September 13, 2000
Best interests standard a recipe for disaster
By Robert Muchnick
The current debates on the importance of fatherhood, especially in divorce
situations, are so fraught with misinformation, disinformation and outright
misandry as to be both frightening and outrageous in their support of the
divorce industry status quo.
Contrary to one common assertion, that the disappearing, or
"deadbeat," dad is a common phenomenon, such an alleged "social
problem" is, in fact, drastically political and is in the majority of cases
caused by the mass, forced extirpation by the courts of divorced fathers from
the lives of their children under the guise of the so-called "best interest
of the child." This ubiquitous injustice to both child and father is
compounded by the creeping legislative criminalization of fatherhood in the name
of child support enforcement, now a $4 billion-plus per year federal, state and
quasi-governmental industry exclusive of what relatively little alleged
arrearage it collects and despite its pass-through of child support which would
have been received anyway.
One fatal flaw in our current disposition of children of divorce is the
presumption that courts know best -- or are even capable of determining -- what
is in a child's "best interest," which overly broad judicial
discretion permits application of the judges' own biases that it is only mothers
who can and should parent. The lopsided decisions resulting from this ingrained
bias permit an unnatural reallocation of virtually all decision-making and
control over the child to one parent, with the consequent and often realized
risk of abuse of such power for revenge or other malicious purposes against the
so-called "non-custodial" parent.
The application of the "best interest of the child" standard in the
disposition of children in divorce and out-of-wedlock cases implicates two major
areas of concern: The effect of court-imposed fatherlessness on those children
-- which is the norm nationwide -- and the constitutional right of each parent
to simply be parents to their children.
As to the first, countless studies -- from sources as unimpeachable as the
U.S. Dept. of Health and Human Services, the Dept. of Justice, Centers for
Disease Control, and endless scholarly articles -- relentlessly confirm that
children who are raised without their fathers are at alarmingly higher risk of
dropping out of school, drug and alcohol abuse, depression, early pregnancy,
institutionalization and lowered self-esteem, among other risk factors. Those
facts alone should militate for an immediate revision of our unbalanced
"custody" laws, starting with elimination of the "best
interests" standard as the fulcrum on which the inequality pivots.
As to the second area, judicial awards of child custody exclusively to one
parent -- of which in excess of 90 percent nationwide favor mothers --
automatically deprive the "other" parent of a right so fundamental it
has been affirmed repeatedly by the U.S. Supreme court: The right to the care,
custody, control and companionship of one's offspring.
One oft-cited reason for sole custody is "ongoing parental
conflict" as a consideration in designing a parenting plan. However, a much
simpler and fairer solution is available: The absolute presumption that a
child's status quo constitutes his best interest -- i.e., same neighborhood,
same school, same friends, same activities. The only difference for the child
would be the fact of two households. Parental conflict is resolved very easily,
as well -- the parent unreasonably creating the conflict loses his or her right
to control the child. End of problem.
Opponents of fully shared parenting rely on the old and discredited nostrum
of children needing "predictability and structure" as an excuse to
award sole residential arrangements to one parent. However, the sudden, almost
complete, court-ordered loss of one parent in divorce situations runs precisely
contrary to such predictability and continuity while fully shared parenting best
supports it.
Moreover, in January at a conference of Alabama judges, Dr. Joan Kelly,
author with Dr. Judith Wallerstein of "Surviving the Breakup" and an
expert in child development and divorce mediation, presented startling new
research -- startling only in its predictability -- regarding child development,
child custody and the importance of fathers in children's lives.
Dr. Kelly reported that, absent abuse or neglect, "a child who has a
relationship with both parents wants to keep it." And the sun rises in the
East. According to a January 30 news story on the conference in the Huntsville
(Ala.) Times, "Children of divorce say they'd rather face the hassle of two
homes than go without a parent they love."
Another common assertion among proponents of sole custody based on the best
interests standard holds that what is needed is more emphasis on parent-child
relationships and less insistence on numbers of overnights. Such a vague
platitude is disingenuous at best, and, at worst, malicious and deliberately
misleading, in that it begs the question of how one achieves such greater
emphasis without the requisite parenting time being provided. Merely being
"Uncle Dad" every other weekend -- and perhaps for Wednesday dinners
-- is not parenting.
A recent Pennsylvania Supreme Court decision illustrates in what low esteem
even high courts hold fatherhood. In that case (Charles vs. Stehlik), the court
discarded a perfectly good father from his child's life in favor of a biological
stranger -- the mother's new husband whom she married eleven months after
separating from the father -- largely on the basis of an examining
psychologist's opinion that such family carnage would be in the child's
"best interest." The trial court in that case had noted that its
"overall impression of [the father] was that he is a good man and truly
wants to be a loving (and loved) father."
That decision, moreover, implicitly derogates the father as having failed to
be a father to his child, when, in fact, any such "failure" was the
direct result of another court's award of sole custody to the mother and an
apparently court-approved move-away. In that case, as in the vast majority of
custody cases, the fatherlessness the child suffers is an iatrogenic disease --
abominable court decisions piled on top of horrendous ones -- and certainly
fails to support another common assertion that "poverty and male
socialization" are the cause of fatherless children of divorce. Anyone who
has worked in or around the divorce industry for even six months will have met
scores of well-socialized divorced fathers with decent jobs who've been exiled
to the role of infrequent visitors in their children's lives.
Finally, one of the most common propositions is that the "best interests
standard is the best we have." However, if the legal principle of the
"best interests of the child" -- with all its wild abuses which have
resulted in tens of millions of children forcibly losing their fathers and the
fathers being evicted from their children's lives on the whims and biases of
judges -- is truly the best we have, society desperately needs to go back to the
drawing board.
Robert Muchnick is executive director of the Center for Children's Justice,
Inc., in Denver, and can be reached at (303)722-3098 or by email at director@childrensjustice.org.
Copyright © 2000-2003 Robert Muchnick. All Rights Reserved. Permission is
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only provided the article is reproduced in full without editing, and the
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