Biological Parents and Third-Parties

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, see “Constitutional 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, see “When 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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Tags: Adoption, Capobianco, Charleston Post & Courier, Child Custody, Jurisprudence, Nikki Haley, Paternity

9 Responses to “In disputes between biological parents and third-parties, we don’t want decisions to be based on “the best interests of the child””
Van says:
January 30, 2012 at 8:56 am
We agree on something 100%.

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Jenny Moser says:
January 30, 2012 at 9:03 am
Greg —

Excellent piece and I overwhelmingly agree with you!

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Alexia Pittas says:
January 30, 2012 at 11:08 am
Extremely insightful comments on a difficult issue.

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William Hamilton says:
January 30, 2012 at 12:06 pm
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.

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Lilly Collette says:
January 30, 2012 at 12:52 pm
William, I do so agree with you.

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Anna Galle says:
January 30, 2012 at 12:19 pm
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.

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Lilly Collette says:
January 30, 2012 at 12:47 pm
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 http://www.postandcourier.com/news/2012/jan/25/20000-want-to-save-veronica/?plckFindCommentKey=CommentKey:bcd58443-34de-4aed-8b44-427cf3e6a39c

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.

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Tom Ward says:
February 6, 2012 at 4:22 pm
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.

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Gregory Forman says:
February 7, 2012 at 10:13 am
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?