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What Exactly Is "The Best Interest of the Child"? Part 2

The metaphysical needs of children after parental divorce.

Contrary to the views of many professionals, when parents are asked about the essential needs of their children during and after parental separation, children’s emotional, psychological, social, moral, and spiritual needs are seen to be of paramount importance. But what exactly are these “metaphysical” needs? Can we enumerate these needs and thereby establish a more precise definition of the “best interests of the child”?

According to parents, a major concern in regard to children’s adjustment to parental separation relates to the chaos and upheaval that occurs during a divorce. Order is thus the first essential metaphysical need of children of divorce. A stable environment provides a sense of constancy, predictability, routine, and continuity, essential to child well-being. Children should never be caught in loyalty conflicts between their parents, and need to be assured that the care and nurture of each of their parents will not be interrupted.

Shared parenting, inasmuch as it maintains the involvement of both parents in children’s lives, and reflects as closely as possible children’s existing relationships and routines, best addresses children’s need for order and stability during and after divorce. Inasmuch as parents are able to maintain a stable environment for their children, and limit upheaval in their living arrangements, they are respecting children’s need for order and stability.

Increasingly, parents are seeking novel solutions such as “bird nesting” arrangements where it is parents that rotate in and out of the family home, rather than children shuttling back and forth between two households, in the interests of children maintaining a stable home base, preserving their relationships with their friends and trusted neighbors, and staying in the same schools; all of these measures maintain order and limit upheaval in children’s lives.

Protection and guidance is a second core need of children: maintaining safety and protection from physical and emotional harm. Again, shared parenting works effectively in addressing this need, when abuse and family violence are not present. Shared parenting decreases parental conflict and prevents first-time post-separation family violence, as parents threatened by the loss of their children and their parental identity battle years after their actual physical separation.

One important point that is often overlooked in regard to children’s safety and protection is the conundrum of courts getting it wrong and granting primary residence to parents who are abusive; this is the worst of all possible outcomes for children. Courts sometimes err in awarding sole custody to parents who perform well in an adversarial forum, who are “good litigants,” and are able to “win” “ownership” of their children by making allegations and hostile attributions toward the other parent, convincing the court that they are the superior caregiver. Highly litigious parties in court do not necessarily make the best parents. Without full fact-finding and investigation by competent child welfare authorities, family law judges are limited in their ability to identify child abuse and neglect. Abuse is often hidden, and parents who are skilled in adversarial combat are also skilled in covering up abuse, including parental alienation. Shared parenting ensures that there is at least one non-abusive parent in the child’s life.

Autonomy, the freedom and ability to choose, is a third essential need of children. Shared parenting respects children’s need for autonomy because it applies the principle of the “best interests of the child from the perspective of the child,” and respects children’s preference for shared parenting arrangements. This does not mean that we allow young children to decide their living arrangements after separation, as having to choose between parents forces children into a loyalty conflict, which can be extremely harmful to their well-being. Young children, in particular, do not have the maturity to make such informed choices on their own behalf.

Rather, living arrangements should be based on empirical data on what children themselves identify as in their needs and best interests. And there is ample data from young adult children of divorce reflecting on their needs as children growing up in separate households that children want to spend roughly equal amounts of time with each of their parents after separation, and consider shared parenting to be in their best interests. In this way shared parenting respects children’s needs for choice in their living arrangements, and policies and practices should be informed by what children themselves identify as their core needs.

Equality is a fourth essential need of children, and part of this is respecting the needs of children of divorce on par with children whose parents are living together. Shared parenting respects children’s need for equality, in a way that sole residence does not. Children of separated parents who are not in shared residence situations are discriminated against on the basis of parental status, in regard to the removal of one of their parents from their lives. Whereas a strict legal standard is applied in regard to the removal of a parent from the life of a child non-separated families (the child in need of protection standard—parents are only removed when a finding is made that a child is in need of protection from a parent in substantiated neglect and abuse situations), an indeterminate approach—the discretionary best interests of the child standard—is applied in the removal of parents from children’s lives in separated families. This runs counter to children’s need for equality and non-discrimination, as well as the nondiscrimination provisions of the UN Convention of the Rights of the Child.

Freedom of opinion and expression is another essential need. The voice of the child must be taken into consideration and respected. As with children’s need for autonomy, this does not mean that we allow young children to choose or decide their living arrangements after separation. Rather, living arrangements should again be based on empirical data from child-focused research. In this way shared parenting respects children’s voice, and preserves freedom of expression as a fundamental need of children.

The need for truth is, in many ways, a more important need than any other. This requires that what we know about the effects of different post-separation living arrangements be universally accessible to family members, and not be remote to them or distorted. The need for truth calls for protection against error and lies. Inasmuch as shared parenting as a preferred arrangement for children is based on solid empirical data that demonstrates its salutary effects on child well-being, it provides a standard for decision-making that limits the discretionary power of courts to make decisions based on idiosyncratic biases and subjective, value-based judgments.

Sole custody and primary residence-based decision-making runs counter to the need for truth, as information that is presented in court, with each party downplaying his or her own character flaws and smearing the character of the other party, is thrice contaminated: first by the client when advising his or her lawyer; second by the lawyer when preparing and presenting the case; and third by the judge who reads or retains selectively what is presented in court. Cases are largely decided by the way evidence is presented in court, and thus the determination of the best interests of the child is subject to judicial error. “Truth is the first casualty of war,” and battles over the custody and residence of children are among the most bitter battles wages in court today.

Honor and respect for the inherent dignity of children is another essential need. Honor encompasses being respected and valued within one’s social context and being free from oppression. The fact that children are minors should never imply any difference in the degree of respect and honor that they are owed as human beings. In children we find an essential humanity, that is most visible in early childhood—a playful, intelligent, and creative way of being. Honor entails seeing children for the creatively intelligent people they are, respecting their humanity, recognizing them as essential members of the community, and providing the fundamental nurturance they need in order to flourish.

Respectful love is key. It speaks to the need to respect children as whole people and to encourage them to know their own voices. Children need the kind of love that sees them as legitimate beings, persons in their own right. Respectful love fosters self-worth—and is a prime nutrient in human development.

Shared parenting honors what children have told us they need and want as far as post-separation living arrangements are concerned. Children need both parents, as they see themselves as made up of half their mother and half their father. Any disparagement of one or the other parent is thus an attack against the child’s very essence, his sense of self-worth, and dishonors the child.

Responsibility is another vital human need. Initiative and responsibility, to feel useful and even indispensable, are vital to children’s well-being. For this need to be satisfied self-efficacy is central: the ability to make decisions in matters affecting oneself, and contribute to decisions in one’s social environment. As children grow and develop, they should be encouraged to take responsibility and shared parenting addresses this need as well. As children’s developmental needs and circumstances change, as they grow and develop, shared parenting allows for living arrangements in accordance with children’s age and stage of development, with frequent alternations between parents in the early years, all the way to adolescents having much more self-determination about their living schedules.

Security, the feeling of safety, is another need. Fear and terror are extremely harmful to children’s well-being; security and a sense of safety are thus vitally important. Safe environments foster a child's feeling of security and belonging. The very young need protection from the toxic influences that permeate modern life—from domestic neglect and maltreatment to the corporate manipulations of their minds to the poisonous chemicals gaining access to their bodies. Shared parenting provides children with the safety and security of having their relationships with each of their parents fully protected, and provides them with additional protection from toxic influences in their lives.

At the same time, risk is a core need of children, and being shielded from overprotection and boredom. The complete absence of risk is also harmful. Shared parenting exposes children to two different lifestyles and parenting styles, so that they are much more likely to have a balance between security and protection on the one hand, and risk and excitement on the other.

Privacy and solitude, and confidentiality, are vital needs. Shared parenting spares children the intrusion of courts that place children in the middle of often bitter and publicly-displayed conflicts between their parents.

At the same time, social life and social connection are vital to children’s well-being. Community involvement and participation in the collective allows children to flourish, to have a sense of belonging in a larger social milieu, and to develop a personal investment in their surrounding community. Caring community refers to the "village" it takes to raise a child. The community can positively affect the lives of its children. Child-friendly shopkeepers, family resource centres, green schoolyards, bicycle lanes, and pesticide-free parks are some of the ways a community can support its young. Shared parenting exposes children to a much wider social network than is possible in sole custody situations, and thus addresses children’s need for social life and social connection.

Finally, the need for roots (attachment bonds and nurturant relationships; love, belonging, connectedness to family, language, religion, culture, neighborhood, community, region, and country) may well be the most neglected need of children of divorce. A sense of belonging within various “natural environments” such as family and community is perhaps the most neglected human need in general in contemporary society, a tragic circumstance of materialism and modern consumerism in which individuals are disconnected from the milieux in which humans have naturally participated, and through which we live as moral, intellectual, and spiritual beings. Attachment bonds and nurturant relationships, a sense of belonging and connectedness, are vital needs. Everything which has the effect of uprooting a human being or of preventing one from becoming rooted is extremely damaging. Shared parenting preserves children’s relationships with both parents, and as such best addresses children’s need for roots.

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