Whose Best Interest Served in Child Custody Cases?
There are secret courts operating in our midst, and I am not referring to those tribunals whose focus is national security. I’m talking about something more basic and closer to home. I’m talking about our juvenile courts, where the fate of children is sometimes determined.
Consider the case of Jane Doe and John Doe, two Connecticut parents stuck in Kafkaesque proceedings. They are in the midst of a divorce. They have three children. Those children are now in foster care, and it is not clear when the parents will again have the right to raise them as they see fit. In fact, it is not even clear when the father will even get to see his children again.
I represent John Doe, but I cannot tell you his real name. Neither can I write in much detail about the case. Indeed, even saying as much as is written here will raise the hackles of insiders in the juvenile courts. These secret courts demand confidentiality, even as they seek to do justice.
By law, juvenile court proceedings are super-hush-hush. That’s because we want the crises that befall children to leave no trace in the otherwise semi-transparent world of the courts. Thus, a child can be declared a delinquent, but you’ll never know it; or a child can be swept away, taken from their parents and placed in foster care, or even taken away from their parents for all time, the family bonds severed by the cold logic of the law. You’ll never know.
In the Doe case, the Department of Children and Families removed the children from the marital home shortly after the couple initiated divorce proceedings. The three kids were placed in emergency foster care. The parents were given only supervised visitation. Then, months ago, the father’s visitation was suspended altogether on the say-so of a DCF social worker. He’s hoping to see his kids again, and soon.
The Doe’s divorce case limps along in the family court, while the state has seized custody of their children. Their parents’ lives have become a nightmare.
Juvenile court proceedings on what to do with the kids, and how to restore parental bonds, are surreal. Each child now has a lawyer. A separate lawyer serves as guardian ad litem for the kids. The mother has a lawyer. I represent the father. The Department of Children and Families has a lawyer. We sit arrayed in a broad arc in a spacious courtroom in New Britain, facing a beleaguered judge who tries to figure out what is in the children’s best interests.
I am persuaded that one of the very worst things that can happen to a child is that he or she fall into the hands of the court system, whether it be the family court or the juvenile court. That is because the courts use a legal standard for deciding what to about kids that amounts to little more than high-minded nonsense — the best interest of the children.
A legal standard — others include the well-known standard in a criminal case, proof beyond a reasonable doubt — operates as a cognitive road map, it tells a judge what a party must prove to get what they want. Thus, to persuade a judge to do something with a child, a party must persuade the judge that what it wants is in the best interest of the child.
That sounds right, doesn’t it? Don’t we want the very best for kids? The trouble is no one really knows what’s best. Most of us were raised by parents who did the best they could, yet few of us can claim to have been raised in ideal circumstances. For the overwhelming majority of children, almost all of the time, the effective standard our parents used was good enough given the resources at their disposal. It took no experts to help our parents meet this standard.
But once a family fails, either by divorce in which both parents seek legal custody, thus forcing a decision about where the children should go on the courts, or in a case of child neglect, the standard is elevated from what works to what is best. The court then turns to experts to decide what is best.
There is an infrastructure of mental health professionals serving the family court and the juvenile court on a contract basis. These folks, many with doctoral level training in clinical psychology, accept court-ordered appointments to provide treatment of one sort or another to families in crisis. Enormous fees are generated in some of these cases: in family cases, the parties pay the costs themselves; in juvenile cases, the costs are absorbed by the state.
But are these experts any better than parents at discerning what’s best for kids? Listening to their testimony in court is a dreary exercise. I wonder how many of these experts in what is best for kids have raised perfect children? Odds are, the experts are no better than the rest of us.
In the Doe case, a judge ordered that the parents and children have something called reunification therapy, thus requiring more experts. Yet, many of the state’s top experts are refusing to serve.
Why? One wants to a guarantee that he won’t be sued — in other words, he wants to be paid to perform a service but to be relieved of accountability. Others have stated they will not get involved in any case in which I represent a party.
I’ve been aggressive in attacking this for-profit adjunct to the courts, successfully forcing one guardian ad litem — not the one involved in the Doe case — off of a case after court hearings in which she endured a blistering cross-examination. I’ve also argued that it would be far less costly to let juries decide what to do with kids in custody cases. The community ends up bearing the cost of broken families, after all.
Perhaps what astounds most about the Doe case is that insiders tell me it is moving at a fast pace. Try telling that to Mr. Doe, who wonders when he will next hold one of his children. But it’s a secret, this unfolding tragedy in our midst. Father, mother, children, all ache in a world without windows, a world you must never see.