There are two critical flaws in the "Best Interest of the Child"
doctrine that forms the basis for all family law in Euro-rooted
countries: Its lack of definition, and its assignment.
Whatever is done in any case must be whatever is in the best interest
of the children. Not the adults, the children. No one can argue with
that. It sounds so noble it's unassailable, which creates its danger.
Without operational definition of what exactly may be in any one
child's best interest -- much less all children's -- it joins "In
the name of the Lord," and "National Security," as a cover for crime.
It can justify any act. Indeed, one of the ironies of watching
legislators struggle with family law is to see them first say,
"There is no 'One size fits all,'" only to use "best interest" as
the one for all, and as though it had any meaning. Relying upon it
is an abdication by legislators.
Without definition, "best interest" means whatever the user wants at
the time of its use. That brings us to its second problem: in whose
hands it is given.
We will not argue that a child's best interest must be paramount in
every case. At issue is, what makes any legislator, judge, or social
worker an appropriate judge of what it is for any child? So this
slogan -- which is all it is -- is a cover for a power-grab. Those
who use, legislate, or rule by it, rarely care about children but
seek power over others.
Which returns us to the first problem: a cover for hideous crimes.
In the name of "best interest," children have their families reduced
by half or completely eliminated. In divorce, the belief seems to
be that all children's interests are always served by having only
one parent and replacing the other with money, plus allowing the
mother to block even visitation or move to another continent.
Who says this suits the child? Who ought to be the judge?
An alternate basis for family law lies in not taking the interests
of the children out of the parents' hands. Divorce is an admission
the adults do not get along, not that they no longer love their
children or are suddenly incompetent parents. Those who cannot see
how this could work see only power and hierarchy, not the distinct
roles and areas of care that characterize a family.
General systems theory appeared in the social sciences in the 1960s
at the same time as ecology and holistic medicine. All are signs of
re-discovering systemic thinking instead of exclusive reliance upon
Aristotelean linear thinking. (Seeing the whole at once with all
inter-relationships, instead of only one, one-dimensional cause-
effect line in isolation.)
General systems theory views a family as an eco-system. You cannot
affect one part without affecting all others. If you remove or
introduce an element, there is no way to predict how benign or
malignant that will eventually prove. This is the danger of
intervention.
A child's family is its extended womb. Reptiles and insects give
birth or lay eggs and leave. But the complexity of the human requires
we extend the womb to the social-emotional realm until adulthood.
This womb is defined and managed by those with a life-time tie to
the child: its parents and their families. Being closest and a
permanent part the child's life, they are best to do so, not
transient judges or social workers.
A child's family exists whether the parents are married or not.
Unless, of course, society imposes a different paradigm: that,
somehow, because of the state between its parents, a child must no
longer have its family.
Which is the point. Whatever may happen between parents, a child's
family is those who are part of him or her forever. It hardly matters
if the parents hate each other or where each lives. Physical location
and number of homes are irrelevant compared to a consistent womb.
For divorce, those who really do care about children seek to protect
and supporting a child's family as its family while keeping the
adults apart, not assume parental roles for themselves as with a
child's best interest. We could keep divorce strictly between the
parents and not involve the children. Society's only function would
be to protect and support the child's family as its whole, intact
family.
That means both parents, equally, at once. A normal, balanced
family as far as the child is concerned.
Copyright © 2004 K.C.Wilson.
K.C. Wilson is the author of Co-parenting for
Everyone, Male Nurturing, Delusions of Violence,
and The Multiple Scandals of Child Support, all
available as e-books
at http://harbpress.com.
