The Best Interests of the Child - Part 1

One of the difficult issues that I have had in trying to deal with my disenfranchisement is that no-one has ever been able to give me an adequate explanation for it. To many, it has almost seemed like a question they cannot understand. Why is your son being taken from you? Well, that's just the way the system works. This is begging the question and every time I've heard it, or something like it, besides amplifying my distress, it has produced a kind of intense, speechless frustration in me. I recognise it as a retreat away from blame, shirking of responsibility and an appeal, or deferral, to forces beyond anyone's control. The situation is unpleasant, complicated and beyond normal human resolution, so we hand over to the courts and the courts do what they always do. They make a decision, you might not like it, but that's what you get.

This doesn't help me. I want to know why, in the face of manifest injustice, the courts decide what they do. I want to know their reasoning.

Just recently, a book fell into my hands which goes a long way to giving me at least a partial explanation. The blurb on the back reads: "What principles should guide the courts in deciding the fate of hundreds of thousands of children involved every year in parental divorces and family breakdowns? What should justify state intrusion on the privacy of family relationships? How should professionals - judges, lawyers, social workers, psychiatrists, and psychologists - conduct themselves in pursuing 'the best interests' of children who have been abandoned, neglected or abused?"

These are all excellent questions, although what I'd like to know is what principles do guide the courts, what does justify state instrusion, and how do professionals conduct themselves in the pursuit of 'the best interests' of children? Therein lies the rub. These are not normally stupid people, the courts run on principles of law, the professionals are schooled in ethics, but I have had a hard time identifying what exactly is the framework in which they operate.

It's not a simple issue of ideology, because their ideologies are varied, many are left wing, but many too are right wing. As I have argued before, I don't believe in a conspiracy theory wherein there is some sort of dark cabal committed to the destruction of families in the interests of radical feminism. I think it's much more simple than that - it is fallible human beings working in an environment where they must follow certain rules to solve difficult problems. Sometimes the problems are so difficult that they fall back blindly on whatever rules seem to apply and thoughtful justice dies.

So what are the rules and where do they come from? The law alone does not explain it. An obviously unjust law doesn't last long in a democratic country and what laws there are allow for quite a lot of leeway. For example, in many jurisdictions, there is nothing in law to prevent a judge allowing what would be effectively joint custody even if the law itself does not require its presumption. The courts could come down harder on custodial parents who interfere with visitation but they seem to prefer tormenting non-custodial parents over child suppport while simultaneously insisting that one has nothing to do with the other. Why is this?

It's not just the "professionals" as few would be prepared to claim that a non-custodial parent is a bad parent just because the custodial parent says so. They are educated people, they are expected to maintain some level of objectivity. Some don't, but I would have thought that most do. Or they at least try.

I'm not a lawyer, nor a psychologist, but I fancy that I have above average powers of observation and understanding, I ought to be able to figure out what they think they're doing.

Perhaps this book I have in my hand will help. It seems to be a manual of sorts, although it repeatedly uses the word "guidelines" to explain itself. A little research shows that it pops up on a variety of reading lists for family court law courses and professionals at large. Indeed, the preface claims "it would be difficult to imagine an expert working in the field of child custody or family law in the United States - or in Canada, England, or many other nations - who has not been influenced by [this book]". On the back, a professor of psychology at Yale demands "Without question, it should be compulsory reading for judges, lawyers, social workers and clinicians". The ABA Juvenile and Child Welfare Law Reporter is quoted: "Essential reading for anyone charged with the protection of children in the legal process."

Could this be the smoking gun, the missing piece of the puzzle to explain why the courts won't help me and my son?

Possibly, or at least in part, because a book so directly to the point of what I am concerned about, with the pedigree it has, its long-term presence within the relevant circles and its apparently objective and reasonable, indeed scholarly, tone must have something to do with it.

Alright, enough teaser, it is:

"The Best Interests of the Child - The Least Detrimental Alternative" by Joseph Goldstein, Albert J. Solnit, Sonja Goldstein and the late Anna Freud.

It is a compendium of three previous books: Beyond the Best Interests of the Child, Before the Best Interests of the Child, and In the best Interests of the Child. Originality in titles has not been their speciality, but that's the point, they clearly have just one thing to discuss, one very important thing. On the back, the authors' credentials are summarised as follows:

Joseph Goldstein is Sterling Professor Emeritus of Law and Deral H. Ruttenberg Professorial Lecturer in Law at Yale University.

Sonja Goldstein is of counsel to the law firm of Eric I. B. Beller, P.C. and lecturer at the Yale University Child Study Center.

Albert J. Solnit is Sterling Professor Emeritus of Pediatrics and Psychiatry and Senior Research Scientist at the Yale University Child Study Center and School of Medicine, as well as Commissioner of Mental Health and Addiction Services for the state of Connecticut.

Anna Freud was Director of the Hampstead Child-Therapy Clinic in England until her death in 1982.

Yes, and Anna Freud is one of those Freuds, the youngest daughter of Sigmund himself and by many accounts his favorite.

Do you see what I mean about pedigree? If you were a court professional who wanted an authoritative text to help you decide (or decide for you) on what to do with a child caught up in a nasty divorce, who could be a better set of authors than those who cover the psychoanalytical study of child development and emminence in family law? A genuine Freud can only clinch the deal.

The books have been around for a while too. First published in 1973, surely a propitious time for any serious work in the placement of children of divorce, they have gone through multiple editions and this now consolidated edition is still very much available at Amazon.com.

The short review at Amazon.com points out: "Many conclusions...are controversial." Which ones? Well, just a moment, and let me remind you that this has been an authoritative and mainstream book of guidelines for professionals in legal child placement for over thirty years. Got that? Good. The controversial conclusions that bother Amazon's reviewer are: "rejections of custodial arrangements involving forced visitation and the unquestioned primacy of birth parents".

Yes, well, I'd say that's pretty damned controversial. Wouldn't we consider a book on property law that advocated the death penalty for stealing sheep to be controversial? Would we not expect such a book to have been dropped from reading lists long ago? Perhaps I get a little hyperbolic with that analogy, but it seems to me that we should be equally shocked by the idea of explicitly stripping one parent of any and all rights with respect to his or her children in the event of a divorce and that is exactly what this book endorses.

The argument, as Amazon says, is tight and well presented, one might even say seductive, unless, that is, you're a parent looking straight down the barrel.

That's enough for now. In future posts, I plan to take this book apart, page by painful page, present its arguments and point out precisely where I think they're profoundly wrong, for all their emminence, experience and education, so please check back once in a while.

Read Part 2 here

Tags:Divorce, Fathers' Rights, Child Placement, Child Custody, Freud, Parentectomy, Visitation