What Exactly Is “The Best Interest of the Child”?
The Essential Needs of Children After Parental Divorce Post published by Edward Kruk Ph.D.
on Feb 22, 2015 in Co-Parenting After Divorce
Article 3 of the UN Convention on the Rights of the Child requires member states to observe the “best interests of the child as a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.” As with most articles of the Convention, however, a clear and precise understanding of the “best interest” concept remains elusive, to the point that it is subject to competing interpretations. This is especially true in the realm of parenting after divorce, in which subjective and value-laden discretionary legal judgments are the order of the day. Expert opinions provide little clarity, and decision-makers are stumped when asked to precisely define what they mean by “best interests.” And expert definitions often clash with what children and parents themselves consider to be the core elements of the concept.
I would suggest that when we talk about the “best interests” of children, we should be primarily concerned with their essential needs, helping children grow and develop, and achieve their capabilities to the maximum extent possible. Needs are the nutriments or conditions essential to a child’s growth and integrity, and for every need there is a corresponding responsibility. In the realm of parenting after divorce, a truly child-focused approach positions children’s needs at the forefront of “best interests” considerations, along with corresponding parental and social institutional responsibilities to these needs. If it can be demonstrated that certain living arrangements, such as shared parenting, best address children’s core needs, this provides a compelling argument for adopting these arrangements as the legal standard. Indeed, it is the responsibility of social institutions, including public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, to support such arrangements.
It is children of separated parents that are perhaps most vulnerable to not getting their essential needs met, for two main reasons. First, parents are going through multiple losses, transitions and crises, and as a result are relatively insensitive to their children’s needs. Second, parents are largely left unsupported in regard to these transitions, and in the fulfillment of their responsibilities to their children’s needs, and children ultimately pay the price.
For every need of children there is a corresponding responsibility. I suggest that a new approach, a responsibility-to-needs orientation to children’s best interests, is vital to the future well-being of children of separation and divorce. And it is the responsibility of social institutions such as the courts to support parents in the fulfillment of their parenting responsibilities to their children’s needs, and not to undermine them, which is exactly what is happening to children within the present adversarial, “winner-take-all” approach. Although current legal policy and practice emphasizes the primacy of the “best interest of the child” as a criterion in child custody determination, within an adversarial rights-based system, children’s essential needs are often overlooked, and their safety, security and primary attachment relationships are placed at risk. The hostility that results from the adversarial process and the loss of a parent as a primary caregiver are the strongest predictors of poor outcomes for children.
The very definition of “the best interest of the child” differs markedly between children and parents on the one hand, and legal practitioners and the judiciary on the other, according to a 2000 study by Pruett and her colleagues. Judges focus on parental deficits when determining the “best interest of the child”; parents define “best interests” in terms of children’s needs and their own capacities to meet these needs.
Parental views on children’s essential needs have been the focus of much of my own empirical studies of children in separated families. In my research (Kruk, 2010), I found that although children’s physical needs were identified by parents, in the great majority of cases, children’s emotional, psychological, social, moral and spiritual needs were seen to be of paramount importance. Contrary to the views of some judiciary, parents indicate that children’s primary need is the active and responsible involvement of both parents in their lives, even in cases of high parental conflict. Correspondingly, the great majority of parents favor a legal presumption of shared parental responsibility in contested cases.
The research on children and divorce has identified a wide range of factors affecting children’s adjustment to the consequences of divorce. Principal among these are children’s needs for the maintenance of meaningful parental relationships with and the love of both of their parents; being shielded from ongoing parental conflict and family violence; stability in their daily routines; and financial security. All of these are severely compromised in the context of adversarial divorce.
An alternative approach to the “best interest of the child” is being advanced today that suggests that our starting point for ensuring justice for children of separated parents should be a covenant or charter of parental and social institutional responsibilities to children’s essential needs. Primary among these responsibilities is to ensure that children’s needs for the maintenance of meaningful parental relationships with and the love of both of their parents, being shielded from ongoing parental conflict and family violence, and stability in their daily routines are protected.
The starting point of such a covenant or charter is the enumeration of the essential needs of children of children after parental separation. Physical needs are perhaps the easiest to identify: food, warmth, sleep, health, rest, exercise, fresh air. Psychological, social, moral and spiritual needs, on the other hand, are a little more ambiguous, yet no less essential for the well-being of children of divorce. It is these “metaphysical” needs of children that will be the subject of my next entry.
Pruett, M.K. et al (2000). Parents’ and attorneys’ views of the best interests of the child. Journal of Divorce and Remarriage, 33, 47-63.
Kruk, E. (2010). “Parental and social institutional responsibilities to children’s needs in the divorce transition.” Journal of Men’s Studies, 18 (2), 159-178.
Sixteen Arguments in Support of Co-Parenting
What the Latest Research is Saying about the Best Interests of Children Post
by Edward Kruk Ph.D. on Apr 16, 2012 in Co-Parenting After Divorce
I have long maintained that a more child-focused approach to resolving parenting disputes after separation and divorce is needed to reduce harm to children and ensure their well-being. Usually, when parents cannot agree on parenting matters, they take their case to a judge for a resolution. The court then applies a "best interests of the child" standard in its decision-making in regard to kids’ future living arrangements. The problem is, however, that this standard is extremely vague and indeterminate, based on projective speculation about which parent might in future be the “better” parent, and thus subject to judicial bias and error. Judges not trained in child development and family dynamics are given unfettered discretion, and this results in unpredictable outcomes based on idiosyncratic biases and subjective value judgments.
Our current system of resolving child custody disputes rarely considers either children’s needs from children’s own perspective, or current research on child custody outcomes. What is needed is a new standard, a "best interests of the child from the perspective of the child" standard, and an approach to child custody determination that is built on a strong foundation of empirical research.
My recent article in the American Journal of Family Therapy, "Arguments for an Equal Parental Responsibility Presumption in Contested Child Custody," outlines sixteen distinct arguments in support of a shared parental responsibility presumption in contested child custody, which are presented from a child-focused perspective, with clinical and empirical evidence in support of each argument contrasted to the conflicting evidence. The shared parental responsibility alternative addresses the problems associated with judicial bias and error. The sixteen arguments are as follows:
1. Shared parenting preserves children’s relationships with both parents
2. Shared parenting preserves parents’ relationships with their children
3. Shared parenting decreases parental conflict and prevents family violence
4. Shared parenting reflects children’s preferences and views about their needs and best interests
5. Shared parenting reflects parents’ preferences and views about their children’s needs and best interests
6. Shared parenting reflects child caregiving arrangements before divorce
7. Shared parenting enhances the quality of parent-child relationships
8. Shared parenting decreases parental focus on “mathematizing time” and reduces litigation
9. Shared parenting provides an incentive for inter-parental negotiation, mediation and the development of parenting plans
10. Shared parenting provides a clear and consistent guideline for judicial decision-making
11. Shared parenting reduces the risk and incidence of parental alienation
12. Shared parenting enables enforcement of parenting orders, as parents are more likely to abide by an equal parental responsibility order
13. Shared parenting addresses social justice imperatives regarding protection of children’s rights
14. Shared parenting addresses social justice imperatives regarding parental authority, autonomy, equality, rights and responsibilities
15. The discretionary best interests of the child / sole custody model is not empirically supported
16. A rebuttable legal presumption of shared parenting responsibility is empirically supported
Many of these findings run counter to now-outdated research and prevailing practice wisdom in the field of divorce. However, there is an emergent consensus within the divorce research community that in the great majority of contested cases of child custody, where family violence is not a factor, children's needs and interests are best served by preserving meaningful relationships with both of their parents. Children need and want both parents in their lives, beyond the constraints of "visitation" relationships and "primary caregiver" arrangements. Shared parenting is a viable and desirable alternative in this regard, and “in the best interests of the child from the perspective of the child.”