What Happened to the Best Interests of the Children?

Posted: December 26th, 2013 by

Megan E. Watson, The Legal Intelligencer (online)

The standard in a custody case is the “best interests of the children.” So, when a judge makes a decision regarding a custodial schedule or whether a parent can move, or even what school a child should attend, the question he or she is directed to answer is: “What decision will be in the best interest of this child emotionally, mentally and physically?” Most often, however, courts apply that standard through the eyes of the parent. The courts look at the needs of the parent and assume that meeting those needs results in what is best for the children: “What custody schedule works with the dad’s work schedule? What activities should the children be enrolled in so that both parents can participate without one parent being excluded?” As the court begins to focus more on the circumstances and desires of the parent, there is a gradual shift away from the legal standard that begs the question: “What happened to the children?”

I recognize that with intact families, a parent, even one with the best intentions, may make choices to meet his or her own needs rather than their child’s needs. For example, I chose to run for a school board and was elected. The result is my attending many night meetings, which means I am not home with my family. What my kids need, and what is probably best for them, is for me to be home, reading to them and tucking them into bed.

If the best interests of the child were really the standard in a custody case, a judge would ask: “What custody schedule works with the child’s schedule?” instead of, “What works with the mom or dad’s work schedule?” A court would consider that all other nights of the week, the 5-year-old goes to bed at 7 p.m. and, therefore, a dinner visit that goes from 6 to 8 p.m. because of the mom’s work schedule is not what is best for the child. A court would recognize that it is very rarely ever in a child’s best interest for parents to live 3,000 miles apart so that a child only sees a parent during the summer and on long weekends. Even if life will be better for one parent, because, for example, he or she remarried or acquired a better-paying job, that does not mean moving is best for the child who now will not see the other parent as often.

If the best interests of the children were the primary focus, then activities a child participates in actually matter and both parents should be obligated to take the children to their commitments. Why is it acceptable for a child to miss his or her soccer game every other weekend just because it is the mom or dad’s weekend? Is it OK with the child who loves to play soccer and who looks forward to the time with friends on that weekly basis? We never find out because the court does not ask. Aren’t we supposed to teach our children about commitment and that when you sign up for an activity, people depend on you to fulfill your promise to be there? Isn’t that what we, as parents, would say to them if the family was intact and they started complaining about having to go to practice or an early Saturday game? What about the child who wants to participate in a play at school, but can’t because the performance weekend happens to fall on the mom’s weekend and the mother won’t commit to taking the child? What choice would that family make if the parents lived together? Would there even be a question?

I know the family is not intact, but that was the choice of the parents, not the child. Unfortunately, in many custody cases, the burden of that separation falls very heavily on the shoulders of the child. It is the child who has to adjust to seeing a parent only every other weekend, or to missing activities he or she wants to participate in because one parent won’t be obligated, or to having two houses and living in two towns and having two separate lives. The best interest of children is to minimize the impact of parents living in two separate households. The best interest of children is to require parents to conform to what the kids need.

The 16 enumerated factors in Pennsylvania’s custody statute do try to focus our (i.e., the lawyers and the courts) attention back on the child. I do hope that judges will take those factors and not interpret them through the eyes of the parents. I hope lawyers will stop trying cases by focusing on the other parent and, instead, examine what the child needs. I also wish lawyers would only represent parents who had their children’s best interests in heart.

But even lawyers, not just judges, have a hard time separating out what is best for the child from what is best for the parents. In a recent email discourse between members of the executive committee of the family law section of the Philadelphia Bar Association, we were discussing proposed legislation in Pennsylvania that would grant standing to siblings. The concern expressed by many of the lawyers was: If the sibling who is filing (let’s say the brother) was being cared for by a person who did not have standing to seek any custody of the other child (the sister), would this give the adult a back-door opening into having contact with the sister? If we were child-focused, the simple answer to that question is “who cares?” Because, if we are child-focused, it is not about adherence to rules regarding standing or the displeasure of the parent who has custody of the sister, or even the potential for increased litigation, it is about the relationship between the brother and sister and whether it is best for them to have a continued relationship with each other.

California has recently taken a very child-centered step in its custody and adoption laws by acknowledging that children can have more than two parents. The preamble to the bill states: “Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.” Now that is child-centered. What does it mean to remove someone from a child’s life who has been a source of support and love to that child, merely because there is no biological relationship? What about the neighbor who cares for the child each time the mom needs to be in the hospital to address her cancer or kidney failure? What about “Aunt Janet,” who isn’t biologically related but has, in every aspect, loved and cared for the child like she was his aunt? What about the biological uncle whom the child has known closely during his eight years of life and whose children are almost like siblings to the child? If something happens to the mother or father, why shouldn’t that aunt be able to stay involved? Is denying an uncle standing better for the child or is it really better for the surviving parent who may not want to bother with his ex-wife’s family?

I’m going to end with this link to a YouTube video:  http://www.youtube.com/watch?v=1JchSac-VP0. I know it’s unusual, since you can’t see a video in an article, but I encourage you to watch it. The video is of the founder of Embercombe, Tom Macartney, speaking at the Qi Global Summit in Singapore in 2010. He explained “the children’s fire”: a small fire, in the center of a circle, which served as a reminder to the Native American leaders that no law or action should be allowed that would harm the children.

I leave you with two questions he asks of the audience: “Can you imagine our society if we place the children’s fire at the center of all institutions of power . . . our governments . . . our corporations . . . our religious and all institutions of power”; and, “What kind of society is it that would not place the children’s fire at the very center of all its institutions of power?”

And, I ask you, which one do we live in, and which one should we live in?

Reprinted with permission from the DECEMBER 26, 2013 issue of THE LEGAL INTELLIGENCER (online). © 2013 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.

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