. Period. According to the authors, no other situation warranted state intrusion into parental care of children.

Would anyone care to guess which book is cited time and again as authority by appellate courts, and which book is virtually ignored? California civil rights attorney Catherine Campbell wrote in 2000 that "little notice was taken" of the authors' second book in which they strove mightily to stop their first book's being used to take children from parents. It's message, Campbell added "was not what child abuse crusaders wanted to hear, and it was not heard." Indeed. The same year as her article, I did a Lexis/Nexis search of state and federal appellate court opinions. Goldstein, Freud and Solnit's first book had been cited 279 times versus 46 times for their second.

Campbell pointed out that those adults and children who are most abused by the "best interests of the child" are overwhelmingly poor. They are the most apt to be found wanting as parents and least able to combat the system of child removal and placement that Campbell called "a form of legalized kidnapping."

Come to think of it, the New Mexico case I sketched in my first post on this topic involved a man who was poor - he was a laborer. The fact that he provided for his children and loved and cared for them, and ultimately did everything in his power to stop the adoption train that inexorably took his child from him, mattered little. As always, state power is wielded most savagely against those least able to oppose it.

And in the arena of family courts and child welfare agencies, among the relatively powerless must be counted fathers. That's not because fathers are necessarily poor; of course they're not. Fathers aren't necessarily poor in money, but in family court, they are poor in what matters at least as much - rights. The range of methods used to separate fathers from their children is truly astonishing, and often enough justified by "the best interests of the child."

Should a father be informed about the adoption of his child? No, the child is better off with its adoptive parents. If he finds out about the adoption and tries to stop it (as in the New Mexico case), he'll find the child already placed with the new parents and thus its "best interests" lie with them, not him. Should the dad be notified before his child is placed in foster care? Not so much; only about half of them are. What if Mom concealed her pregnancy from him until months or even years later, can he get custody? Probably not, because, well you know, the child would be upset by a new adult entering its life so, sorry Dad. What about a plain vanilla divorce and custody case? Can he get primary custody? Not likely; just 16% of dads in the United States manage that.

But who's griping? It's all in the child's best interests, right?

Back to Goldstein, Freud and Solnit, though. Here's a case that, as the article shows, warrants little comment (Dallas Morning News, 11/27/09). A man and his wife have a "history" of drug use. He walked into a bakery with their baby in a car seat, placed the child on a table, ordered and walked out without the baby. Now, no one would argue that that's appropriate childcare. Obviously it's not. But the question the authors want us to ask is this: "Is it behavior that warrants taking the child from its parents in favor of foster care?" After all,

[T]o acknowledge that some parents...may threaten the well-being of their children is not to suggest that state legislatures, courts or administrative agencies can always offer such children something better...By its intrusion the state may make a bad situation worse; indeed, it may turn a tolerable or even a good stiuation into a bad one."

This entry was posted on Saturday, November 28th, 2009 at 6:37 pm and is filed under Family Law, Children's Rights, Child Protective Services/Child Welfare System. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Source: Glenn Sacks blog

Part III: What if Poor Parents Got the Money We Now Give to Foster Parents?

November 29th, 2009 by Robert Franklin, Esq.

Many times before, I've expressed my trepidations about how various issues regarding children have served to enormously expand state power into private lives. Perhaps no single thing serves this purpose better than the phrase "the best interests of the child." Beneath that banner have marched countless courts, judges, social workers, psychologists, police and child welfare agencies. Inappropriate expansion of state power over family life was the primary concern of Joseph Goldstein, Anna Freud and Albert Solnit, in their 1979 book, "Before the Best Interests of the Child." There they clearly expressed their skepticism about the ability of governments to provide better care than do parents.

But when it comes to expansion of power, governments don't often listen to the voice of reason or moderation. The simple fact is that, given an opportunity, or indeed just an excuse, governments tend to add to their power if they can. That's been proven to be true in family life over the past 40 years or so. Once relatively sacrosanct, the family is now fair game.

As I've written countless times, families find themselves fighting costly tooth-and-nail battles to keep custody of their children over the most trivial and absurd issues. One case in point was the family I wrote about not long ago who committed the unforgiveable sin of photographing their five-year-old girls in the bathtub. Quicker than you can say "It takes a village," the kids were in foster care where they stayed for two months. It cost the parents some $70,000 to wrest control back from the state.

If the "best interests of the child" is the excuse for this vast expansion of state power, the mechanism is money. For every child placed in foster care, and for every day it remains there, a foster parent is paid by the state. Rates vary of course, but, just as one example, the "base" rate paid in Maine for a child with no disabilities, was $500/month in 2008. Some of that is paid by the state and some by the federal government. Whatever you think about the daily, per-child stipends, it's a certainty that there wouldn't be many foster parents without them.

To expand its power, the state needs to make it worth people's while, and payments for foster care do just that. Just to make the purpose of all this clear, civil rights attorney Catherine Campbell pointed out in 2000 that the great majority of children taken by the state and placed in the foster care system were poor. Given that,

If the parents of these children were provided with the same monthly income received by a foster parent, most of their problems would vanish.

Whatever the literal truth of that statement, she makes a good point - as long as the state is spending money on these children, why not give it to the parents instead of to strangers?

Often, children placed in foster care are those of single mothers. That means the state has to make some cursory show of due process of law before separating a the child from its mother. But fathers without custody of their children don't even get that, minimal though it is. An Urban Institute study showed child welfare workers trouble themselves to even contact barely half of the fathers of children they intend to place in care. That's true even though they know the identity of the dad in almost 90% of cases.

Money feeds the beast of state power and "the best interests of the child" is the battle hymn of the republic.

This entry was posted on Sunday, November 29th, 2009 at 9:59 am

Source: Glenn Sacks blog