Advocacy, Respect for Parents, and the Right to an Open Future"
by
Aviva Orenstein
Indiana University School of Law Bloomington
The Various Interests in Custody Determination
During a year-long multi-disciplinary seminar on the "Ethics and Politics of Childhood," a group of scholars with backgrounds in history, law, philosophy, and education, regularly considered the question of children’s autonomy and agency. The issue of consulting with and deferring to children was a persistent theme. We spent much time trying to tease out the intricate web of relationships among parents, child and state. Contested custody presents a wonderful example of all the complexities and hidden assumptions behind these triangulated relationships. In custody cases, the state decides between parents on behalf of the child. What are the child’s rights and interests once basic needs of food, shelter, education, and physical safety have been met? I will address that issue after briefly mentioning the rights and interests of the parents and the state.
As to parents’ rights, they include free expression, religious expression, and privacy. A key human right is the fundamental right to procreate. That right is hollow if, once the child is born, the parents are prevented from raising the child and transmitting their values. For many people, their own liberty interests will be limited if they cannot guide their children’s future and protect their communities by passing on culture and knowledge to their progeny.29 Relatedly, the ability to pass on religious doctrine requires control and influence over one’s children. The parents’ religious expression may be deeply connected to childrearing means and ends.
The state’s interests in custody reflect the state’s multiple roles. The state has a role as parens patriae, serving to protect minors and others who do not possess legal competency to protect themselves. The government also wants to promote an educated citizenry that can participate in and perpetuate democracy. The state, in addition to protecting children and molding our young breed, must protect society from children. Its duty to protect the general welfare means that the state must make sure that unruly children do not threaten safety and stability; the state want to prevent their child-citizens from growing up to be dangers to their fellow citizens life, liberty and property. To the extent the state can identify involved, functioning parents, it is in its interest to do so to avoid footing the bill for welfare, foster care, or future jail time. Finally, the state has a role as arbiter of civil disputes. To keep the peace, and to clarify
the rights and obligations of everyone involved, the state must provide the parties involved with a clear and final accounting of their various parental rights and responsibilities regarding the children involved. Finally, and most importantly for the purposes of this analysis, is the question of the child’s rights. At the extremes, there is much agreement about the nature of children’s rights. Few advocate for allowing kids to vote or drink alcohol, and almost everyone supports certain claim rights of children to food, shelter and freedom from physical harm. However, the extent of children’s rights to be consulted and perhaps even deferred to in making important life decisions prompts lively debate.
Feinberg’s Right to an Open Future
I have been particularly struck by the work of Joel Feinberg, who identified what he called children’s "right to an open future."30 This right is, according to Feinberg, "an anticipatory autonomy right" or "a right in trust."31 Feinberg asserts that there are areas where the child is not capable of making a reasoned choice now, but adult decisions will foreclose the availability of those rights when the child reaches requisite maturity. Feinberg analyzes the conflict that occurs when a child’s right-in-trust collides with a parent’s rights, and notes that community interests are often involved as well.32 Although he doesn’t necessarily challenge the ultimate result, Feinberg criticizes the state’s deference to the interests of Amish parents who want to limit
their children’s education because "[a]n education that renders a child fit for only one way of life forecloses irrevocably his other options."33
To resolve the conflict between parents’ desire and children’s right-in-trust, Feinberg prescribes a method of parenting whereby parents get to know their children’s strengths and weaknesses, and consciously avoid boxing children into a narrow and ill-fitting future. The hope is that "if the child’s future is left open as much as possible for his own finished self to determine, the fortunate adult that emerges will already have achieved, without paradox, a certain amount of self fulfillment, a consequence in large part of his own already autonomous choices in promotion of his own natural preferences."34
Feinberg emphasizes that a child’s right to an open future is not necessarily determined by consulting the child’s wishes. Because of the child’s immaturity, abiding by the child’s present desires may actually subvert the child’s long-term interest in an open future. As Feinberg explains, "[r]espect for the child’s future autonomy, as an adult, often requires preventing his free choice now."35
Benporath’s Notion of Childhood as an Intrinsically Valuable Condition
Much as I am taken with Feinberg’s approach, which strikes me as providing a coherent organizing principle for talking about the rights of children, there is something troubling about rights that focus almost entirely on the future adult and that do not seriously confront present needs and wants. It is a mistake to romanticize childhood, or to attribute qualities and abilities to children that they simply do not possess. But it is also incomplete to see childhood as merely a vehicle to adult autonomy, an unfortunate, but necessary weigh-station on the road to a full-fledged personhood. Sigal Benporath acknowledges the limitations of childhood, but argues that one need not see this state as inferior to adulthood. "A child should be accepted for what she is now…childhood must not be defined as a passing phase of impaired maturity…it should be recognized as a unique, yet equally significant part of human development."36 Rather than viewing children solely in terms of their present deficiencies and their future needs, Benporath argues for adult respect for children’s condition and adult’s consequent obligation toward them.37 I am not particularly interested in the distinction she draws between children’s rights and adult obligations, but I credit Benporath for focusing on children as possessing special gifts and not just special needs. Benporath sees it as the obligation of the family and public institutions to acculturate children the same way one might welcome a foreigner into our country and culture.38 She is much more inclined to allow "children to play an increasing decisional part in control over their lives as they grow and develop."39 She also advocates "making an effort to reveal their needs and expressed interests, through developmental and other theories as well as through listening to children."40
A clear tension exists between her approach and Feinberg’s, but Benporath presents a necessary tonic to Feinberg’s almost exclusive focus on the citizen-to-be. Benporath reminds us that childhood possesses the intrinsic value of being, not just the process value of becoming. Applying the Scholarship of Feinberg and Benporath to Custody Cases Feinberg does address child custody; however, it is in the context of an unusual legal battle between grandparents and a biological father. Feinberg uses the case of Mark Painter—a notorious example of judicial bias—to argue for applying the principles of a child’s right to an open future in a neutral manner. In that case, the child’s mother was dead and the father’s counter-cultural lifestyle (including “dangerous” tendencies toward Buddhism, agnosticism, and support of the ACLU) was deemed harmful for the child. Feinberg rightfully denotes this case as a “horror story”41 and argues that the state, except in extreme situations, should not remove a child from parental custody. Feinberg observes that “[t]ypically, the state must shoulder a greater burden of justification for its interferences with parents for the sake of their children than that which is borne by parents in justification of their interferences with children for the children’s own sake.”42 This observation, which strikes me as true, displays a persistent but unstated assumption of Feinberg’s analysis. It assumes that, in the state-parent-child triangle, the parents operate as a monolith, agreeing as to values and the child’s best interests. Therefore, Feinberg’s focus on an egregious case, in which the mother was deceased, is ultimately unhelpful in resolving the more common problems posed by custody battles between parents.
Although Feinberg’s theory of relying on parents as trustees of the child’s right to an open future is confounded by the fact that in a contested custody matter, the parents cannot agree, Feinberg’s principle of maximizing the child’s right to an open future nonetheless seems particularly apt. In fact, a custody battle seems like a quintessential example of a major life choice that will affect a child’s ability to exercise his autonomy as an adult. In the words of Feinberg, "the child’s options in respect to life circumstances and character will be substantially narrowed well before he is an adult."43 Custody is arguably even more vital to a child’s autonomy and ability to direct his own future than the educational or religious choices that serve as Feinberg’s core examples. At least with educational choices, under some circumstances, the adult can compensate for deficits in his childhood education. The choice of who raises the child day-to-day will have an even more profound effect on the child’s personality, life-choices, and ability to pursue an open future.
Similarly, Benporath’s work offers guidance to a GAL making a custody recommendation. First she reminds us of the importance of making sure that the person inhabiting a world of rights-in-trust is having a happy childhood, and that this passage of life is to be relished, not merely tolerated. Second, she reminds us that the world of childhood is valuable and sometimes impenetrable to adults, and that we may need children to guide us in understanding their needs. The contribution of Benporath to custody evaluations stems from this focus on the happiness of children.
Children’s sense of wonder, their flexibility and their innocence are important attributes that the GAL should strive to cherish and preserve. In keeping the future open for children, we ought to take pains to understand their unique needs so that our efforts to do not ruin their present.
Both Benporath and Feinberg arguably support a best-interests role rather than a traditional attorney-client role for the child. Feinberg’s open future affirmatively anticipates occasions when the child’s immediate desires are not consonant with his or her long term best interests. Benporath is more focused on the here and now, but she seems to see the role of child as translator for and educator of adults, not necessarily those who make the final decisions about major life choices.
Ethical and Practical Concerns about the Process of Determining Children’s Best Interests in Custody Cases
Concerns about the behavior of GALs arise on many levels. As noted above, there are serious debates about the best-interests role, as opposed to a more traditional attorney-client model. Also GALs face the difficulty of assessing custody without engaging in cultural and other biases. Ideally they should focus on the welfare of the child and the child’s right to an open future while simultaneously protecting and promoting a happy childhood. In addition to these daunting tasks are two crucial aspects of a best-interests analysis that in my experience tend to be undervalued by GALs. The first concerns the GAL’s duty towards the family as a whole. The second concerns the importance of respecting the child and keeping the child informed and involved even if the GAL does not follow the child’s wishes.
Valuing the Parent-Child Relationship
GALs often do not place enough weight on the parent-child relationship in assessing the child’s current happiness and rights-in-trust. One need not tout parents’ rights to make the narrower argument that children’s rights cannot be understood without concern and respect for parents. As Thomas Murray notes "family bonds have an intimacy that distinguishes them from other attachments."44
Family law scholars and psychologists agree that a child will best develop his potential and will make the greatest gains in physical and mental health if he has a healthy relationship with both parents. Numerous studies confirm what life experience and common sense already tells us, that both parents remain vital to a child’s future well-being.45 In a noted study of the effect of divorce on children, researchers found that children whose parents encouraged visitation with the non-custodial parent were more psychologically healthy.46 Regular and meaningful contact with both parents led to less stress, better work–
effectiveness, better socialization and less aggression.47 Continued contact with the non-custodial parent offers emotional support, and potentially provides a larger support network and greater stimulation, and increased opportunities to interact with diverse people and stimuli.48
Unfortunately, GALs sometimes behave as if the child has little interest—emotional, relational, social or practical—in the soon-to-be defunct family unit. By narrowly focusing on the child as individual, rather than as a child who is part of a disintegrating family, the custody evaluation may ultimately ignore some crucial interests of the child. GALs sometimes adopt a constricted, atomized, autonomy-happy version that myopically focuses on the child alone. The focus on the child’s interests is correct; the definition of those interests is too narrow. The GAL doesn’t make the mistake of child liberationalists who want to impute full rational decision-making to the child. Instead, the GAL falls into a related error in autonomy-focus thinking.
By undervaluing connection and forgetting that meaningful autonomy often means cultivating relationships with others, GALs may disserve the child practically and emotionally. Barring abuse or serious neglect, children will be spending time with both parents. Wisely, in my opinion, the law totally dissociates payment of child support from visitation. Even financially deadbeat parents, for example, can and should spend time with their kids. Although there is certainly danger in conflating the interests of parents and children, it is impossible and undesirable to separate their interests entirely. Respecting the intimacy of the parent-child relationship and honoring the parents themselves is vital to any robust notion of the best interests of the child. As Feinberg writes, childhood is a passage through which children grow into their full rights as citizens and must be prepared to exercise those rights. A key part of the preparation involves guidance from parents. Except in the most extreme situations involving abuse or neglect, it seems nonsensical to talk about the interests of children outside a consideration of the parent-child relationship.49 Similarly, Benporath’s approach requires respect for parents because they are the primary, though not exclusive, navigators for children through the foreign world of adults. At their best, parents provide the type of deep appreciation and understanding that Benporath sees as necessary outgrowths of children’s weak position in the world vis-a-vis adults. In practice, however, GALs are sometimes brutal towards parents. Well-meaning GALs perceive their task as ascertaining the best interests of the child, and these well-meaning legal pugilists are ready to slug it out on behalf of the child. Neglecting the child’s need for intimacy, support, stability and emotional safety of competent, secure parents, GALs sometimes act as if their jobs require them to behave like Caesar in a gladiator’s duel-to-the-death
over custody. They exhibit a relentless attempt to ferret out who is the better parent, and then to elevate that individual. As I have witnessed it, the "better" parent is championed and the "losing" parent is ground into the dust, portrayed as unfit and sometimes even dangerous to the child. These tendencies derive from a desire to support the GAL’s assessment of who should "win." However, such an approach degrades the ability of the both parents to nurture the children and further frays the thin bonds of family uniting these feuding individuals and their progeny.
Certainly I would not be the first to observe that the culture of the adversary system is particularly ill-suited to resolving family-law disputes.50 We hear all the time how divorce lawyers sow discord and distrust, making things worse, not only for the children, but for the adults. Ironically, the GAL, who is supposed to advocate for the child and remain outside the role of a traditional lawyer, often becomes infected by a legal culture of hyper-adversarialism. The GAL can shift from being neutral eyes and ears of the court into an advocate for one of the parties.
This happens because of the entrenchment of a legal culture of adversarialism. Lawyers are often bound by habit, ego and their training as investigators and cross-examiners. As GALs, these lawyers often fail to understand the deeper purpose of their inquiry. Ironically, the very skills the lawyers bring to their evaluations are what make their participation most destructive. Mired in the culture of the adversary system, the GAL often advocates not for the true best interests of the child, in having a safe environment, including contact with two strong and self-confident parents, but for the GAL’s chosen result. GALs may feel strongly about their recommendations and feel that the best way to insulate their preference for one parent is to degrade the other parent. They may also over-identify with one parent and begin to take the decision very personally. By undervaluing the parent-child connection and attacking the competence, integrity, and judgment of a parent, GALs can and often do make things worse for parents, and ultimately children.
Taking Children Seriously
Custody decisions for children and early adolescents should not be left to them despite their obvious stake in the outcome. Children or young adolescents are not intellectually or emotionally mature enough to determine their best interests. I am particularly convinced that this is true in custody cases. Children of divorcing parents are particularly vulnerable to having their childhood suddenly brought to an abrupt halt. Divorce often thrusts new responsibilities on children. The last thing they need is the burden of deciding custody. As I argue below, however, it is very important to take the child’s wishes seriously and to let the child teach the GAL about his or her needs.
Issues of custody arguably pose more of a challenge to Feinberg’s reluctance to let the children decide their own interests beyond those of education or religion. A child might not appreciate or be able to meaningfully evaluate his educational options, which adults can neutrally assess. With child custody, however, the child may have some intuition and experience that adults cannot access. In determining what
will maximize their long-term benefit, children may possess some specialized expertise on the question of their own custody. Their time spent in intimate, informal contact with parents give them information that no one else can fully access.
Both Feinberg and Benporath speak to this issue. Though Feinberg rejects a child’s right to conclusively determine his own rights-in-trust, he definitely sees the child as an important participant in the process. He observes that "from the beginning the child must—inevitably will—have some ‘input’ in its own shaping, the extent of which will grow continuously even as the child’s character itself does."51 Benporath bases the obligations of adults to children in respect for the state of childhood and for the child’s individuality. She warns that "[n]eglecting the present perspectives of children is not only disrespectful, and not only results in an unjust and myopic society…it also expresses a deep disregard for childhood itself."52
Perhaps because children are so easy to dismiss, GALs usually do not make the mistake of treating children as clients who should call the shots. As I asserted above, GALs do fall into adversarial traps, but slavishly following the desires of the child client is not one of them. In fact, some GALs seem to lean toward the other extreme, mistakenly concluding that children have little to offer and, therefore, failing to take their insights and preferences seriously.
Practical Solutions for the GAL and the Family Court Judge
Practically, the GAL is in a unique role to foster the best interests of the child. These best interests should be broadly defined. For instance, it is within the court’s jurisdiction to order counseling, special education, or other support services for the child. As part of a custody order, the court can also require actions of the parent such as attendance at substance-abuse counseling or parenting classes. To combat the tendency to get overly enmeshed in the adversarial nature of the proceedings, GALs should deliberately focus on the strengths of both parents. Even, or perhaps especially, when one parent is the clear custody winner, the GAL should think about how to keep the non-custodial parent involved in the child’s life and confident about his or her parenting skills. A parent who emerges from the custody evaluation process humiliated and feeling terrible about his ability to parent will not be able to provide the child comfort and security. A child may misread the parent’s dejection as rejection. More basically, at a time of immense fragility and uncertainty, the parent’s confidence will be further undermined. All of this combines to deprive a child of joy and to limit his future options.
This is not to say that GALs should ignore or whitewash problems posed by parents. Part of a GAL’s job is to make hard choices and to deliver tough advice. However, a GAL must relay negative information or assessments with deep respect and compassion for parents. GALs must disclose problems honestly, but in the least inflammatory and judgmental terms possible. A GAL should show the parents the report and solicit comments and corrections.
These professional obligations do not derive from a more basic duty owed to the
parents or from any sympathy one might have for them. They derive from the insight that separating the interests of the child from the strength and health of the parents relies on a false and cramped view of children’s interests.
As a practical matter, GALs should never ask a child with whom he prefers to live.53 The child, because of his developmental stage, the influence of adults, and limited maturity and worldview, would not necessarily be able to identify his own best interests. More importantly, asking the child puts him in an impossible position. Respecting the child’s emotional needs and his attachment to and fear of hurting both parents should make GALs circumspect about even posing the question. This reticence should not be confused with a lack of interest in the child’s desires. There are many interviewing tricks to learn about the child’s wishes and his level of attachment and how the child can educate the GAL about his or her best interests without directly expressing a choice.54 GALs can maximize the child’s good relations with both parents and minimize any guilt he or she might have had expressing his preference.
Obviously, there are cases where the child directly and vociferously expresses a strong preference. It is important that his or
her views be treated with immense respect. The sliding developmental scale used in Indiana, where children’s views on custody take higher precedence after age 14, makes good sense.
Implications for Lawyers Representing Parents
Up to this point, I have argued that GALs, in their eagerness to promote the child’s best interests, may undervalue the child as a resource and fall into adversarial behavior, despite the non-adversarial nature of their roles. These criticisms of the way GALs sometimes behave invite similar questions concerning the behavior of attorneys representing the parents. Attorneys representing parents are by definition adversarial and are ethically bound to focus on the interests of their clients, and not third parties (such as the children). They rarely see their job as asking questions about the children’s welfare and tend to take their cues from their clients, who are often in fragile, angry states.
Given the harms inflicted on children by dueling parents, it is reasonable to wonder whether there is a way to apply the lessons of children’s best interests to the role of the attorneys for the parents, without entirely subverting the traditional attorney’s role. May an attorney representing a parent even consider the welfare of the children, or would such concern for anyone other than the client-parent constitute a conflict of interest and ethical breach of the duty of loyalty?55 I will not in this essay consider this immensely important and troubling ethical problem. Instead, my focus will remain on the interests of the parents because I believe that lawyers who represent parents should be concerned about the children as part of their advocacy of parents’ interests.
If a child’s long-term future benefit relies on meaningful contact with two strong, sane parents, and, if, indeed, the happiness of children is not easily separated from the happiness of parents, then a fuller notion of parents’ interests would motivate lawyers to think differently about the welfare of children. Rather than believing that the children’s interests are incidental or even in tension with those of the parents, lawyers representing the parents could adopt and try to communicate to their clients a fuller view of the parents’ long-term interests. Rather than lumping the kids in with the Tupperware as items to be won or lost in the divorce settlement, lawyers could identify what is truly unique about the parent-child relationship and counsel the parent to look ahead to their own futures. Attorneys should strive beyond satisfying the divorcing adults’ perceived current need for revenge, vindication, or victory, and instead educate the clients about the long-term interests of the divorcing parents. These interests include having a calm relationship with the ex-spouse and having healthy, happy, well-adjusted children. Just as it would be foolish to identify the best interests of a child without reference to the relationship with the parent, it may be equally foolish to represent the parent without thinking about how decisions made in anger and hurt at the time of divorce and initial custody determination will affect the web of connections with the children in the present and in the future.
Misunderstood, this approach could seem dangerously close to treating adult clients like children. Just as children, for developmental reasons, cannot be relied
upon exclusively to identify their own interests, so too, divorcing parents, for emotional and situational reasons, may be poor judges of what they need. One could even go so far as argue that many parents in the midst of a divorce and custody dispute are incapable of making rational independent decisions.56 Such an approach would be too radical and would clearly trample parents’ rights. Yet, for many of the wrongs that parents try to address in custody cases, the language of rights is inadequate and may, when equated with property rights, and litigated in the same manner, be harmful to all involved, most notably, the parents themselves.57
I believe that the solution lies in the ability of attorneys to counsel their clients, affirmatively raising issues relating to children’s long-terms interests. This is not only fair to children (who are truly innocent third-parties and who pose an ethical challenge to the lawyer’s traditional role-differentiated morality), but vital for parents. One hopes that parents get divorced only once. Family law attorneys see the same squabbles all the time and they note the toll it takes on children and the harm that legal wrangling does to the finances, hearts, and long-term interests of parents.58 If one were to counsel clients based on the experience
and wisdom of seeing many such cases, it is clear that the best advice would look to the parents’ right to an open future. This open future for the parent would entail good relations with the ex-spouse, a meaningful co-parenting relationship, support with childcare, lack of tension at graduations, bar mitzvahs and communions, etc., no recriminations from children years later for having been denied the company of the other parent, and most importantly, happier and healthier kids. Obviously, an attorney cannot commandeer the process and set the goals of the representation, but an attorney can educate the client about how the parents’ current interests and desires may conflict with his long term rights and interests as a parent.
Conclusion
For GALs representing children in contested custody cases, it is vital to avoid being seduced by the dark side of the adversary system, and instead maintain a commitment to ensuring, wherever possible, the health and stability of both parents. This is not just for reasons of decency, but because the child’s right to an open future depends on having strong, sane parents. Furthermore, in determining the child’s best interests, the GAL should take the child’s stated wishes very seriously, but should not feel bound by them, and should not directly pose to the child the question of which parent should have custody.
There are strong reasons why parents deserve respect in their own right and why the intimacy of their relationships with their children must be respected. In this article, however, I have attempted to craft a respectful approach to parent’s rights, interests, and personhood that derives not from the parents themselves, but from the needs of their children. This approach indicates that a good lawyer should counsel his or her clients about the needs of the children because those needs will affect the parents’ rights-in-trust.
Both sets of arguments, about GALs and regular attorneys, rest on the notion that it is impossible entirely to separate the interests of parents and children. Although those interests may not be identical, and may in fact conflict at times, they are inextricably bound; it is meaningless to talk about the best interests of the child without considering the happiness of the parents, and it is equally pointless to talk about the interests of the parent without considering the long term effects on the children.