Thursday, 9 February 2012


British Columbia recently introduced new family legislation. Shirley Bond, B.C.’s Acting Attorney-General proudly proclaimed: "The legislation we have introduced today marks a milestone in family law in B.C. Most importantly, the Family Law Act expressly states that, when making decisions involving children, the best interest of the child should be the only consideration."

B.C.’s government has a bad habit of thinking that it has discovered the wheel. The ‘best interests of the child" approach has been around for some time. It first gained prominence in the 1970s with the publication of the book Beyond the Best Interests of the Child (Goldstein, Freud, & Solneit, 1973). This book was followed up by Before the Best Interest of the Child in 1979 by Goldstein, Freud, Solnit, & Golstein. It led to best interest of the child specifications in family law legislation in jurisdictions throughout North America and has been a widely used test (with or without legislation) in courts in the U.S and Canada. 

In recent years, however, family law experts and even legislators have begun to resile from pure best interests of the child approaches. 

Firstly there are obvious situations where the "best interests of the child as the only consideration"is probably not good. Take the classical example of a child kidnapping. Jasmine is the daughter of Jill, a 19 year old mother working as a waitress and Jack, a 22 year old guy who has dropped out of university two or three times and likes best to spend his time smoking pot. Jasmine is kidnaped at the age of three months in a seaside park mother when her mother gets distracted by a cute young guy. The kidnapper is a Michelle, a thirtyish woman who has just returned from living overseas with her husband Jim, a stock broker. She had lost her own child in a crib death a couple of months earlier but, emotionally distraught, had not said anything about it to her friends and relatives in Canada. She persuades her husband to go along her compulsive act and her friends and relatives assume that Jasmine is the recently born child of the couple. Jim and Michelle have a child of their own two years later. They are wonderful parents, financially well-off and devoted to their children. When Jasmine is aged 10 the truth about her kidnaping comes out.

By that time Jasmine has powerful attachments to Jim and Michelle and her kid sister. She has a perfect life with her loving parents and all the advantages of affluence. In the meantime Jill has gone from relationship to relationship and but is currently in a relatively stable relationship with Mike, who works as a mechanic. They live in a rented, older townhouse. Jack is still trying to find himself and has never kept the same job for more than six months.

Clearly it would be in the best interests of Jasmine not to be taken away from the kidnappers. Firstly, research in developmental psychology confirms that children need stability and security. They are harmed when they lose their ongoing intimate relationships with those few adults who provide their nurture and care. These relationships of attachment between caregiver and child, are especially important for young children.

Secondly, scientific evidence (and common sense) suggests that financial security is one of the most important factors in the psychological well-being of a child. "Best interests" as the only consideration means that in most cases the judge should probably choose the wealthier parent. Similarly a best interest test rigorously applied (as it should be if it is the sole consideration) will often mean not leaving children with parents who not only have low incomes but also have marginal lifestyles or poor educational skills. With the above scenario it would quickly be game over if the only consideration was Jasmine’s best interest.

In general societal values should have no place in custody decisions if they are not in the best interests of the child. In the famous U.S. case of Palmore v. Sidotti the father, a white man, petitioned for custody of his daughter after his wife, also white, lived with and then married a black man. The Florida court held that it would be better for Melanie to live with her father because living in a racially mixed family would subject her to peer pressure and stigmatization.

The U.S. Supreme Court reversed the decision even though it acknowledged that Melanie could be hurt living in the mixed-marriage situation is a state with deep racial divides. The decision was NOT made on the basis of the best interests of the child and should not have been made on such a basis. The case illustrates why best interests as the ONLY CONSIDERATION is untenable.

In many ways the best interests of the child approach is an outgrowth of the post-Roussean notion that children are borne pure and innocent and become corrupted as they grow up. By the time they are adults they are throw-aways. But adults do matter. Parents also have best interests which should not be excluded. The problem with having adults whose needs are unmet translates into families that continue to fall short of rising to the ongoing challenges of life.

Adult needs don't stop when they have children; they go on and on and being deprived of a child or children has enormous emotional and correspondingly physical consequences. In turn adults' needs - when met - directly influence how they are able to parent and to carry out their job and to participate in the community . In other words a mentally, emotionally, and physically healthy adult is a better parent and a better member of society. Best interests of the child, as the sole consideration, does not recognize the rights of individual adults to establish and/or maintain nurturing relationships with their child and to make decisions that promote not only their child’s goals but also their own goals for a happy and productive life.

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