Best Interest Is In the Eye Of The Beholder

A few weeks ago on a phone call discussing how systems can support keeping kids safely with their families, a judge abruptly interjected, “I don’t like this focus on the rights of parents. We should always be focusing on the best interest of children at all times, before a kid is removed and once a court is involved!”

In my years practicing child welfare law, I’ve heard this refrain many, many times. It makes my head hurt.

The refrain pains me because we all know that the “best interest of the child” is not an objective standard. All of us disagree – all the time – about what we think is best for a child. What time should they go to bed? Should they co-sleep with us? How should they be disciplined? Should they be raised in a “free-range” parenting style? Or is helicoptering around them best? Gather a group of parents, chat for a few minutes, and you’ll quickly realize how much we disagree about what is good for children.

This dynamic exists within the child welfare system as well. In the late 1990s, researchers at Chapin Hall brought together a group of child welfare experts and line caseworkers to discuss whether separating a child from their parent would be in their best interests. When in-home services were available, only 35 percent of experts and 37 percent of caseworkers agreed that it would be.

When no services were available, the disagreement whether to keep the family together became much more pronounced: 60 percent of experts said separate, compared with 53 percent of caseworkers. Experts and seasoned practitioners couldn’t agree on what would be best for children.

Talk to any child welfare lawyer or practitioner and they will confirm this. If you go before Judge X, he’ll never do this. But Judge Y will always do this because Judge X and Judge Y see the world in very different ways. Even when I toss out hypotheticals to my law students about when a child should be removed, or when parental rights should be terminated, this pattern repeats itself.

So let’s own this disagreement, and do ourselves a favor by not talking about the “best interest of the child” standard as some objective measure of truth. Rather, let’s acknowledge that child welfare cases are really about who gets to decide what they think is best for a child. Before a parent is found to be unfit, they get to decide. While a child is in foster care, a court or a child welfare agency might get to decide. If a child has achieved permanency with an adoptive parent, or a guardian, they get to figure this out.

Crucial to this framework is the realization that prior to finding a parent to be unfit, judges don’t get to issue orders based on what they think is best for a child. Consider a world where this standard didn’t apply. Do I really want someone to second-guess my decision to allow my children to watch America Ninja Warrior this morning? Or to eat pizza for a week straight? Or to not shower for a few days?

Absolutely not. These are my calls as a parent. The constitutional jurisprudence makes clear that the state doesn’t get to interfere in these decisions until they prove me to be unfit. It is a doctrine that all of us benefit from. Every day.

So let’s stop pitting parental rights against some false sense of an objective best interest standard. Let’s recognize that the law requires us to allow parents to make these decisions until they are proven to be incapable of doing so. As tempting as it may be, until this happens, we can’t – and shouldn’t – use the force of law to impose our subjective opinions on what is best for children on families.

Comments

  1. Vivek, Thank you. The term "best" is supercharged with vague interpretation, arbitrary feelings, whim. The UK court ruled it was "best" that Charlie Gard and Alfie Evans die, against the parent's wishes, and when there were doctors willing to take them in transfer. The use of the term "best" abuses rule of law and liberty. It assumes some elite knows better than parents. CPS is encouraged to use gut feeling in child abuse investigations, suspicion, not evidence. The state and courts do interfere in parenting decisions. Reigning in the rogue courts and the power-hungry state is essential. Tie down government power by the chains of the Constitution, ratify the Parental Rights Amendment, and the interim remedy, state statutes, like HB 508 in PA. What is protected by jurisprudence, needs protecting in statutory law, safe from the whims of the courts.

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    1. No CPS worker nor the courts should have jurisdiction to kidnap someone's child....what's best for the child is thier home with thier own parent.....because facts are facts most children get abused and molested in foster care..so where is that better CPS put the parent under a microscope...well what about the foster care parents??? How do they not know that Chester the molester is the head of household???? They receive complaints from kids as well as parents that bad things Are going on in foster care...And no body wants to hear it, nobody cares ...As long as we protect that child from that pot smoking mom.....where does marijuana do more harm then Some gross nasty pig having sex with babies???? Even worst yet ...that where placed by our so called CPS workers and some judge????? I'm sorry but this kind of legal kidnapping is wrong and this is unamerican , people have the right to be protected against such blastamy...I personally have never had a child in fostercare but have known a couple of people that have,, ànd both cases the very first thing that happened to both set of children was they were raped beaten ..what kind of protection is this????? It almost seems that a criteria for being a foster parent includes being a molester..because tell me how or why in the world in the name of a so called safe place are children being raped?? Then they all turn a blind eye and the complaints have fallen upon def ears??. And children's innocense ripped away and thier security of a home does not exist, nor are they allowed back home with thier own family....these children now suffering from years of abuse and molestation are totally messed up in the head.....and this is better??? CPS is not a good thing it's bad. These people haven't protected nobody they just destroy the family unit, they tell lies to get the children taken from thier homes and they get bonuses for adopting other people's kids to molesters...wow , This whole fostercare system needs a total overhaul..this program is evil and shouldn't exsist...so why are all these people sitting thier with closed lips speak up and really protect the children of foster care, if you really care

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  2. Good luck. Most people taking children from their parents don't have children or they have an agenda (giving children with heterosexual parents to gay & lesbian parents).

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  3. "The constitutional jurisprudence makes clear that the state doesn’t get to interfere in these decisions until they prove me to be unfit." In theory, but not in practice.

    "It is a doctrine that all of us benefit from. Every day." We wish.

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  4. I'm not sure how directly this applies but, if you practice child welfare law, then you should be on the cutting edge of the explosion of scientific evidence around the need for every child to have a safe, stable, and secure environment. As should everyone who touches the lives of these fragile, vulnerable children. We also know that to recover from the trauma of the family dysfunction, a child needs at least one healthy relationship with an adult, preferably a parent. We also have a much deeper understanding of the harm and damage that occurs to the child when safety and security are compromised. Once professionals understand psychological trauma and child development, I believe that their are factors that are clear "in" or "not in" the best interests of the child.

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  6. So it appears, and please correct us if we're wrong, that you would agree with the argument made by us at Fix Family Courts . com that best interest of the child is viewpoint discrimination based on matters of conscience in child rearing. And as the supreme court held in Reno v. Flores the government must not violate the rights of the child when making this policy choice. And also that it cannot be in any child's best interest for a sole government official to violate that child's constitutional rights absent constitutional safeguards. This doctrine you speak of therefore also applies to two fit parents in disagreement in divorce. Judge X and Judge Y however are denying this to these parents. So the nightmare that you speak of is happening to parents throughout this country every day. Afterall even divorced parents have a First amendment right to disagree on matters of conscience. Ron B Palmer and Sherry Palmer with Fix Family Courts . com

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  7. Attorney Professor Sankaran, the problem is that judges think they determine by themselves best interest. However that is not the legal standard as it is subjective and not objective. We have at least 3 different major studies done on medium to large state foster care system in the US. Essentially these studies have determined that it is not in the best interest of children to be placed in foster care except for moderate or higher abuse

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