Wednesday, June 26, 2013
Children, parents, families & tribes
I am inclined that it says something -- and not something good -- about the state of things that on what appears to be the last day of the Supreme Court's 2012 Term -- in which the Justices decided dozens of cases, most of which presented technical legal questions and most of which by 9-0, 8-1, or 7-2 votes -- the whole world is watching to see whether or not the Justices will announce -- whether Justice Kennedy will announce? -- a definitive answer to the question whether states must include same-sex unions in their legal definitions of "marriage."
In any event, yesterday, in another "family law" case, the Court issued a ruling involving the Indian Child Welfare Act captioned (not very helpfully) "Adoptive Coule v. Baby Girl." For more on the case, go here. The case involves what I think are really difficult, even painful questions. I'm not sure how they should be answered. (Remember the Elian Gonzalez drama?) Here is a bit, from the end of Justice Scalia's dissent:
While I am at it, I will add one thought. The Court’sopinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring achild into the world to raise that child. We do not inquirewhether leaving a child with his parents is "in the best interest of the child." It sometimes is not; he would be
better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.Of course, there might be a reason in "policy" to "dilute" that protection, namely, that the chilld spent the first several years of her life with her parents and family. And, so, the case is hard. Thoughts?
https://mirrorofjustice.blogs.com/mirrorofjustice/2013/06/children-parents-families-tribes.html
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To start, I think the case was correctly decided based on the court's reasoning. To answer your question: yes, this is a difficult case. But state family law courts have already done the hard work of wrestling with these issues, and have made the judgment in favor of "diluting" the rights of the boyfriend father if the boyfriend never had custody, he gives up his rights to the mother, and the mother decides to let another couple adopt the baby. That's the determination of South Carolina family law for what is in the best interests of the child, and it seems like a sensible result to me. Now that's the result that would occur for any other child in circumstances similar to the Supreme Court case. The only difference in the Supreme Court case from every other child case is that the boyfriend has a few drops of Cherokee blood, and thus the boyfriend argues that his Cherokee blood gives him rights that trump the rights of the child. I think that kind of racialist reasoning that would trump a normal determination of what is in the best interests of the child is unseeemly.
The argument of the boyfriend and J. Scalia's comments seem to come from the position where a parent's right to a child is elevated over the rights of the child himself. Generally, I disagree with such a position, as I see it implicit in our culture of divorce, IVF, abortion, surrogacy, gay couples claiming a right to children, etc., instances where an adult's personal wants and desires take precedence over what is in the true best interests of a child. (At the same time, I recognize that in our society with greater government oversight and control, I'm cautious of the government having the power to declare--sometimes incorrectly--what is in the best interests of a child and to break up a family because it disagrees with the parent, and so I wonder whether the parent's right to a child is an important safeguard.)