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Article 3 of the U.N. Convention on the Rights of the Child requires member states to observe the “best interests of the child as a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.”
As with most articles of the Convention, however, a clear and precise understanding of the “best interest” concept remains elusive, to the point that it is subject to competing interpretations. This is especially true in the realm of parenting after divorce, in which subjective and value-laden discretionary legal judgments are the order of the day. Expert opinions provide little clarity, and decision-makers are stumped when asked to precisely define what they mean by “best interests.” And expert definitions often clash with what children and parents themselves consider to be the core elements of the concept.
I would suggest that when we talk about the “best interests” of children, we should be primarily concerned with their essential needs, helping children grow and develop, and achieve their capabilities to the maximum extent possible. Needs are the nutriments or conditions essential to a child’s growth and integrity, and for every need, there is a corresponding responsibility. In the realm of parenting after divorce, a truly child-focused approach positions children’s needs at the forefront of “best interests” considerations, along with corresponding parental and social institutional responsibilities to these needs. If it can be demonstrated that certain living arrangements, such as shared parenting, best address children’s core needs, this provides a compelling argument for adopting these arrangements as the legal standard. Indeed, it is the responsibility of social institutions, including public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, to support such arrangements.
It is children of separated parents that are perhaps most vulnerable to not getting their essential needs met, for two main reasons. First, parents are going through multiple losses, transitions, and crises, and as a result, are relatively insensitive to their children’s needs. Second, parents are largely left unsupported in regard to these transitions, and in the fulfillment of their responsibilities to their children’s needs, and children ultimately pay the price.
For every need of children, there is a corresponding responsibility. I suggest that a new approach, a responsibility-to-needs orientation to children’s best interests, is vital to the future well-being of children of separation and divorce. And it is the responsibility of social institutions such as the courts to support parents in the fulfillment of their parenting responsibilities to their children’s needs, and not to undermine them, which is exactly what is happening to children within the present adversarial, “winner-take-all” approach. Although current legal policy and practice emphasize the primacy of the “best interest of the child” as a criterion in child custody determination, within an adversarial rights-based system, children’s essential needs are often overlooked, and their safety, security and primary attachment relationships are placed at risk. The hostility that results from the adversarial process and the loss of a parent as a primary caregiver are the strongest predictors of poor outcomes for children.
The very definition of “the best interest of the child” differs markedly between children and parents on the one hand, and legal practitioners and the judiciary on the other, according to a 2000 study by Pruett and her colleagues. Judges focus on parental deficits when determining the “best interest of the child”; parents define “best interests” in terms of children’s needs and their own capacities to meet these needs.
Parental views on children’s essential needs have been the focus of much of my own empirical studies of children in separated families. In my research (Kruk, 2010), I found that although children’s physical needs were identified by parents, in the great majority of cases, children’s emotional, psychological, social, moral, and spiritual needs were seen to be of paramount importance. Contrary to the views of some judiciary, parents indicate that children’s primary need is the active and responsible involvement of both parents in their lives, even in cases of high parental conflict. Correspondingly, the great majority of parents favor a legal presumption of shared parental responsibility in contested cases.
The research on children and divorce has identified a wide range of factors affecting children’s adjustment to the consequences of divorce. Principal among these are children’s needs for the maintenance of meaningful parental relationships with and the love of both of their parents; being shielded from ongoing parental conflict and family violence; stability in their daily routines; and financial security. All of these are severely compromised in the context of an adversarial divorce.
An alternative approach to the “best interest of the child” is being advanced today that suggests that our starting point for ensuring justice for children of separated parents should be a covenant or charter of parental and social institutional responsibilities to children’s essential needs. Primary among these responsibilities is to ensure that children’s needs for the maintenance of meaningful parental relationships with and the love of both of their parents, being shielded from ongoing parental conflict and family violence, and stability in their daily routines are protected.
The starting point of such a covenant or charter is the enumeration of the essential needs of children of children after parental separation. Physical needs are perhaps the easiest to identify: food, warmth, sleep, health, rest, exercise, fresh air. Psychological, social, moral, and spiritual needs, on the other hand, are a little more ambiguous, yet no less essential for the well-being of children of divorce. It is these “metaphysical” needs of children that will be the subject of my next post.
References
Pruett, M.K. et al (2000). Parents’ and attorneys’ views of the best interests of the child. Journal of Divorce and Remarriage, 33, 47-63.
Kruk, E. (2010). “Parental and social institutional responsibilities to children’s needs in the divorce transition.” Journal of Men’s Studies, 18 (2), 159-178.
