After almost 4 years of being a child counselor in Sioux Falls and surrounding areas, I get frustrated when I hear stories like this:
Jackson was born to his mom 6 weeks premature with THC in his system. He was removed from his mom’s custody temporarily while she attended inpatient chemical dependency treatment and then served 60 days in jail. Jackson lived in a foster home for the first 90 days of his life with no visits with his mom because she was too far away for visits. After his mom completed treatment and served her jail time, Jackson was returned to her custody. He lived with his mom until he was 9 months old when their home was busted in a drug raid. Jackson’s maternal grandma stepped in to care for Jackson while his mom returned to treatment for a second time and once again served some jail time. Jackson once again didn’t see his mom for 4 months until his mom was released from jail for the second time.
At the hearing to decide whether Jackson should return to his mom’s care, the court rules that Jackson’s mom has the right as a parent to prove her capabilities to parent Jackson, and Jackson was returned to her care. After getting custody back, Jackson’s mom moved in with a group of friends she had met while at treatment. Jackson’s mom showed some significant improvement in her sobriety and for six months, she remained sober. Then one night, Jackson’s mom got pulled over for speeding and was arrested for possession of drugs and DUI. Jackson was removed from the home by his child protection worker and placed in a different foster care because his previous foster home was full.
If you aren’t familiar with families who are involved with child protection, that story may have come as a shock to you. Unfortunately, situations like this occur more often than you’d like to think. However, it isn’t just families involved with child protection that put their children through rough times like this. Other families have similar experiences, like this one:
Just 6 weeks after Brooklyn was born, her mom decided that she didn’t want to be a mommy right now and left Brooklyn with her dad. Brooklyn’s dad raised her by himself until she was five years old, when suddenly her mom returned. Brooklyn’s mom stated that she was ready to be a mom and demanded that Brooklyn’s dad give her custody of Brooklyn. The couple decided to take the matter to court, as Brooklyn’s dad believed that he should have sole custody of Brooklyn since her mom had not been present in her life for five full years, and Brooklyn’s mom believed that she should at least be entitled to joint custody of her daughter, although she wanted full custody.
At court, the judge determined that Brooklyn’s mom has a right to have custody of her child since she never legally terminated her rights and granted joint custody to both parents. The court determined that the parents should share custody of Brooklyn and that parenting time should be equally shared between parents. As a result, Brooklyn was required by the courts to spend equal time with her mom—who was a complete stranger to her at this point—and her dad.
I’ve heard a lot of terribly traumatic stories as a therapist of crimes committed by terrible people. But stories like the ones above bother me even more than those stories of criminal acts committed by terrible people because it isn’t criminals who have caused the issues for these kids. It’s a combination of selfish parents and a legal system that fail these kids in their greatest time of need.
Whether a child is involved in a child protection case, like Jackson, or a battle for custody case, like Brooklyn, what really should be involved in making decisions for temporary or permanent custody of that child? The obvious answer is “whatever is best for the child.” Isn’t this the whole reason why the courts are getting involved in the first place?
Unfortunately, it doesn’t seem that this is what is happening. Instead, it seems that often times the legal system looks at the “rights of the parents” when making their decision instead of what is best for the child. Too many times I have heard statements from parents, lawyers and even judges that talk about the legal rights of the parents in child custody battles. But who is advocating for the rights of the child in this situation?
Is it fair to expect that Jackson will just sit in foster care and wait for 3 years for his mom to get clean and sober? And then, is it fair to demand that he leave the foster home that has been his home and family for three full years to return to the care of someone who is practically a stranger to him by now?
Is it fair to Brooklyn to demand that at five years of age she start living half of her life with someone she has never met before? Is it appropriate for her to instantly be expected to feel safe and comfortable with this woman or to trust her to meet all of Brooklyn’s needs when her dad isn’t there to do that for her?
In my opinion, neither of these situations is fair to the child. Instead of making decisions based on the well-being of the child, there seems to be a trend in the legal system to think first of how the parents’ rights are protected, and the child’s needs come second. In order to make decisions that are appropriate for all children who are caught in this terrible spot, there must be a shift to focus on the needs of the child when making determinations of custody both in child protection cases and divorce cases.
I was delighted when I came across this book by Benjamin D. Garber, PhD., created specifically to help professionals in the field of family law to make recommendations based on the best interests of the children, not the best interests of the parents. I’m hopeful that this book can encourage child protection social workers, guardians ad litem, mental health professionals, mediators and other family law professionals to change the way they make recommendations for child custody and focus on the best interests of the child for the course of childhood, instead of the best interests of the parents.