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

Posted Monday, January 30th, 2012 by Gregory Forman
Filed under Adoption/Termination of Parental Rights, Child Custody, Jurisprudence, Law and Culture, Not South Carolina Specific, Of Interest to General Public

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.

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

  1. Van says:

    We agree on something 100%.

  2. Jenny Moser says:

    Greg —

    Excellent piece and I overwhelmingly agree with you!

  3. Alexia Pittas says:

    Extremely insightful comments on a difficult issue.

  4. It’s ironic that all these conservatives rushing in to take a side here haven’t considered these issues. Child custody decisions are an extreme intrusion of state power into family life and we need to be clear about the limits. It’s easy to imagine a society were children are routinely taken from parents to obtain better home placements, however there are massive secondary impacts which would produce a society none of us could recognize. Current law recognizes an important distinction.

    The Indian welfare act grew out of recognition that huge numbers of native American children were being taken away from their families and tribes, often with very poor results after childhood ended.

    1. William, I do so agree with you.

  5. Anna Galle says:

    I agree! Your post does a wonderful job of showing how good intentions, i.e., the best interest of the child, can have unintended consequences.

  6. This particular case is relying heavily on uninformed emotion with a stated intent to contravene established laws.

    My 5:26 AM comment of 1/26/2012 at

    Quoting Nicola Ford: “and no this petition is not legally binding- no one ever said it was or pretended it to be anything of the sort. so yeah a 16 year old could sign it. it does show legislators people are watching them.”

    I then asked Ms. Ford, do you really believe that putting our legislators on notice that they are being wathed in this family law case will have any influence on the outcome?

    To which Ms. Ford replied: “the the pressure is relentless, yes. i have worked for a us senator, so i have an idea about how it works.”

    My dear Ms. Ford as ‘tacky’ as you falsely accuse me of being at least I have been well mannered enough to not seek changes in law through ‘bullying’ members of the lesgislature — not even one you allege to have been employed by.

  7. Tom Ward says:

    The most obvious “state” actor in this case is the Cherokee nation, which claims a sort of proprietary right in this child of extremely exiguous Cherokee background. And and the parents being assaulted here are the Cappobiancos, who have been forced to place their daughter in the hands of a Mr. Brown, who despite the genetic connection had signed away his rights to Veronica and thus became the “third party” in the dispute. Totalitarian? Perhaps. But if so, it is you, Mr. Forman, who are defending the totalitarian side.

    1. Mr. Ward:

      My blog expressed no opinion on who should have custody of Veronica. I don’t know enough about the case to express an opinion.

      The point of my blog wasn’t to argue who should have custody of Veronica. The goal was to explain why analyzing her case from a “best interests” standard was misguided and dangerous. When people take the time to actually consider the jurisprudential concerns that arise from custody fights between parents and non-parents, they begin to realize the danger of allowing the state to apply a “best interests” analysis to such disputes.

      Would you dispute that there ought to be a high burden before the state removes children from their biological parents to place them with third-parties?

  8. Lauren says:

    During the 1st 9 months where was the father? Why did it take him 4 months to realize he wanted this little girl? Is he going to pay the family back for the expenses over the past 2 years of caring for his child, feeding her, staying up with her when she was sick , providing a loving home for her? You have to look at both sides, I understand the law says she belongs with the father, but the law can also say the family that adopted her and raised her as their own should still be allowed to have visitation with her , and be a part of her life. This is not a dyfus case where they were caring for a child they new would be returned to the parents. The whole Indian Act ,is not a good enough reason to say this child should be with the father…. if she has roots, she can still be given her history from a 3rd party.

  9. Kay says:

    I have to agree with Lauren here, he signed the papers then changed his mind…and they left the little girl with the adoptive parents because he was deployed for a year…who was going to look after his daughter while he was deployed?? That’s right just leave them with the adoptive parents so they can pay for everything while he is away then when he gets back we will deal with it…and I am guessing that other ethnic communities are not as important because on her mothers side she is more ethnic then Cherokee…so will he be teaching her about that side of her heritage or will she have to miss out…I really feel for the adoptive parents they have really been screwed over here…and I hope the law changes for other families!!…I hope they keep a close eye on her upbringing to make sure everything he says he is doing…he does!!

  10. Amber says:

    A question: would you feel the same way if the third party was also a biological relation, for example the grandmother, who felt that she could be a better or safer custodian than the biological parents? Right now in VA, as in South Carolina, one must first prove as a threshold issue that the bio-parents are unfit before doing a best-interest analysis. All potential third parties are lumped together in this category. Would you support a distinct category for a) blood relations or b) as in the Veronica example above, long term previous guardians?

    More on b): Your counter example of your and your wife’s temporary period of financial difficulty differs from Veronica’s case in that Veronica was already with the adoptive parents and wouldn’t be “taken away” from Mr. Brown in the same sense that some random good parent would be taking away your children in Charleston– it seems a pretty significant leap to ignore the prior relationship factor that makes Veronica’s case so controversial.

    I was presented with the grandparent issue in a case recently myself: the parents are complete messes and the grandparents, with tearful reluctance, wanted to step in out of concern for the toddler’s safety/security… but they’d have a HUGE hurdle in VA and neither the natural relationship, nor past history of caretaking, nor the biomom’s consent even come into play unless I could first prove the bioparents completely unfit. So I’m sensitized to the other side of the issue right now.

    What do you think– should all non-parents be considered equally under the threshold test?

  11. Anonymous says:

    I am experiencing the other side of the spectrum. I have a 2 year old child. my boyfriend and I moved back into his parents home before I became pregnant, due to the economy and us wanting to be able to save up some money. during our time living with them, I became pregnant and had my daughter. we lived with his parents, with our daughter for the first year of her life. From the time my daughter was born, my boyfriends mother became increasingly obsessed with my daughter (as her only daughter suffers from mental retardation) and was attempting to insert herself into every parental decision, to the point it started to worry me. Out of the blue one day, with no notice, my boyfriends parents serve us with custody and visitation petitions, and told us we had 4 hours to move out.

    We ended up having to go out of state, the only housing available under such short notice, thanks to my family. Their entire petition for custody and visitation was based on total BS that was made up and could not be proven in court, mud-slinging. They would claim that we would go out to party at night and leave the child with them, they claimed that we would be verbally abusive infront of the child, that we couldn’t care for her without them being there to supervise, etc..Just absurd nonsense, designed to paint us in a negative view.

    His parents have millions of dollars and think they can buy anything they want, including some one elses child. both of their petitions were denied, and they just appeal and try to wear you down financial, emotionally.

    Meanwhile I have had to spend hundreds of dollars defending myself from baseless accusations that have no proof other than the “word” of my boyfriends parents. its frivolous and meritless litigation.

    This could happen to anyone and the burden of proof is high for that reason. if it were your child someone was trying to steal from you, how would be feel about the burden of proof then?

  12. TLW says:

    I still feel like you will damage a child so young who has only ever known a loving family who was in the process of adopting them. I think they should at least have visitation.

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