Beyond the Best Interests of the Child




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Beyond the Best Interests of the Child

Joseph Goldstein, Anna Freud & Albert J. Solnit, 1973



Excerpts

“The child is singled out by law, as by custom, for special attention…


“Child placement laws are society’s response to the “success” or “failure” of a family in providing its children with an environment which adequately serves their needs. The degree of state intervention on the private ordering of the parent-child relationship ranges from a minimum – automatic assignment of a child by birth certificate to his biological parents – to a maximum – court ordered removal of a child from his custodians because he is found to be “neglected” or “delinquent” or they are found “unfit” to be parents. The traditional goal of such interventions is to serve “the best interest of the child.” In giving meaning to this goal, decisionmakers in law have recognized the necessity of protecting a child’s physical well-being as a guide to placement. But they have been slow to understand and to acknowledge the necessity of safeguarding a child’s psychological well-being. Wile they make the interests of a child paramount over all other claims when his physical well-being is in jeopardy, they subordinate, often intentionally, his psychological well-being to, for example, an adult’s right to assert a biological tie. Yet both well-beings are equally important, and any sharp distinction between them is artificial.*
Footnote: “*…The artificial distinction between physical and psychological well-being is a relic of the past in which adults viewed children more as chattel than as persons in their own right.” Id. at 3-4, citation in original omitted.
“Unlike adults, whose psychic functioning proceeds on more or less fixed lines, children change constantly, from one state of growth to another. They change with regard to their understanding of events, their tolerance for frustration, and their needs for and demands on motherly and fatherly care for support, stimulation, guidance, and restraint. These demands vary as the child matures and begins to need independence, i.e., gradual freedom from control. Since none of the child’s needs remains stable, what serves his developmental interests on one level may be detrimental to his progression on another.
“Unlike adults, who measure the passing of time by clock and calendar, children have their own built-in time sense, based on the urgency of their instinctual and emotional needs. This results in their marked intolerance for postponement of gratification or frustration, and an intense sensitivity to the length of separations.
“Unlike adults, who are generally able to see occurrences in a relatively realistic perspective, young children experience events in an egocentric manner, i.e., as happening solely with reference to their own persons. Thus, they may experience, for example, the mere move from one house or location to another as a grievous loss, imposed on them; the birth of a sibling as an act of parental hostility; the emotional preoccupation or illness of a parent as rejection; the death of a parent as intentional abandonment.
“Unlike adults, who are generally better able to deal with the vagaries of life via reason and intellect, children are governed in much of their functioning by the irrational parts of their minds, i.e., their primitive wishes and impulses. Consequently, they respond to any threat to their emotional security with fantastic anxieties, denial, or distortion of reality, reversal or displacement of feelings – reactions which are no help for coping, but rather put them at the mercy of events.
“Unlike adults, who are generally capable of maintaining positive emotional ties with a number of different individuals, unrelated or even hostile to each other, children lack the capacity to do so. They will freely love more than one adult only if the individuals in question feel positively to one another. Failing this, children become prey to severe and crippling loyalty conflicts.
“Unlike adults, children have no psychological concept of relationship by blood-tie until quite late in their development. For the biological parents, the facts of having engendered, borne, or given birth to a child produce an understandable sense of preparedness for proprietorship and possessiveness. These considerations carry no weight with children who are emotionally unaware of the events leading to their births. What registers in their minds are the day-to-day interchanges with the adults who take care of them and who, on the strength of these, become the parent figures to whom they are attached.
“Children are not adults in miniature.” Id. at 11-13., footnotes in original omitted.

“THE PSYCHOLOGICAL PARENT-CHILD RELATIONSHIP


The child’s psychological tie to a parent figure is not the simple, uncomplicated relationship which it may appear to be at first glance. While it is rooted inevitably in the infant’s inability to ensure his own survival, it varies according to the manner in which protection is given and the physical needs fulfilled. Where this is done impersonally and with routine regularity, as in institutions, the infant may remain involved with his own body and not take an alert interest in his surroundings. Where the adult in charge of the child is personally and emotionally involved, a psychological interplay between adult and child will be superimposed on the events of bodily care. Then the child’s libidinal interest will be drawn for the first time to the human object in the outside world.
Such primitive and tenuous first attachments form the base from which any further relationships develop. What the child brings to them next are no longer only his needs for body comfort and gratification but his emotional demands for affection, companionship, and stimulating intimacy. Where these are answered reliably and regularly, the child-parent relationship becomes firm, with immensely productive effects on the child’s intellectual and social development. Where parental care is inadequate, this may be matched by deficits in the child’s mental growth. Where there are changes of parent figure or other hurtful interruptions, the child’s vulnerability and the fragility of the relationship become evident. The child regresses along the whole line of his affections, skills, achievements, and social adaptation. It is only with the advance toward maturity that the emotional ties of the young will outgrow this vulnerability. The first relief in this respect is the formation of internal mental images of the parents which remain available even if the parents are absent. The next step is due to identification with parental attitudes. Once these have become the child’s own, they ensure stability within his inner structure.
As the prototype of true human relationship, the psychological child-parent relationship is not wholly positive but has its admixture of negative elements. Both partners bring to it the combination of loving and hostile feelings that characterize the emotional life of all human beings, whether mature or immature. The balance between positive and negative feelings fluctuates during the years. For children, this culminates in the inevitable and potentially constructive struggle with their parents during adolescence.
Whether an adult becomes the psychological parent of a child is based thus on day-to-day interaction, companionship, and shared experiences. The role can be fulfilled either by a biological parent or by an adoptive parent or by any other caring adult—but never by an absent, inactive adult, whatever his biological or legal relationship to the child may be.
The best qualities in an adult’s personality give no assurance in themselves for a sound result if, for any reason, the necessary psychological tie is absent. Children may also be deeply attached to parents with impoverished or unstable personalities and may progress emotionally within this relationship on the basis of mutual attachment. Where the tie is to adults who are “unfit” as parents, unbroken closeness to them, and especially identification with them, may cease to be a benefit and become a threat. In extreme cases this necessitates state interference. Nevertheless, so far as the child’s emotions are concerned, interference with the tie, whether to a “fit” or “unfit” psychological parent, is extremely painful.” Id at 17-20, capitals in original.

“We propose three component guidelines for decision-makers concerned with determining the placement and the process of placement of a child in a family or alternative setting. These guidelines rest on the belief that children whose placement becomes the subject of controversy should be provided with an opportunity to be placed with adults who are or are likely to become their psychological parents.


“PLACEMENT DECISIONS SHOULD SAFEGUARD THE CHILD’S NEED FOR CONTINUITY OF RELATIONSHIPS.
“Continuity of relationships, surroundings, and environmental influence are essential for a child’s normal development. Since they do not play the same role in later life, their importance is often underrated by the adult world.

“Change of the caretaking individual for infants and toddlers further affects the course of their emotional development. Their attachments, at these ages, are as thoroughly upset by separations as they are effectively promoted by the constant, uninterrupted presence and attention of a familiar adult. When infants and young children find themselves abandoned by the parent, they not only suffer separation distress and anxiety but also setbacks in the quality of their next attachments, which will be less trustful. Where continuity of such relationships is interrupted more than once, as happens due to multiple placements in the early years, the children’s emotional attachments become increasingly shallow and indiscriminate. They tend to grow up as persons who lack warmth in the contacts with fellow beings.
“For young children under the age of 5 years, every disruption of continuity also affects those achievements which are rooted and develop in the intimate interchange with a stable parent figure, who is in the process of becoming the psychological parent. The more recently the achievement has been acquired, the easier it is for the child to lose it. Examples of this are cleanliness and speech. After separation from the familiar mother, young children are known to have breakdowns in toilet training and to lose or lessen their ability to communicate verbally.
“For school age children, the breaks in their relationships with their psychological parents affect above all those achievements which are based on identification with the parents demands, prohibitions, and social ideals. Such identifications develop only where attachments are stable and tend to be abandoned by the child if he feels abandoned by the adults in question. Thus, where children are made to wander from one environment to another, they may cease to identify with any set of substitute parents. Resentment toward adults who have disappointed them in the past makes them adopt the attitude of not caring for anybody; or of making the new parent the scapegoat of the former one. In any case, multiple placement at these ages puts many children beyond the reach of educational influence, and becomes the direct cause of the behavior which the schools experience as disrupting and the courts label as dissocial, delinquent, or even criminal.”

“Thus, continuity is a guideline because emotional attachments are tenuous and vulnerable in early life and need stability of external attachments for their development.” Id. at 31-34, italics in original, citations in original omitted.

“PLACEMENT DECISIONS SHOULD REFLECT THE CHILD’S, NOT THE ADULT’S, SENSE OF TIME.



“Unlike adults, who have learned to anticipate the future and thus to manage delay, children have a built-in time sense based on the urgency of their instinctual and emotional needs.

“Emotionally and intellectually an infant and toddler cannot stretch his waiting more than a few days without feeling overwhelmed by the absence of parents. He cannot take care of himself physically, and his emotional and intellectual memory is not sufficiently matured to enable him to use thinking to hold on to the parent he had lost. During such an absence for the child under two years of age, the new adult who cares of the child’s physical needs is latched onto “quickly” as the potential psychological parent. The replacement, however ideal, may not be able to heal completely, without emotional scarring, the injury sustained by the loss.
“For most children under the age of five years, an absence of parents for more than two months is equally beyond comprehension. For the younger school-age child, an absence of six months or more may be similarly experienced. More than one year of being without parents and without evidence that there are parental concerns and expectations is not likely to be understood by the older school-aged child and will carry with it the detrimental implications of the breaches in continuity we have already described.” Id at 40-41, capitals in original, citations and footnotes in original omitted.

“CHILD PLACEMENT DECISIONS MUST TAKE INTO ACCOUNT THE LAW’S INCAPACITY TO SUPERVISE INTERPERSONAL RELATIONSHIPS AND THE LIMITS OF KNOWLEDGE TO MAKE LONG-RANGE PREDICTIONS.


“Though obvious once said, when left unsaid, the limitations of the law often go unacknowledged in discussions about child placement. Too frequently there is attributed to law and its agents a magical power – a power to do what is far beyond its means. While the law may claim to establish relationships, it can in fact do little more than give them recognition and provide an opportunity for them to develop. The law, so far as specific individual relationships are concerned, is a relatively crude instrument. It may be able to destroy human relationships; but it does not have the power to compel them to develop.” Id. at 49-50, capitals in original, citations in original omitted.

“PLACEMENTS SHOULD PROVIDE THE LEAST DETRIMENTAL AVAILABLE ALTERNATIVE FOR SAFEGUARDING THE CHILD’S GROWTH AND DEVELOPMENT


“As an overall guideline for child placement we propose, instead of the “in-the-best-interests-of-the-child” standard, “the least detrimental available alternative for safeguarding the child’s growth and development.” The new standard has as its major components the three guidelines which we have already described. The least detrimental alternative, then is that specific placement and procedure for placement which maximizes, in accord with the child’s sense of time and on the basis of short-term predictions given the limitations of knowledge, his or her opportunity for being wanted and for maintaining on a continuous basis a relationship with at least one adult who is or will become his psychological parent.
“Even though we agree with the manifest purpose of the “in-the-best-interests-of-the-child” standard, we adopt a new guideline for several reasons. First, the traditional standard does not, as does the phrase “least detrimental,” convey to the decisionmaker that the child in question is already a victim of his environmental circumstances, that he is greatly at risk, and that speedy action is necessary to avoid further harm being done to his chances of healthy psychological development. Secondly, the old guideline, in context and as construed by legislature, administrative agency, and court, has come to mean something less than what is in the child’s best interests. The child’s interests are often balanced against and frequently made subordinate to adult interests and rights. Moreover, and less forthrightly, many decisions are “in-name-only” for the best interests of the specific child who is being placed. They are fashioned primarily to meet the needs and wishes of competing adult claimants or to protect the general policies of a child care or other administrative agency. But, even if the child’s rights were, in fact and policy, determinative and thus unequivocally superior to adult interests, the guideline would remain inadequate.” Id. at 53, capitals in original, citations in original omitted.

WHY SHOULD THE CHILD’S INTERESTS BE PARAMOUNT?


“Some will assert that the views presented in this volume are so child-oriented as to neglect the needs and rights of the adults. In fact, this is not the case. There is nothing one-sided about our position, that the child’s interests should be the paramount consideration once, but not before, a child’s placement becomes the subject of official controversy. Its other side is that the law, to accord with the continuity guideline, must safeguard the rights of any adults, serving as parents, to raise their children as they see fit, free of intervention by the state, and free of law-aided and law-abetted harassment by disappointed adult claimants. To say that a child’s ongoing relationship with a specific adult, the psychological parent, must not be interrupted, is also to say that this adult’s rights are protected against intrusion by the state on behalf of other adults.
“As set out in this volume, then, a child’s placement should rest entirely on consideration for the child’s own inner situation and developmental needs. Simple as this rule sounds, there are circumstances which make it difficult to apply even with ample evidence in support of the child’s interests. The injunction disregards that laws are made by adults for the protection of adult rights.” Id. at 105-106, italic capitals in original.

Scholarly citation format:

Goldstein, J., Freud, A., & Solnit, A. J. (1973), Beyond the Best Interests of the Child, New York: The Free Press.
ISBN: 0029123003

0029122902 (paperback)

Dewey Class No.: 362.7
Legal citation format:

Joseph Goldstein, Anna Freud & Albert J. Solnit, Beyond the Best Interests of the Child 3-106 (1973)

Washington State Court decisions which have cited Beyond the Best Interests as authoritative (partial list):
In RE PARENTAGE OF L.B. 155 Wn.2d 679, 691 (2005)

DEPENDENCY OF J.B.S., 123 Wn.2d 1 (1993)

In re DEPENDENCY OF J.H., 117 Wn.2d 460, 469, 815 P.2d 1380 (1991)

CUSTODY OF STELL, 56 Wn. App. 356, 783 P.2d 615 (1989)

IN RE INFANT CHILD PERRY 31 Wn. App. 268, 641 P.2d 178 (1982)

MARRIAGE OF ALLEN, 28 Wn. App. 637, 648, 626 P.2d 16 (1981)

IN RE ASCHAUER, 93 Wn.2d 689, 697 n.5, 611 P.2d 1245 (1980)

IN RE HALL, 99 Wn.2d 842, 664 P.2d 1245 (1983)

RE MARRIAGE OF DUNKLEY, 89 Wn.2d 777, 575 P.2d 1071 (1978)

IN RE SAGE, 21 Wn. App. 803, 586 P.2d 1201 (1978)


The distinguished authors Joseph Goldstein, Yale Law School, Yale University, Anna Freud, Hampstead Child-Therapy Clinic, and Albert J. Solnit, Child Study Center, Yale University, brought together the perspectives of law and psychotherapy.


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