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Part II: The State Preference for Splitting up Families Using the ‘Best Interests of the Child’ | Glenn Sacks on MND

In Best Interest of the Child, Child Custody, Child Custody for fathers, Child Support, Children and Domestic Violence, children's behaviour, Civil Rights, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, False Allegations of Domestic Violence, family court, Family Rights, fathers rights, Intentional Infliction of Emotional Distress, Marriage, Non-custodial fathers, Parental Relocation, Parental Rights Amendment, Protective Dads, Restraining Orders on December 1, 2009 at 2:15 pm

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

Saturday, November 28, 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.”

Why Judge Little

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Part II: The State Preference for Splitting up Families Using the ‘Best Interests of the Child’ | Glenn Sacks on MND.

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