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.
Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School. Follow him on Twitter at @vivekssankaran.