Why Judges Should NOT be Determining “What is Best for the Child”
Comments by Brian Shilhavy
Editor, Health Impact News
Our headline, Why Judges Should NOT be Determining “What is Best for the Child”, may sound like a statement that disregards child safety. It may lead one to believe that children are doomed to become victims in many cases if a judge does not step in and rule on what is “best for the child.”
However, Law Professor Vivek Sankaran has made the case that this is NOT the primary role of judges, and that instead judges should be interpreting the law and applying it by objective standards.
The decisions about what are “best for the child” are really parental decisions, and the primary function of a court of law in determining child safety is whether or not the parents are fit to be parents.
I myself would take that one step further, and state that parents should be judged like any other alleged criminal, in criminal courts, with the full due process of law that is part of our constitutional rights, just as these rights are applied to other alleged criminals, such as murderers, terrorists, etc.
If a criminal court cannot convict a parent of criminal conduct, such as abusing their own children, then family or juvenile court judges have no right replacing the parents’ responsibilities to raise their own children with their own opinions about how that child should be raised.
Statistics clearly show that the State makes a poor substitute for parents, and even when it is done in the “best interest of the child,” the child is almost always the one who suffers the most from the trauma of being separated from their families.
Best Interest Is In the Eye Of The Beholder
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.
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.
Read the Full Article at Rethinking Foster Care