Over the last few months I have tried to debate the adverse effects of the very premise, or basis for Family law in the US and many Western Countries – the Best Interests of the Child (BIC). It has been a debate that has lead me to listen to the views of people on this forum who support Equal parenting, the policy that the Reform of Child Custody website was established to support I believe. I have been told me that it isn’t possible to seriously question the use of BIC. It has been debated in the UK parliament, for four hours last Christmas and as can be seen in the notes below it is a central issue in debates elsewhere.
Here are my views:
Relationships between parent and child are fragile, especially when there is a dispute with the other parent. To maintain your relationship with the child you need to know that the courts will support you if you are a decent parent. The parent needs that affirmation from the courts that they are important to their child in order to do their job as parents well. No one can guarantee what the courts will decide is in the child’s best interests so this creates a jeopardy that will always harm the parent/child relationship.
Not only does this happen, but as this same BIC principle is used every time the courts are approached a multiple jeopardy is created. You may manage to prove to the court that contact with yourself is in your child’s interests the first time, only to find that they have reversed their view if you approach the court again.
The views of the child about contact with a parent are sought under the tests applied to uphold BIC, but these can only be given under duress where there is a dispute between the parents about whether one of them should have any contact with the child. Allowing their to be the constantly threatened dispute about whether one parent should have any contact, as basing decisions on the BIC principle does, means that more and more children are forced to give their views under these circumstances.
Finally the interests of the parents (or grandparents) cannot be considered at all by the family courts. The loss to yourself, if you are a decent parent and think anything of your child, is a very great issue to a parent. This cannot be considered by the family courts whilst the best interests of the child are the paramount consideration. Treating all parents equally using BIC creates a situation where the interests of decent parents, who have done their best for their child, are given as little consideration (i.e. nil) as those parents who have shown no consideration for the child.
That is a summary of my views on family law. If you champion children’s rights you automatically weaken the parent’s rights, and any attempts to reconcile the two will be mired in controversy. I propose the best interests of the child should be a legal priority but not the paramount consideration, thus allowing parents to have some rights over and above the balance of the best interests of the child test.
Where you have family law professionals declaring that children should choose their parents, and such large numbers of natural parents being excluded from their child’s lives against the parent’s wishes already I believe you have to look at the very basis for our family laws.
Yours sincerely,
Graham
Notes:
While it might be argued as an abstract matter that in some sense the child is always harmed if his or her best interests are not considered, the law of domestic relations, as it has evolved to this point, treats as distinct the two standards, one harm to the child and the other the best interests of the child. The judgment of the Supreme Court of Washington rests on that assumption, and I, too, shall assume that there are real and consequential differences between the two standards.
Troxel v Granville, dissenting opinion by Justice Kennedy
It must be recognized, of course, that a domestic relations proceeding in and of itself can constitute state intervention that is so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated. The best interests of the child standard has at times been criticized as indeterminate, leading to unpredictable results. See, e.g., American Law Institute, Principles of the Law of Family Dissolution 2, and n. 2 (Tentative Draft No. 3, Mar. 20, 1998). If a single parent who is struggling to raise a child is faced with visitation demands from a third party, the attorney’s fees alone might destroy her hopes and plans for the child’s future. Our system must confront more often the reality that litigation can itself be so disruptive that constitutional protection may be required; and I do not discount the possibility that in some instances the best interests of the child standard may provide insufficient protection to the parent-child relationship. We owe it to the Nation’s domestic relations legal structure, however, to proceed with caution.
Troxel v Granville, dissenting opinion by Justice Kennedy
“If you hear a lawyer use the phrase 'the best interests of the child', there is a 99.99% chance they are lying.” Dads on the Air website opinion.
The single most abusive act the state can perpetrate against its citizenry is the removal of a child from a fit and proper parent, but that is exactly what the Family Court does hundreds of times every week in removing children from their fathers, in the process peddling the biggest lie of all, that this is in the best interests of children? Dads on the Air submission to Australian government on proposed reforms.
The Attorney General’s Department was concerned that “should an equal time presumption be introduced into the Family Law Act, one possible outcome of its operation could be that it would effectively replace the principle that the best interests of the child are the paramount consideration…”. Australian government reform of family law proposals.
Sir Thomas Bingham said at 128:'First of all, and overriding all else as provided in s 1(1) of the 1989 Act, the welfare of the child is the paramount consideration of any court concerned to make an order relating to the upbringing of a child. It cannot be emphasised too strongly that the court is concerned with the interests
of the mother and the father only insofar as they bear on the welfare of the child.