This week, The Imprint published an editorial, Best Interests Standard is a Judicial False Idol, by Vivek Sankaran, Professor and director of the Child Advocacy Law Clinic and Child Welfare Appellate Clinic at the University of Michigan. Sankaran’s essay focused on the use of “the best interests of the child” by judges, specifically addressing concerns that this term is used subjectively. Reflecting on his observation of the oral argument in the Brackeen v. Haaland case for the U.S. Supreme Court, Vivek writes,
“One observing the argument might conclude that the best interests standard referenced by the justices was some sort of bulletproof scientific formula, where data is fed into the minds of judges, who then miraculously discerned the one absolute outcome that is truly best for a child. Stripping judges of the ability to use this objective formula, then, would deprive children from achieving the one and only trajectory in their life that would serve their well-being. No system that cares about children would inflict this type of harm on them. As I listened to how the justices referred to this “standard,” I sat in disbelief as to how little they understood about how it is applied in practice. I would argue that the phrase “best interests of the child” is not a standard at all, but simply unfettered discretion disguised as a legal principle. This phrase simply allows a juvenile court judge to do whatever they please without constraint. It allows them to govern their fiefdom in whatever manner they chose, with little to no appellate oversight.”
In the essay, Sankaran notes there is no universal agreement about what “best interests of the child” means and in absence of such a universal definition, those with power pretty much get to make decsions. Sankaran focuses on judges, but in child welfare cases those who argue for the “best interests of the child” can be can also include child welfare workers, therapists, foster parents, Guardian ad-litems/Court Appointed Special Advocates, and attorneys. I’ve written and mentioned this before, specifically in terms of transracial adoption because for children of color in the U.S. foster care system, laws largely prohibit their racial and cultural identity and needs as being in their best interests (thank you MEPA/IEPA). What children and their parents argue is in the child’s best interests is often brushed aside, especially when they are seen as not capable.
Contested adoptions often revolve around competing definitions of “best interests.” Foster families who want to adopt might argue that keeping the psychological bond between them and the child is in the best interest – ironic, since the psychological bond between the child and their parents of origin severed by the state was also considered in the child’s best interest. The argument for psychological bonding is a red herring; the use of “best interest” when it comes to placement is about which set of parents have more power and resources, not who has a psychological bond with a child. The slippery meaning of “best interests” results in uneven support for children in care and places families at the mercy of biased and discriminatory child welfare professionals. As long as the undefined “best interests” criteria continues to be used in child welfare cases, we will continue to see disparate outcomes for communities of color and folks with barriers to resources.
Sankaran writes that it is time “to rewrite child protection statutes and reject the falsity that the best interests of the child is an actual legal standard.” I wholeheartedly agree.
Communities are crucial for our well-being and the research community is no different. I value the work that adoptee researchers have been doing – largely unrecognized until the past decade – and I am grateful for those adoptees who have mentored and supported me. One of those adoptee researchers is Dr. Amanda Baden and she recently clued me into the adoption documents in the Library of Congress archives. I’m posting one of the topics I’ve bookmarked: the Adoption search. You could add more topics (i.e. China, Russia) if you wanted.
- Khatia Shamanauri investigates the cases of children abducted and placed for adoption in Georgia (Europe, not in US) for The Telegraph. The article is available here.
- The Adoptees Disrupting Adoption Narratives Series on Prism includes articles featuring six different adoptees and their thoughts about adoption (see image below).
- I’m just learned about this film, Return to Seoul. The filmmaker is not an adoptee. I came across this article about it and then watched the trailer. There are some similarities from what I can see to The Return, a film by an adoptee, Malene Choi, from 2018. That trailer is here. The trailer for Return to Seoul is below.
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A new photography book by Chinese adoptee artist Youqine Lefèvre. Lefèvre is a Chinese adoptee adopted to Belgium and her book The Land of Promises documents six Belgian families who adopted Chinese girls in 1994.
This is amazing and wonderful content. Thank you so much!