In the United States, there is a fundamental tension between the best interests of the child standard and the constitutional rights of parents to raise their children. Where there are two parents in disagreement about how to raise the children or two parents fighting over custody of a child, courts rely on the best interests standard, but the analysis becomes much more complicated when the dispute is between a parent and the state or a parent and a non-parent.
The U.N. Convention on the Rights of the Child (UNCRC) highlights this tension. The United Nations adopted the treaty and opened it for signature in 1989. Since that time, every member state of the United Nations has ratified it except the United States and Somalia, and it entered into force in 1990. Among the many provisions of the Convention is a requirement that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The Convention also provides that member states will not separate children from their parents or sever contact between children and their parents unless it would be in the children’s best interests to do so.
The concern of many people in the United States is that most U.S. states have adopted higher standards than the best interests standard to remove children from the care of their legal parents. In Colorado, for example, the standard is endangerment, not just best interests. In other words, it is not enough that a child would be better off living with a non-parent; the child has to be endangered by staying in the parent’s care. The obvious distinction is that the Convention focuses on the situation from the perspective of the child, not the family or the parents.
Another concern is that the UNCRC also advocates consultation of children regarding their wishes. Many states, including Colorado, have found ways to incorporate the wishes of children indirectly (for example, through the use of guardians ad litem, child and family investigators, and other third parties who testify before the courts). Most state courts avoid involving children directly in the legal process, however, and they especially avoid having children appear in court or testify. The reluctance to involve children in the process directly is partly because courts are concerned about the harm caused to children by involving them in the legal process and partly because courts recognize that children’s testimony can be quite unreliable. Making children testify about whether they want to live with their mother or father, whether their parents are good parents, and what they want to happen in their cases can damage the relationships between children and parents. Children going through a custody dispute or a dependency and neglect action often feel pressure to please a parent or are angry at a parent because of the process. Their fears or emotions related to the case can signficantly affect the reliability of their testimony. For those reasons, many practitioners in the United States also have concerns about over-involving a child in the decision-making process regarding that child’s best interests.
For better or worse, the best interests standard is gaining ground internationally as “the” standard by which to decide matters involving children. In a recent immigration case, the U.K. Supreme Court concluded that the bests interests of a child has to be considered when an immigration tribunal was considering whether to deport a non-citizen parent. In that case, the mother was a Tanzanian national who had unsuccessfully sought asylum in Great Britain on more than one occasion. She had two children in Britain with a British citizen, so her children were undoubtedly British citizens. Because of the father’s poor health and the children’s history of living primarily with the mother, the U.K. Supreme Court was concerned that the children would effectively be forced to return to Tanzania if their mother was deported. Ultimately, the U.K. Supreme Court concluded that the immigration law judge erred by failing to consider the best interests of the children and that the Court of Appeal erred by not giving enough weight to the impact of the mother’s deportation on the children. The text of the judgment can be found here.
In the United States, meanwhile, it is common for children of a deported parent to be faced with the choice of following their deported parent to a country in which they have never lived or remaining behind without their parent. In March 2010, the International Human Rights Clinic (University of California, Berkeley School of Law), Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity (University of California, Berkeley School of Law), and the Immigration Law Clinic at University of California, Davis School of Law published a paper entitled “In the Child’s Best Interest? The Consequences of Losing a Lawful Immigrant Parent to Deportation.” The study relied upon Department of Homeland Security data and focused on the consequences for children whose lawful immigrant parents (non-citizens with valid green cards) were deported for crimes committed in the United States. The study estimates that approximately 100,000 children were affected by their lawful immigrants’ deportations between 1997 and 2007, of which approximately 88,000 of the children were themselves lawful U.S. citizens. 44,000 of the affected children were under the age of 5 when their parents were deported.
The tension between the best interests of the child standard and the other standards we use in custody, immigration, and other cases affecting children only seems to be increasing. It will be interesting to see whether the United States follows the path that European countries seem to be taking or whether it continues to utilize balancing tests that do not necessarily prioritize the child’s interests at the expense of the parents’ and the states’ interests.