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Just Whose Best Interests Are Served?

by Al Knight Denver Post Columnist and Editorial Writer

URL: http://www.denverpost.com/opinion/knight0420.htm

April 20, 2000

The Elian Gonzalez immigration case has been characterized by thousands of spoken and written assertions that "the best interests of the child standard" should be used to determine his fate.

A parade of television commentators, politicians and anti-Castro Cuban-Americans have all echoed one another in calling for the application of the standard as though it offers an infallible guide to resolving disputes involving children.

The truth is that the Elian Gonzalez case is a valuable demonstration of how easily that standard can be manipulated in ways that manifestly work against the interest of the child. The Miami relatives who have had custody of the child since last November now assert that the child would be damaged if returned to his biological father.

In one sense they are merely announcing the results of a self-fulfilling prophesy. They have had control of the child, determining what he sees and does, whom he talks to, in short, his entire range of experience.

If along the way, it was to their advantage to limit contact with the biological father, then that is what was done. If along the way, events needed to be interpreted for him, then that was what was done. Having created a dependence in the child, these relatives now announce that it would be too traumatic to move the boy to new surroundings.

People who have been involved in divorce or custody actions will instantly recognize in the above set of facts, a familiar pattern, one that can be found in literally millions of court cases having nothing to do with immigration.

One parent or custodian obtains the primary access to a young child and works the situation in such a way as to directly disadvantage another parent, usually the father. The manipulation can be subtle ( "Don't you think you have a nicer room here?" or more directly ( "I wish your father cared about you enough to get a nicer place for you to stay.'')

Whether subtle or direct, however, the technique has a name. It's called parental alienation, the art of putting distance between a non-custodial parent and a child.

This act, which in a saner society would be classed as a crime, in fact is often rewarded in custody cases when the person who has done the alienating is given preference in parenting time precisely because judges find such arrangements to be "in the best interests of the child."

What is yet to be determined in the Elian Gonzalez case is whether this manipulation of the child can be ended in time to allow the biological father time and opportunity to rebuild the parent-child relationship.

The best interests of the child is one of those high sounding phrases that gives cover to those who may have nothing more in mind than the "best interests of the parent." Citizens who continue to care about the welfare of children and worry about the effects of marital breakup on children would be well-advised to pay closer attention to how this nearly universal standard is being applied.

There have been far too many cases in which the person doing the most manipulation, and therefore the most harm, has escaped notice. There needs to be some greater presumption in favor of a parent, absent credible evidence of abuse or neglect. There need to be other changes that would actually minimize the custody struggle and the consequent temptation to use rumor and innuendo to besmirch the reputation of either the father or mother.

The Gonzalez case again illustrates the point. To judge from press accounts, never documented, Juan Miguel Gonzalez is a Castro puppet, a person unable to speak in his own behalf, a child abuser and a wife beater. All of this deliberately damaging material has been tossed around by the Miami relatives without due regard to whether or not it is true. The accepted standard in this and other cases appears to be whether it "might be true."

Sadly, the "best interests of the child standard" is similarly exploited every day in family courts across the nation to disadvantage one parent or another. If the case has taught us anything it should be to think critically the next time someone invokes the "best interests" standard.

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Reproduced under the Fair Use exception of 17 USC 107 for noncommercial, educational use. (http://www4.law.cornell.edu/uscode/17/107.text.html)