BEST INTEREST OF THE CHILD: IS THAT WHAT YOU REALLY WANT?

It's pretty hard to be against "the best interest of the child." But think again: is it really what you want as the governing standard in third-party custody disputes? You want it to go where it has never gone before? What this means is that courts get to take a child away from its natural-born parents and "allocate" that child to somebody else who would seem to be a neater set of parents, in that court's view, simply on the ground that it would seem to accord with "the best interest of the child."

INEPT PLACEMENTS

After all, why should an "allocation" by mere accident of biology be any better than the one that courts and social workers in their profound wisdom can make? They are surely a lot more scientific than God, say, is, in deciding which couple, or "single mother by choice," is nice enough to deserve this particular wonderful child.

Quite a number of people who are very active in the family law field today are very much in favor of the "best interest" standard for third-party cases, despite the fact that it has never been the law. For one thing there's a big adoption market out there, with a demand which the social agencies, with the agency monopolies that they have in so many states, are just striving and doing their best to fill. After all there are so many nice yuppie couples out there -- and singles of course, and homosexual couples: let's don't forget them -- wanting a baby in the worst way and far, far too many adorable babies seem to have been born to too many worthless louts. It just doesn't seem right at all.

CHILD UNHAPPY

But even more important than that (which we might call the Kimberly Mays problem), they are terribly concerned this year about the Baby Jessica problem. "After all," they keep saying again and again, "the child was unhappy!" You could see her tears. (And here giving voice at last to what really, really seems to heighten their concern to the breaking point) you could see them on T.V.! This latter point seems to have crossed some kind of threshold and brought the whole matter to a new and more pressing level of reality to these people. Tears on T.V.: that's really extraordinarily important. It sort of hits them where they live. Well, yes, trial-practice psychologists tell us that juries nowadays will believe something they see on a television screen more readily than what a witness or a lawyer tells them directly in person.

And then you have the natural parents. They are always so tacky. White trash or black, they don't know how to handle themselves and always look like slobs on T.V. It is surely hard to feel sympathy for the natural parents who gave life to this child. They are trying to stand in the way of the child's happiness with these nice people who have such material and cultural advantages and a big support group behind them. For some mysterious reason best known to themselves they actually want to harm that child. How? They want to keep her from having the very best possible future life, if you can imagine that. It is obviously "possessiveness" on their part, isn't it? Why they are treating that child like a piece of property! The adopting yuppies aren't treating the child like property, are they? It matters not that they have always wanted a baby: they and their highly effective lawyer say they want what's best for the baby. They want her to have the best possible life. Well, there you are: BIC. QED.

INCORRIGIBLE PERVERSITY

And yet courts continue to give children back to natural parents. What evil perversity is abroad in our land, that that happens? Well, it's just our awful old traditional, conservative system, isn't it? That mean old system elevating the tyranny of the birth family over the benign therapy of the psychologically and sociologically aware.

How can our legal system allow this? How can our legal system allow a court in a custody battle to disregard the wishes, nay more than the wishes, the very best interest, of a child? Why our system, it turns out, is truly evil, for it allows discrimination! It allows a presumption, which as we all know equates with prejudice, in favor of natural parents. Natural parents? Those grossly inelegant rednecks and swamp Yankees you see objecting to a child's best interest on T.V.? How is that possible?

WHAT'S WRONG WITH YOU?

Now ask yourself: Isn't it true that every child deserves absolutely the best parents our system can possibly give her? How could you possibly believe that our system has no obligation to get every child the very best possible life? How could you be so hard-hearted as to think otherwise? What are you, some kind of fascist? Are you a weirdo from the Religious Right?

You do not believe that the government should go into every individual family -- yours and mine and every one that has a child, and pluck out that child for scientific, politically correct, reallocation? Well if you don't believe it, you had better contact your Elected Representatives and make your views know, because federal legislative efforts are barreling down the track to "reallocate" thousands of other kids in order to correct this vile injustice and place Baby Jessica where she belongs.

CONSTITUTIONAL OBSTACLES

The background of constitutional law as of this moment is very interesting. The U.S. Supreme Court has apparently never in recent years come up with a full majority opinion squarely holding that children cannot be taken away from their families on the ground of the government's mere "best interest" judgment. A majority of the U.S. Supreme Court felt that way as of 1977, but this was shown by a combination of plurality and concurring opinions in Smith v. O.F.F.E.R., 431 U.S. 816, 3 FLR 3143 (1977), and the previous cases that it cited and built upon. The same principle was recognized in the Circuit Justice Opinion by Mr. Justice Stephens in the Baby Jessica case, DeBoer v. Schmidt, No. A-64 and A-65, ___ U.S. ___, 19 FLR 1448 (6/26/93). Quoting the Iowa Supreme Court with approval, Justice Stephens observed that "courts are not free to take children from parents simply by deciding another home appears more advantageous." However, greatly dissatisfied with this state of affairs, certain Congresspeople have staffers drafting amendments to the PKPA to say that no decision in a third-party custody dispute such as a contested adoption or parental rights termination is worthy of being honored across state lines unless the decision of where to put the child was based upon the standard of best interest. Asked why in the world they would want to amend the interstate custody statutes as a means of obtaining their object, they candidly reply that it is the only excuse they have for making federal child custody law. The PKPA being federal, it is the only thing you could federally amend. Doubtless such constitutional niceties will not trouble reformers a couple of Sessions into the future.

ABA TOLD

The impetus behind these contemplated legislative changes made itself felt when the ABA Family Law Section gathered last Summer in New York City. The Custody Committee was meeting and its Chairman was discussing proposals to do away with the invidious terms custody and visitation in favor of task-specific "parenting plans," when it became apparent that the room had rather suddenly filled up with people who don't usually attend meetings of the Custody Committee. Obviously just released from some other committee meeting and all fired up, these persons had a certain uniformity to them: overweight NPR-listening ex-chainsmokers who looked and talked as though they owned more cats than the Board of Health likes to allow. Turning from cat matters to the discussion at hand, they were impatient. They interrupted. They didn't want to hear that other stuff: they wanted to know if it was actually true, or just a nasty rumor, that some custody decisions are actually being made on grounds other than the best interest of the child. They wanted ABA to make the Federal Government Do Something. No one raised the question of what should happen if someday a misguided government, with different views of social nonconformity and how to deal with it from what prevails today, should want to take away their children. People like this worshipped Goldstein, Freud and Solnit at one time. Perhaps they should read those eminent authors' book Before The Best Interests of the Child (1979).

FAD WITH TEETH?

As the media turn to fresh controversies this tide of zealous advocacy may run its course. However, it may on the other hand turn out that the dragon's teeth have been sown for a bitterly divisive debate that will occupy us for a long time to come. The law reviews will love this debate. They will gravely pontificate about the "split of authority" between the one case (EEB v. DA, 89 N.J. 595, 446 A. 2d 871 (1982)) that says what reformers want the PKPA to be amended to say, and the other 800 or so cases, such as DeBoer v. Schmidt, that don't. Since all ideas are equal and law reviews have no concept of nonsense, this will supply material for ponderous scholarly debate for at least the rest of the present Century.