Attorney: Best Interests of the Child Determination ‘Subjective, Inconsistent, Often Erroneous’

With this piece in Lisa Belkin’s Motherlode blog at the New York Times, I couldn’t agree more (New York Times, 8/26/10). It’s written by an attorney named Chris Gottlieb who defends parents in cases in which the child protection agency accuses them of abuse or neglect and wants to take their kids and put them in foster care. In short, Gottlieb works in the trenches of one of the most emotionally difficult areas of law, and, having done so, she’s got some things to say about CPS and the courts that adjudicate those matters. And what she says is much like what I and so many others have been saying for years. Judges and caseworkers are supposed to figure out which parents truly are a danger to their children or are unable to care for them. No one pretends that that is always an easy job; it isn’t. But that job has morphed into second-guessing legitimate parental decision making. As Gottlieb says,

One judge wants more discipline; another wants less. I have heard caseworkers criticize mothers for everything from giving their children Chinese takeout food or Kool-Aid (the mother told me orange juice was too expensive for her) to having beer in the house to letting a child get wet under a sprinkler. A judge ordered one of my clients to take her child to the park every day. Every day!

As Gottlieb points out, there is nothing in the law that permits that type of micromanagement of parents by government officials be they judges or caseworkers. The Constitution doesn’t permit it, but it happens every day, thousands of times a day. The camel’s nose is under the tent and it’s not going away. At the rate we’re going, the beast will be sitting down to dinner with us any day now. And what gave the camel its opening? “The best interests of the child,” that’s what. As Gottlieb points out,

[O]nce government intervention in family life is authorized, the legal standard often becomes “best interests of the child.’ How do courts and caseworkers determine what is in a child”s best interests? The same way the rest of us do: subjectively, inconsistently, and often erroneously.

She said a mouthful there. As it happens, I’m currently reading a book by Canadian academic Paul Millar in which he quotes clinical psychologists W. O’Donahue and A. R. Bradley on the subject of “the best interests of the child,” thus:

There is no useful operational definition of what the best interests of the child actually are. There is inconsistency across states of legal criteria for assessing the best interest of the child. There is a lack of consensus within the field of psychology as to what the relevant variables should be… The validity and reliability of standardized tests for use in custody assessments are largely unknown.

That’s the state of psychology on “the best interests of the child,” and yet how often do judges, who know far less about the matter than do psychologists, intone the mantra as if there were some certainty about the matter? As Gottlieb makes clear, the vast majority of CPS cases don’t involve any form of abuse; rather, they’re about neglect, some of which of course is serious, but much of which is of the “Horrors, you gave the child Chinese take-out!” variety. Governments tend to arrogate power to themselves when they can, and the breakdown of the traditional two-parent family has given states a golden (literally) opportunity to do just that. They’ve seized on family breakdown, not just to intervene in families in which children are truly at risk, but to substitute their own decisions about childcare for those of parents. “Kool-Aid? No, I think orange juice is better.” There’s a reason that strangers on the train criticize Gottlieb for holding her baby too close to a newspaper or not dressing him to suit them. The loss of the two-parent family has absolutely terrified us, and with good reason. Children overwhelmingly do better in intact, two-parent families than anywhere else. And when that family system broke down, as it did years ago, governments, primarily in the form of CPS agencies and courts, stepped in. That may be understandable, but it’s not right. What’s right is for governments to educate people about the importance to children of parents staying together if at all possible. And when it’s not possible, governments must do all they can to promote equal parenting after the split-up. Those two things will do far more and be far cheaper than all the micromanagement of parents done by all the caseworkers and judges in the world.

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