The Court's Contempt
The latest estimates indicate over 415,000 children are in the foster care system across the United States.  It can take several years for those children to “exit” the system, most likely to be reunified with his or her parents.  While these children await reunification with their parents or for a “forever home,” American courts are spending months, years and finite resources reengineering families based on what they perceive to be in society’s interest. This is all being done irrespective of what the law prescribes because courts are exercising their “equity” powers to deal with what they describe as “increasingly varied familial relationships” when parties play to their emotions.

On August 30, 2016, the state of New York’s highest court examined two cases (I​n the Matter of Brook S.B and In the Matter of Estrellita A.​) involving children being raised by their natural mothers.  Both cases involved healthy and thriving children in that there were no allegations that the mothers abused, neglected or abandoned those children. Nevertheless, in both cases, guardians were appointed to represent the children’s “best interests.”

In one case, the natural mother and former partner registered as domestic partners before the birth of the child.  Then, post break up, the natural mother sued her former partner for child support claiming the former partner was a parent.  The court agreed so when the former partner counter sued for custody and visitation, the natural mother asserted that, under the laws of New York governing custody and visitation, the former partner could not be considered a “parent.”  This position of “I want my cake and to eat it too,” implicitly incensed the court so they found, as a matter of law, the natural mother could not take inconsistent positions. In other words, “mom, you wanted child support, you got it, so the person who is obligated to pay that child support gets visitation and/or custody over the child for which she is paying child support.” 

In the other case, it was undisputed that although the parties announced their “engagement,” the parties never took the symbolic or legal step of formalizing their relationship by going to another state to marry or having a symbolic marriage ceremony. However, the natural mother did give the child the former partner’s last name at birth and returned to work while the former partner stayed home to care for the child for a year. 

While most reasonable people would agree that the court got it “right” in these cases based on the objective actions taken by the mothers, it’s a red herring or something meant to distract from the real issue. The real issue is this, now, throughout the state of New York, because the court refused to articulate any real limits, like, for example, marriage, family courts have been given the sweeping power to determine whether a person a parent dated, gay or straight, pre-conception or maybe post-conception, is a parent.  Previously, state legislatures had established specific laws defining who is a parent, but cases like this New York case, are extending the definition to “any person in a parental role.” Of course, the impact of this is massive because the definition of “parent,” under the law, has now changed and not by legislative action.

From now on, whenever a court has a set of circumstances that tugs at its heart strings, that court can reengineer a child’s core family simply because that judge doesn’t think the parent made the right decision. In both of these cases, the mothers had been allowing the former partners to see the children, but something changed and the mothers stopped the visitation. Isn’t it a basic human right that parents get to decide what is best for their children? Why don’t mothers and fathers across New York and other states with similar judicially-declared laws have the right to decide what relationships are best for their children?

Abdicating our parental power to the American courts is something that everyone needs to be deeply concerned about. This is because American courts are, by design, narrowly focused on the facts of the case before them and not the widespread effect. The New York high court admitted the same,  “because we necessarily decide these cases based on the facts presented to us, it would be premature for us to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement." The court then left it up to the lower courts as follows:  “the ultimate determination of whether those rights shall be granted rests in the sound discretion of the [lower] court, which will determine the best interests of the child.”  

American legislative bodies, on the other hand, are designed to make law on a broader scale, but American legislatures, in recent years, have been particularly weak in doing their job, so the judiciary has filled that void. The social, political and moral implications of American judges reengineering families based on their whim, because no real objective limits or tests exist, are vast.  While the temptation is to “trust” judges to do the right thing because they’re supposed to be fair and impartial in upholding the law, Bully is the story of just how dire and even fatal such a mindset can be.