Natural parents get custody of their children if they are fit parents. It's a pretty simple rule, and it is a basic rule of family law. But sometimes even the judges get confused on this one.
I just read the post West Virginia Mother Wins Back Legal Custody From … Babysitters in the Florida Divorce Law Blog, which described an unusual West Virginia Supreme Court case (for more, see the West Virginia Record article Supreme Court restores full custody to mother from babysitters) in which, remarkably, two trial judges and an intermediate appellate court got confused on this one, and gave custody to babysitters over the natural mother, until the West Virginia Supreme Court reversed these erroneous decisions of the lower courts. As Janet Langjahr of the Florida Divorce Blog aptly put it:
"It’s a very strange case. The kind that is hard to believe had to go up to the highest court in the state of West Virginia to get straightened out … any court at all really. It was not disputed that the mother here was fit (or at least not seriously disputed). But two West Virginia judges actually ruled that a biological mother had to share custody with distant relatives of her child, who had acted as babysitters for the child. And an intermediate level appellate court upheld those rulings. (In fact, at one point in the case, the sitters briefly had primary physical custody and the mother had visitation!) The judges found the relatives to be coparents - and therefore ordered shared parenting and rotating custody (where the child “bounces” from home to home) - before the mother could relocate to another state. On the second appeal, the Supreme Court of West Virginia reversed the courts below, ruling that the relatives had no standing to intervene in the relocation case and ordering full custody restored to the natural mother. The high court affirmed that a natural parent has the right of custody unless that parent is unfit or willfully gave up custody."
This West Virginia babysitters case reminded me of a very recent case in Massachusetts, in which a very thoughtful and well-meaning judge here was similarly reversed by the Massachusetts Court of Appeals when he created a "co-guardianship" between both the natural father, whom the judge had not found to be unfit, and the maternal aunt and uncle, in its October 29, 2007 decision in the Guardianship of Estelle (decision available at http://www.socialaw.com/slip.htm?cid=17588&sid=119), which begins:
"The biological father of the minor child, Estelle, appeals from a judgment of the Probate and Family Court granting a guardianship of the child to the child's maternal uncle and aunt, with the father appointed as coguardian. The father asserts that, given the judge's finding that he is not an unfit parent, he is entitled to outright custody of the child without the limitations inherent in the vesting of guardianship authority in others. In support of the judgment, the uncle and aunt argue that they had parented the child for seven years by the time of trial; she is happy, well adjusted and developing normally; she visits regularly with her father; and a precipitous transfer of custody would be harmful to her.We credit the judge with a sensitive attempt to sort out the complexities of the case and arrive at a compromise that was in the child's best interests. His solution, however, cannot stand as a matter of law because the father is correct that, absent a finding of unfitness on his part, the judge is without authority to require that he share parenting decisions with others...."
When natural parents are not together, that is, if they are separated or divorced, they may fight between themselves over custody, and then the issue is what is in the best interests of the children. But if there is only one natural parent available to have custody, and he or she is fighting with a non-parent, whether an aunt, uncle, grandparent, other relative, or non-relative, the question becomes: Is this natural parent fit? If so, that parent gets custody, period. Judges occasionally are confused about this basic principle of parental rights. They are so accustomed to looking at the facts of a given situation and trying to do what they think is right, because in their normal course of inquiry, in the typical kind of case they have to resolve, between two natural parents, they apply the "best interests of the child" standard, which generally allows them to place the child or children in the best of the two home environments presented to them.
As the old adage goes, tough cases make bad law. Appellate courts are supposed to prevent "tough cases" from making "bad law." These two recent cases, one from here in Massachusetts, and one from West Virginia, illustrate this very well. Appellate courts in each case had to prevent seemingly tough cases from making bad law, by reaffirming this basic principle of parental rights, which sometimes does indeed conflict with what a fact finder may find to be in the best interests of children. Parental rights sometimes trump the perceived best interests of the children, because the legal standard of parental fitness is really pretty low. If any natural parent is minimally fit, the law says he or she should win custody over a non-parent, even if the court in its fact-finding role determines that the other would-be guardian, whether a "psychological parent" or a "de facto parent" (one who may actually have truly parented the children while the minimally fit parent has been on the sidelines, and one who has in fact created a strong parental bond with the children) would be a far better caretaker of the children than the natural parent. Doesn't always seem fair or right in some situations, but that's the law. Natural parents rule. And it makes sense.
Otherwise, if we expanded the use of the "best interests of the child" standard so as to put non-parents more on an equal footing with natural parents, we would be allowing the tough cases to create "bad law" - that is, a "bad law" that would make custody contests, already an unfortunate but necessary intrusion of the state into family life, more of a free for all. Such a bad law would lead to a situation in which parental rights and authority - already greatly eroded over the years by the increasing involvement of the government and other third-parties in the lives of children and by other social developments - would be further weakened. And this kind of further weakening of parental rights is something our society and our US Supreme Court (e.g., most recently, in the Troxel v. Granville grandparent visitation case), have thus far shown they will not permit.
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