I was reading through the comments to earlier posts and, on more than one occasion, people either invoked or asked about the interests of children. I’m sure I’ve discussed this before (though I cannot locate the post just now…so much for tags?) but it’s good to revisit it from time to time.
I try to keep this blog mostly focused on how we determine who are the legal parents of a child. It’s obvious that the well-being of the child is implicated in this decision. But where exactly do we/should we take it into account?
Perhaps the most surprising thing is that generally speaking, in any given case with any given child, we do not ask what is in the child’s best interest when we are trying to figure out who the child’s parents are. To see why, you might think about what could happen if we did consider the child’s best interest at this point.
Imagine that I have a child that I gave birth to and have raised for two years. My neighbors have a much nicer house than mine, are better educated, hold better jobs with more disposable income, and have already raised one incredibly successful child and are well known to my child. Suppose they go to court and assert that it would be in the best interests of my child to have them as parents instead of me. If the question is “what is best for this child” it’s not impossible that some judge could find that the child would, in the long run, be better off in that other household. Yet surely this is an unacceptable result.
We protect ourselves from that sort of judicial/state intrusion into the family (and that sort of comparison shopping) by determining parenthood in ways that are independent of the best interests of the child in the particular case. So the hypothetical I just described doesn’t happen because I’m seen as the parent of my child not because I’m the best parent, but because I gave birth to the child and am raising the child. (In the event of a dispute between parents, we typically do use “the best interests of the child” as the test to decide the custody arrangement. But that’s after we figure out who the parents are.)
Now this isn’t to say that the interests of children play no role in the law of parentage. Rather than being a factor in individual cases, ideas about the interests of a child influence the more general question of what test we use to figure out legal parentage.
For example, I know a number of folks who frequently comment here are committed to using a genetic test to determine parentage–those who share DNA with a child are the child’s parents. One could advocate for that test by saying that in general, those with the genetic linkage will be the best parents for the child, or that it is best for children to be raised by their genetic parents.
I think some argument about the well-being of children is offered by advocates for most of the competing tests for parenthood. The de facto parent test serves the interests of children by allowing the reality that the child knows to continue, which is good for the child’s sense of security. And so on.
At that general level, one is not concerned with any specific child, however, but rather with children generally. It’s also possible to entertain other factors at this point, too, like the interests of parents.
Of course, the core difficulty is that we don’t agree on what is best for children, either specifically or generally. It’s also more than a bit difficult to prove anything in this regard. So it’s not as though shifting to the general focus makes anything a whole lot easier.