Legal decisions in questions of child custody often seem to require the wisdom of biblical King Solomon. Faced with two women claiming to be the mother of the same child, Solomon ordered the child be cut in half with half given to each woman. The biological mother pleaded against the decision, willing to relinquish her claim in order to spare the child, leading the King to declare her the true mother.
Aside from the implication that a willingness to sacrifice oneself on behalf of one’s child is the test of true motherhood, the legal issues presented in real cases raise many complicated questions. The most recent case attracting attention is that of a 3-year-old boy, son of a Navajo birth mother, whose adoptive parents are challenging a federal law governing Native American children in state foster care. The law requires that priority to adopt them be given to Native families to reinforce the children’s tribal identity.
The adoptive mother in this case is quoted as saying, “culture is important but attachment is, too,” when the Navajo tried to move him to an adoptive tribal family a year after he had been placed in her foster care. In this case, two “mothers”, the tribe and the state are fighting over who has claim to Native American children. Increasingly in recent years, custody disputes have involved foster parents who want to adopt a child they have been raising and state agencies who want to shift the child to a biological parent or to relatives of the biological parent.
“The best interests of the child” is the concept long embedded in the law, which has had a presumption in favor of biological parents, traditionally the biological mother. The prevailing legal interpretation of this concept of best interests was challenged by the 1973 publication of, “Beyond the Best Interests of the Child,” a book by law professor Joseph Goldstein, child analyst Anna Freud, and child psychiatrist Albert Solnit. In it, the authors shifted the definition of best interests from biological parent to a concept of psychological parent, insisting that the child’s perspective be controlling in legal custody proceedings.
Using existing psychiatric understanding of child development, the authors point to the importance of the continuity and character of the child’s relationship with the adult he perceives as his parent. This perception rather than the fact of biological parenthood is the basis of their relationship. The “psychological parent” is based on day-to-day interactions, companionship and shared experiences, a role that can be filled by any caring adult whatever the biological or legal relationship might be.
The authors were clearly referring to attachment and stressed that once such a relationship is formed it should not be disturbed unless there is serious provocation. The emphasis on the importance of perceived relationships and the need for continuity led the authors to develop guidelines for all child placements, foremost of which was protecting the child’s need for continuity of existing relationships.
These guidelines have proven difficult to apply in the real world of foster care placement despite the shift in focus to children’s needs, including psychological as well as physical needs. Today there are new challenges in custody proceedings involving gay or lesbian parents and surrogate motherhood. New kinds of family arrangements have raised new challenges to the “best interests of the child.”
Increasingly, fathers seeking custody have challenged the traditional idea of the mother meeting the “best interests of the child,” although the concept itself continues to prevail. In the mid-seventies, well-known psychologist Lee Salk attracted considerable attention as a father awarded custody of his children in a divorce. Now the importance of fathers is well established.
The authors referred to, questioned whether it is possible to achieve the “best interest of the child” and sought to substitute “the least detrimental alternative” as a standard. Most parents today strive to meet their child’s best interests within the family and are forced into the least detrimental alternative in the absence of affordable, quality child-care.