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Elian, grandparents' rights case highlight 'madness' of custody fights

May 11, 2000
Web posted at: 2:48 p.m. EST (1848 GMT)

(FindLaw) -- The fight over Elian Gonzalez, and the "grandparents rights" case pending in the Supreme Court, highlight the madness children face in a protracted custody dispute. This madness persists because the generally-accepted perception that, in family law, the best interest of the child prevails, is wrong.

ALSO • Appeals court in Atlanta hears Elian's asylum bid     CASE FILE: • Boy in the Middle     TRANSCRIPTS: Michael Wald discusses the legal rights of a 6-year-old     MESSAGE BOARD U.S./Cuba relations

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Family law's mandate is to serve the child's best interest. But those interests are balanced against adults' rights to custody and visitation -- often at children's expense. Whatever methodology exists to determine what's best for children is thus thrown off-balance by a legal-rights regime that has more to do with property-division than with children.

Elian's father and great-uncle each claim "rights" over Elian. The public asks, what about Elian himself? Few Americans believe that events which have transformed him into a small, cute, political football served his interests. Similarly, the two girls in the grandparents' rights case, Troxel v. Granville, are at the epicenter of a battle over who has "rights" to visit them. Again, the public sensibly asks, what about these girls? After the trauma of their father's suicide, is this protracted court battle serving them?

The problem lies in the system -- which attempts the impossible in trying to serve both adults' rights and children's best interests.

Rights versus interests

If children were chattel -- as they were in early legal systems -- an allocation of custodial rights would be relatively simple. Historically, they simply belonged to their dads. This made for brief custody cases. But the modern approach, which requires taking third-party interests into account, complicates the mix.

Whereas most property disputes (my-blueberry-patch-or-yours-type disputes) usually boil down to a binary balancing test (my rights versus yours), a "best interests" inquiry grafts an entirely different legal analysis onto that binary system. Instead of just weighing my right to the blueberries against yours, the court must also try to do what's best for the blueberries. Instead of a black/white analysis, the court is faced with a three-dimensional splatter of rights and speculation, mashing bright-line "rules" into speculative social-psychology.

Unless you are an oracle, hypothesizing what is in a little one's best interest is in itself almost impossible. But attempting to do so while constrained by the respective rights of two adults tears the family court in three directions -- like a mother with triplets at the supermarket.

Family court judges are not given a clear trump card either. In deciding what is in the best interests of a child, while respecting the rights of at least two squabbling adults, the court cannot privilege any of these rights or interests over the others with any guarantee that it has followed the law, or done what is best for kids.

You might be thinking the courts' ultimate mandate is to honor children's interests. Not likely. At least 98 percent of the time, it is in the best interest of the child not to be dragged through a gruesome custody case at all. But parents have rights, including the right to fight-to-the-death. And a win for a parent is not always a win for the child, because enforcement is not always pretty. As the photo of Elian's terrified face showed, it is rarely best for a child to have his parent's rights enforced by jackbooted storm troopers -- even when the "best interests of the child" urge that he be returned to his father.

Adults versus children

To make matters worse, the best source of the court's information as to what is in a child's best interests is the squabbling adults themselves. But in a fraught emotional moment, adults may not always be the protectors of their children's interests they believe themselves to be. Full of rage at ex-spouses, parents may seek sole custody even if shared custody would help their kids most. They may seek to leave the state with the child, ostensibly for "better schools," but in fact, to punish the other parent for sleeping with the au-pair.

Our legal system should not rely solely on parents (or their paid experts) to tell courts the truth about their children -- not when their own rights are also at stake. It is too much to ask that parents and extended families filter their children's genuine needs through the red fog of their "rights" and entitlements. Indeed, their children become extensions of their own identities and social roles (the "great mother" or the "sensitive dad").

In the heat of a custody dispute, even the most well-meaning adults sometimes see their children, not as fragile humans, but as blank screens on which to project their own self-images, doubts and delusions. Adults in crisis can screen veritable Sundance Festivals of movies justifying their own failings and rationalizing their bad decisions. Life with the opposing parent becomes "Scream IV." It's not intentionally cruel; it's human. And tragic.

The grandparents in Troxel seek liberal visitation with their granddaughters in part because they wish to keep their memory of their dead son -- the girls' father -- alive. The granddaughters have thus become symbols, paper dolls, a flickering film about their son. Similarly, whether you choose to blame the decimation of Elian's childhood on his uncle's mental movie about Cuba, his neighbors' mental movies about solidarity, or the attorney general's mental movies about Waco, it is clear that his life has been decimated by adults with different, self-serving views of his best interests.

The culprit? A system that allows children's futures to be decided in the context of a clash of adult agendas, rather than engaging in an authentic search for what is truly best for them. The solution? A system that genuinely privileges the child's needs over their parents' desires. We have rights to our children, yes. But we should not have the right to destroy them with the very systems we have crafted to protect them.

Dahlia Lithwick, a FindLaw contributor, covers the Supreme Court for "Slate". She is completing a novel about family law practice and its effects on lawyers and children.

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