There are two critical flaws in the Best Interest of the Child doctrine which forms the basis for all divorce and family laws 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 its unassailable, which is a lot of its danger.
Without operational definition of what exactly may be in any one childs best interest much less all childrens interest it joins In the name of the Lord, and National Security, as a cover for any crime. Anyone can evoke it to 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.
Without definition, best interest means whatever the user wants at the time of its use. Which brings us to the second problem: in whose hands it is given for use.
We will not argue that a childs best interest must be paramount in every case. At issue is, what makes any legislator, judge, or social worker any judge of what it is for any child in any case? So this slogan which is all it is is a cover for a power-grab. Those who use, legislate, or rule by it, do not care about any children at all. They care about power over others.
Which returns us to the first point: a cover for hideous crimes. In the name of best interest, children have their families reduced by half. The belief seems to be that childrens interests are served by having only one parent, by replacing the other with money, and 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 may lie in not taking the interest of the children from the parents in the first place. 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 healthy 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 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. Such is the danger of intervention.
A childs 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 the child is adult. 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 childs life, they are best to do so. Not transient judges or social workers.
A childs family exists whether the parents are married or not. Unless, of course, society comes along with a different paradigm and insists that, somehow, just because of the state between its parents, the child must no longer have its family.
Which is the point. Whatever may happen between parents, the childs 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.
Those who really do care about children will seek to protect and supporting its family as its family while keeping the adults apart, not try to take parental roles for themselves. We could keep divorce strictly between the parents and not involve the children. Societys only function would be to protect and support the childs family as its whole, intact family. That means support the parents as the definers and managers of the family. Both, equally, at once.
©2007 KC Wilson
To nourish children and raise them against odds is in any time, any place, more valuable than to fix bolts in cars or design nuclear weapons. - Marilyn French