A child's right to have stable relationships must be central to custody decisions.
When the Coast Guard plucked 6-year-old Elian Gonzalez from the sea last November, he became the subject of one of the more intense child custody dramas of recent times. His Cuban mother perished in the attempt to reach freedom in the United States, and at this writing, Elian is still being fought over by his Cuban father and his Miami relatives.
His grandmothers came from Cuba. The U.S. relatives met with the attorney general. A Florida family court judge asserted jurisdiction while the U.S. Immigration Service argued that this matter was purely one of immigration policy and law. The Supreme Court refused to resolve these squabbles.
Elian's case appears to be an extraordinary child custody conflict. Arguments about what is in his best interests intersect with immigration policy, federal and state procedural rules, and political agendas. But, as unusual as this case may seem, the ethical issues it raises are identical with those that arise routinely whenever the state is asked to take part in determining where a young child will live, who will care for him, and who else will have a continuing relationship with him supported by court-ordered visits.
Even if we agree that "best interests of the child" is the gold standard for deciding these questions, there is disagreement about how that test is to be applied. How does this "best interests" test interact with the rights of individual adults to establish and/or maintain nurturing relationships with the child and to make decisions that promote their own goals for a happy and productive life? To assist us in thinking about these issues, let us take a look at several examples.
CASE 1: In 1968, a father fled Czechoslovakia with his two children and brought them to the United States. Several years later he died of cancer. The neighbors who had cared for the children during the father's illness disputed custody with the Czech mother [In re B.G. (1974) 11 Cal.3d 679]. The California Supreme Court said that the trial court could award custody to the neighbors only if it found that an award of custody to the mother would be "detrimental" to the children; on rehearing, the trial court found detriment and gave custody to the neighbors.
CASE 2: A birth mother withdrew her consent to the adoption of her daughter Haley on the last day of the six-month period when that action was possible and sought to regain custody from the prospective adoptive parents (In re Haley A. [1996) 49 Cal.App.4th 1351]. The California Court of Appeal found the withdrawal of consent timely and ordered Haley returned to the birth mother without considering the best interests of the child. The California Supreme Court granted review, but when Haley was three years old, the case was settled by an agreement for an open adoption whereby Haley remains with her adoptive parents and has visitation with her biological mother. Thus, the California Supreme Court never decided the issues before it in this case.
CASE 3: In the famous Baby Jessica case, the birth parents sought custody from the prospective adoptive parents, claiming that the birth father had never been notified of his right to object to the adoption because the birth mother had named the wrong man as the father [In re B.G.C. (Iowa 1992) 496 N.W.2d 239]. Although the birth parents tried to reclaim Jessica within a few weeks of her birth, the case dragged on for two years, with the child in the custody of the prospective adoptive parents. Eventually, the court denied the adoption and gave custody to the birth parents, without regard to the best interests of the child.
CASE 4: When a child of Native American ancestry was placed with a white couple, her tribe contested the adoption on the grounds that relatives who could teach her the tribal heritage should raise her [In re Bridget R. (1996) 41 Cal.App.4th 1483]. The California Court of Appeal rejected the claim, holding that the child had a constitutional right to maintenance of her established relationship with the adoptive parents.
CASE 5: After a child's birth father committed suicide, the mother remarried, and she and the step-father tried to bar visitation by the deceased father's parents [In re Custody of Smith (Wash. 1998) 969 P.2d 21, cert. granted sub. nom. Troxel v. Granville (1999)]. Washington, where the family lived, has a statute permitting any person to petition for visitation on the basis of the best interests of the child, but the Washington Supreme Court held the statute unconstitutional and allowed the mother to bar visitation by the grandparents. The case is currently pending in the United States Supreme Court.
CASE 6: Two lesbian women living in a committed relationship agreed that one would become pregnant, and they would raise the baby together as joint mothers. But when they split up years later, the biological mother refused to let the other woman visit the child [Crandall v. Wagner (1999) 71 Cal.App.4th 724]. The court held that visitation can be granted only in connection with a divorce, paternity, or juvenile dependency action. Since no such proceeding was pending, it could not award visitation regardless of the best interests of the child. As other California courts have done, it reserved resolution of this problem for the legislature.
CASE 7: Following a divorce, a mother wanted to take a new job in a distant location, which would make it difficult for the father to continue regular and extensive visitation [Marriage of Burgess (1996) 13 Cal.4th 25]. The California Supreme Court said that the custodial parent has a right to move, and the visitation arrangements have to be adapted to the move. While the court can change custody because of the pending move, a custodial parent cannot be barred from moving on the grounds that the move will make visitation more difficult and thus is not in the child's best interests.
The Ethical Issues
The resolutions of these cases, though justified in some instances by the particular statutes or procedural issues before the court, are in fundamental conflict on when the courts should consider the best interests of the child and how to do so. The conflict is not at heart a legal one but an ethical one. Two categories of problems stand out.
The first is balancing the "best interests" test with claims of parental rights. Parents have a right to separate, divorce, and move. They have a right to direct the upbringing of their children, including the right to exclude others from that function. They also have procedural rights to contest custody, visitation, and adoption. But the assertion of any of these rights may conflict with the child's best interests.
The second category is whether determination of the best interests of the child means attending to everything that affects the child or whether certain considerations should be disregarded. Should the courts take into account that one party seeking custody has substantially more income and can give the child better schooling, better medical care, and a less dangerous environment? Should they look at other considerations—homosexuality, religion, race, ancestry, etc? What about "living in a free country" or being a member of an ethnic community to which one has ancestral ties? Or does "best interests" mean the interests of the child in nurture and care apart from these considerations?
Lessons from Developmental Psychology
Research in developmental psychology tells us that children need stability and security and are harmed when they lose their ongoing intimate relationships with those few adults who provide their nurture and care. A large literature in psychology documents the importance of these relationships of attachment between caregiver and child, especially for young children.
When these relationships are stable, they serve as a secure base from which the young child ventures forth into the world of other people, things, and events. Children who enjoy relationships of intimacy and security with their closest caregiver(s) in the first three years are more likely than those who do not to be curious and explore their environments. They are more likely to be friendly and successful relating to other children and new adult caregivers, better able to communicate, more able to play and learn independently, and more likely to grow up to have successful relationships in marriage and at work.
Psychologists and psychiatrists have taken this framework into the clinical realm. A good body of case material and descriptive studies of groups of people who have experienced loss of important ties demonstrate the existence of a pattern of problems now known as "attachment disorder." When there is disruption of an ongoing important relationship of attachment, the child responds with an increased need to control whatever relationships she has the opportunity to come by.
This she does in one of two ways: She may become preoccupied with getting and keeping the attention of caregivers, teachers, and friends at the expense of trying her own wings and building her self-confidence. Alternatively, she may dismiss the importance of relationships and concentrate on independent activities and achievements at the expense of having satisfying relationships.
Either of these patterns is associated with difficulties in adulthood with close relationships, parenting, and finding the healthy balance between independence and closeness that is the cornerstone of mental health. It is important to note that the child who appears to be handling a custody change with no problem may in fact be exhibiting the "dismissing" variation of attachment disorder.
Of course, children have needs other than close attachment. It goes without saying that the placement and support package we create must provide for the child's food, shelter, clothing, health care, and education. The child must be safe in her home, and she must have the opportunity to develop her skills, interests, and character strengths. The emphasis here is on attachment because this is the domain of early development most commonly misunderstood, under-valued, and ignored by the legal system.
From the viewpoint of a developmental psychologist, early successful attachment becomes the working model of how to relate to other people while being an independent person, as well. We must protect children's rights to continue their close relationships with nurturing adults.
An Ethical Framework
How can we as a society proceed in situations of disputed child custody so that the child's best interests are paramount? And at the same time, how can we devise a system that restricts the custodial parent's right to reasonable autonomy only when this is essential to the child's opportunity for healthy development and stability in her most central nurturing relationships? We offer five general ethical principles:
PRINCIPLE 1: We must respect the child as a person and acknowledge that she is the most vulnerable party in the proceeding. Thus, regardless of the circumstances that lead the child's custody to be at issue, her best interests must be the central concern of the state. It is a moral wrong to decide issues of child placement based on adult conflicts and injustices that may have stemmed from adult behavior without examining how these decisions may impact the child. The most important aspect of being a whole person when you are a small child is your opportunity to develop well.
Thus we are especially concerned when courts decide custody and visitation issues by principles that do not allow them to take the interests of the child into account. In the Baby Jessica case (In re B.G.C.), the court considered only that the birth father had been fraudulently deprived of his opportunity to assert a parental objection to adoption. It held that it could take no account of the child bonding and care with the prospective adoptive parents. In Crandall v. Wagner the court interpreted the California Family Code as providing no forum in which it could consider the child's best interests since the parties, being lesbian, had not married.
The decisions of the California Court of Appeal in Haley A. and the Washington Supreme Court in Custody of Smith also found reasons not to consider the best interests of the child. All assume that the child's rights, if any, are only those conferred by statute. We disagree, believing that a child has a natural right, and should have a constitutional right, to be nurtured at least on a par with the parent's right to parent.
PRINCIPLE 2: The placement decision and visitation plans ultimately reached must take central account of the child's important relationships of attachment. There may be several of these, and arriving at a plan to preserve them all may be difficult. Nonetheless, these relationships matter, and they have great impact on development.
It would be unfortunate if, in the case involving grandparent visitation currently being considered, the United States Supreme Court strikes down the Washington law allowing such visitation where a relationship clearly exists, because a child's relationships need protection. The relationship may be with grandparents, as in the Washington case, but it can also be with a stepparent, with a long-term partner who never married the biological parent (or who can't marry her, as in Crandall), with an aunt or uncle, etc.
PRINCIPLE 3: We must move swiftly to provide a placement plan that will offer the child a stable, long-term living situation. Young children develop rapidly. In infancy, the events of a few weeks can result in sea changes. In the toddler years, six months is a developmental stage. In the preschool period, a year is an eternity.
We must balance the due process rights of parents and other players in the case with the child's right to a have a dependable, secure placement that preserves her developmental progress to date and facilitates its continuation. It is of paramount importance that we modify our legal procedures to achieve this important goal.
PRINCIPLE 4: Whoever is caring for the child in the role of a parent must be fit to parent. He, she, or they must be able to provide safety, food, shelter, medical care, and education for the child. This is a well-respected principle that has long been part of societal practice in child custody cases. Since our emphasis has been on the more psychological aspects of custody, we wish to acknowledge and endorse this fundamental rule.
However, we hasten to add a corollary to this principle: The relative fitness of competing candidates for custody ought to be evaluated on the basis of their fundamental abilities to organize and support a structure for providing the things a child needs. Factors that are often considered inappropriately include the relative wealth and status of the parties and the political or religious climates in which the parties live.
In our view race and ethnicity are equally irrelevant although we recognize that this is a point of controversy. There may be extreme cases in which any of these factors could impact parental fitness, such as snake handling as a religious practice, but these must be treated as exceptional situations. Otherwise fitness should be strictly viewed from the perspective of what the child needs to develop in a healthy way.
PRINCIPLE 5: Our respect for family autonomy—the right of custodial parents to make decisions about the day-to-day conduct of their children's lives—must be constrained to prevent the severing of the child's important attachments. At times, extraordinary effort may be required from two or more parties in order that one of them can raise the child effectively with the continuing involvement with the other(s). This is not to say that the state should micro-manage child rearing on a day-to-day basis. What the state can do is protect children from serious psychological harm resulting from severed relationships that are centrally important to their lives.
In Elian's case, the principle of preserving established bonds would require his return to his father. Certainly in ordinary circumstances when a mother dies and the father is a fit parent, no one questions the father's right to custody. One newspaper columnist pointed out that if Elian's mother had been a Mexican fleeing poverty instead of a Cuban fleeing tyranny, Elian would have been returned in 24 hours, probably without publicity or any hearing. We acknowledge that Elian can be given a politically freer and more prosperous life in America. But we question to what extent these are legitimate considerations and doubt that, in any event, they outweigh established parent-child attachments.
Eleanor Willemsen, professor of psychology at Santa Clara University, and Michael Willemsen, an attorney specializing in appellate law, often work together on cases involving child custody disputes.
This article was originally published in Issues in Ethics - V. 11, N. 1 Winter 2000.