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In disputes between biological parents and third-parties, we don’t want decisions to be based on “the best interests of the child”

A review of the excellent news reporting from Allyson Bird at the Charleston Post and Courier, regarding the adoption case involving two year-old, Veronica, her prospective adoptive parents, Matt and Melanie Capobianco, and her Cherokee birth father, Dusten Brown, demonstrates a misunderstanding when a “best interests of the child” standard is applicable.  For custody cases between two biological or legal parents, such a standard is perfectly appropriate.  For custody cases between parents and non-parents, application of such a standard is frankly totalitarian.

The facts of Veronica’s case are tragic.  She was placed with the Capobiancos shortly after her birth.  Four months later Brown, a member of the Cherokee nation and an Oklahoma resident, sought a finding of paternity and custody.  After a recent trial, the family court judge, applying the 1978 Indian Child Welfare Act (an act which I acknowledge knowing nothing about), ruled in Brown’s favor and ordered Veronica placed with her father.  Brown recently took Veronica from the Capobiancos to Oklahoma.  The South Carolina Supreme Court has accepted direct review of the Capobiancos’ appeal.  Meanwhile supporters of the Capobiancos hold public demonstrations and petition drives, with our state governor, Nikki Haley, telling the press, “My heart breaks for Matt and Melanie.”   Many of the commentators ask how removing a two year old from the only caregivers she has ever known and placing her with a stranger can be in the child’s “best interests,” with the implication that it cannot be.

To which I would retort, “so what?”  Or to be less flippant, “do we really want the state taking children away from their biological parents merely because it believes the child’s ‘best interests’ lie elsewhere?”   In custody battles between biological parents and third-parties, I think most of us would agree that we want to impose a high burden on the state before giving custody to third-parties.

For almost a century the United States Supreme Court has recognized that the due process clause of the 14th Amendment to the United State Constitution gives parents a protected liberty interest in raising their children.  For more information on this topic, seeConstitutional Limitations On Family Court Authority To Override Parental Decision Making.”  South Carolina case law recognizes that in order to remove a child from a biological parent and place that child with a third-party, one must first prove the parent is unfit. Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781, 782 (1985).   Even when the parent tries to obtain the child back from a third-party, the courts do not employ a pure best interests standard but instead employ the four-part test set forth in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989).   For more information on this topic, seeWhen Parents Seek to Reclaim Custody from Third-parties: Moore & Its Progeny.”

Most of us should be glad the courts don’t employ a best interests standard in custody battles between biological parents and third-parties.  If the courts employed such a standard, anyone who could claim to do a better job parenting then we do could, in theory, seek and obtain custody of our own children.  When my own first child was born, my wife and I were new residents of Charleston, South Carolina, and knew few people within the state.  We were both unemployed and deeply in (student loan) debt.  There were many people who were in objectively better circumstances to raise our daughter but, because we only needed to be fit parents to withstand such a challenge, we had no risk of losing custody of her to a third-party.  I suspect many first time parents are in similar situations.  It’s a good thing we don’t allow the government to always employ a best interests standard in deciding our own children’s custody.

Most Americans rightly deplore the child rearing practices of totalitarian societies in which children are seen as the property of the state and are encouraged to spy on their parents and report any parental deviation from the state orthodoxy.  We read fiction such as “Brave New World” as a dystopian warning against allowing the state, rather than parents, to raise children.  Preventing the state from imposing its own judgment of a child’s “best interests” against the wishes of a biological parent may result in occasional tragic stories such as Veronica’s (which might have been less tragic if the Capobiancos had agreed to let her live with her biological father immediately after he sought custody).  Veronica’s case might be ideal to debate the steps that a biological father of a child born out of wedlock should be required to undertake to develop his parental rights.  It might be a useful case to debate the balance between state/federal government and Indian sovereign rights.   But allowing the state carte blanche to place children wherever it wishes upon the state’s own determination of the child’s “best interests” is totalitarian social engineering.

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