September 7, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
By now, everyone on the planet and in galaxies far, far away knows that the New York Court of Appeals ruled recently that same-sex parents can have parental rights even though one or both may not be biologically related to the child. In the case in question, two women had a child via assisted insemination of one of the partners’ eggs. Both took an active role in caring for the child, but one had a biological relationship to the child and the other didn’t. When they split up, the court rightly ruled that the child saw both women as its parents and shouldn’t be deprived of one just because of the lack of a biological link.
That makes sense to me, and most comments on the case agree. So does this editorial, but, in the process, it urges a false and destructive way of looking at, not only the children of same-sex couples, but those of all couples (New York Post, 9/3/16). Sadly, it does so in a way that has been debunked by me and countless others for years and of course by the applicable social science.
But our larger concern is the trend toward emphasizing “parental rights” in the context of divorce (or separation, in the case of parents who never married). In fact, the overriding question in matters of custody should be the best interests of the child.
The editors should realize that, in all but the rarest of couples, the best interests of children and the rights of parents are, or should be, the same. Parents have rights to their children and children’s interests are promoted – again, in almost all situations – by prolonged and meaningful contact with both of their parents. So where is the conflict between parental rights and children’s well-being the Post’s editors assume to exist?
Yes, courts should be aware that some parents aren’t good for kids. They abuse them or are unable to care for them. Those parents exist, but they’re few and far between. Even parents most people would deem to be mediocre at caring for children are still loved and needed by their kids. Kids attach to parents at a very early age and breaking those most fundamental of bonds is always traumatic to them. The Post is wrong to assume a conflict between parental rights and children’s best interests.
Yes, the court claimed it was embracing exactly that priority in this ruling — but its actual directives seem to treat kids like property to be divided according to contractual agreements.
And yet that’s what courts already do without a peep of protest from the Post. As things stand now, courts overwhelmingly order one parent to have the bulk of parenting time with the child and the other parent to have occasional and quite minimal time. That in turn creates the need for child support to be paid by the secondary parent to the primary one. In so doing, children become revenue streams for the primary parent. That of course is the very definition of an “income-producing asset.” If the Post is serious about the courts and parents treating children as the human beings they are instead of a source of income, it’ll go to bat for equally shared parenting, but it never has and I don’t see it happening any time soon.
But the law’s guiding principle should remain the same: The best interests of the children must always be paramount.
But that’s not its guiding principle. Oh, certainly the statutes require courts to rule in the best interests of the child and, having been so instructed, judges routinely intone the mantra. Never has a family court judge done other than ruling in the best interests of children. They tell us so all the time.
But in fact they don’t. Equal, or near-equal, parenting time is what’s in children’s best interests (again, in most cases), but judges rarely order anything like it. The effective loss of one parent by a child is the chief reason why divorce is so traumatic for kids. One day Dad is there to love, protect, provide for, teach, guide, mentor, etc. the child. And society recognizes his value. The next day he’s a stranger by order of a family court. The child may get to see him only every other week, an eon for a very young child. Or it may not see him at all depending on Mom’s proclivities in the matter. No social science exists that concludes that those orders are in children’s best interests and much concludes that they’re not. But courts keep issuing them anyway. Call that what you will, but don’t call it in children’s best interests. It’s not and we’ve long known it.
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