Many use California Ruling to Question Parents
Tag(s): best interest • child-parent bond • courts • parental rights
The now famous California appeals court ruling has given many people the opportunity to ask a lot of offensive questions about parents and their ability to educate their children. Thomas D. Elias, a syndicated columnist certainly asked a lot of questions in his recent column.
His column starts off bad by accusing people of having a “knee-jerk” reaction to the ruling but it really runs off the tracks with this paragraph which follows quotes from the governor and other sources about the right of parents to direct their children’s education:
But pause for a moment and substitute the word “nourishment” for “education” in all this. Do parents have the right to provide as much or as little nourishment for their children as they like? If they don’t provide adequate nourishment, don’t they at some point become guilty of child abuse?
Who is claiming that, Mr. Elias? No one is saying parents have a right to abuse their children and no one is advocating that. It is insulting that you presume parents guilty in this way.
He goes on:
These questions lead to another: What about the rights of children to a quality education? Sure, many of the approximately 175,000 home-schooled California kids do get quality instruction from their parents. But what about children whose parents speak little English? What about those whose parents have less than a high school education of their own? How can they possibly be getting quality education in these circumstances?
Couldn’t all the same questions be asked about the California public schools? Why are parents the ones who are suspect but the state isn’t?
This line of thinking really goes to the heart of the question about parental rights. There are two legal doctrines at debate here:
1) Parental Rights Doctrine. This doctrine has been consistently upheld by our judiciary in numerous Supreme Court cases that reflect the American people’s longstanding commitment to parental rights. This doctrine presumes the innocence of parents and presumes that they will behave in the best interest of the child. The Supreme Court said it well in Quilloin v. Walcott,
We have little doubt that the Due Process Clause would be offended ‘if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.’
Later in Parham v. J. R. the court said,
The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.
and
The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.
and
Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.
That is just a taste of our American legal tradition in parental rights. This doctrine is built on the longstanding belief that children need their parents more than anyone else. It is widely agreed upon that generally no one can do a better job raising a child than his or her parents. With that presumption the state must prove abuse rather than the parent proving innocence.
Now for the opposing legal doctrine.
2) The Best Interest of the Child. This legal doctrine has long been used by the courts in situations where two parents are fighting for custody or decisions in regards to the children (e.g. divorce) and in situations where the parent has already been determined guilty of abuse. In these cases the court/state makes a determination on what is best for the child.
Those opposed to the parental rights doctrine would like to replace it with the best interest of the child test for even fit parents. Just as Mr. Elias presumes wrongdoing, the “best interest” approach will presume that the parent is not equipped to determine what is best for the child. Under the best interest of the child doctrine the parent has the burden of proving innocence. This approach requires that the parent prove they are doing what is in the “best interest of the child.” To some this might seem very reasonable but the problem is that in practice it doesn’t work and children are the ultimate losers.
I highly recommend the book What’s Wrong With Children’s Rights by New York University law professor Martin Guggenheim. His book really hits to the heart of the question and does well to focus on the impact these policies have on children. The well being of children is what it is all about here and why we are active in this fight.
Below is a short excerpt from What’s Wrong With Children’s Rights that shows the problem of the best interest doctrine well within the context of an actual court case.
In 1966, the Iowa Supreme Court decided a case that has become standard fare for study in many law schools. The case, Painter v. Bannister, involved a custody dispute between a father and the maternal grandparents of his seven-year-old son. The facts are relatively straightforward. Harold Painter and his wife, Jeanne, lived together with Mark, their only child, until Jeanne was killed in an automobile accident. After her death, Harold asked his parents-in-law, the Bannisters, to care for Mark while he grieved and began to put his life back in order. After a little more than a year Harold remarried. At that time, he felt ready to resume the care of Mark. However, when he asked the Bannisters to give Mark back to him, they refused and went to court to try to keep Mark.
There were no traditional grounds on which to deny Painter the custody of his son. Painter was a fit parent who obviously loved his son. To the extent it even matters, Jeanne had expressly written in her will that she wanted her husband to raise Mark in the event of her death. Finally, Iowa law clearly stated that fit parents who did not abandon their children had a superior right to their children’s custody over all others.
But the Iowa Supreme Court ruled that the controlling basis upon which the child’s custody would be decided was his best interests. The court relied on a recently developed theory of children’s rights that unless changing custody was in their best interests, children who have “bonded” with their current caregivers should not be separated from them, even to be returned to their parents.
Once the best interests test became the standard, there were no constraints on what the court was allowed to consider as relevant. Painter, it turns out, was a hippie from Berkeley, California. His unconventional lifestyle was poorly regarded by Iowa jurists. An occasional journalist, Painter never went to college. He made a modest income as an artist selling his work to tourists in Sausalito. He was also a struggling writer who hoped to publish a book someday. Among the various facts adduced at the custody trial that the Iowa Supreme Court saw fit to highlight was that Painter attended Jeanne’s funeral wearing a “sport shirt and sweater” and that he never painted the outside of his house or cut his lawn, preferring “uncut weeds and wild oats.” In contrast, the Bannisters were both college graduates. Mrs. Bannister was a librarian and Mr. Bannister was the agricultural information editor for the local university. He also served on the school board and regularly taught a Sunday school class at the local church.
The Court candidly opined that Painter would provide his son with a more intellectually interesting life. In the court’s words, “We believe it would be unstable, unconventional, arty, Bohemian, and probably intellectually stimulating.” But, on balance, considering that Mark was already living with the Bannisters, the Court unanimously concluded that Mark’s best interests would be served by remaining with them because they offered him greater “stability and security.”
This case brilliantly demonstrates what is unleashed when courts are free to decide a case based on the judge’s perception of a child’s best interests. The reasoning and outcome in Painter are presented not to establish that the case was wrongly decided. The case is described to show that one’s views of a child’s best interest are contingent upon the decisionmakers’ beliefs and values and that it is impossible to separate their views from those beliefs and values.
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Painter demonstrates that unless judges are constrained by principles, they will always be unleashing an unfettered, uncontrollable power. When we recall that the parental rights doctrine was formed in part because our constitutional scheme prohibits state officials from becoming too involved in childrearing decisions, it is especially important that judges be authorized as infrequently as necessary to decide child custody disputes based on a child’s best interests. The parental rights doctrine authorizes parents to raise their children as they deem appropriate even when others could reasonably disagree and claim the child’s best interests would be served by a different approach.
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However alluring and child-friendly the “best interests” test appears, in truth it is a formula for unleashing state power, without any meaningful reassurance of advancing children’s interests. It means substituting the state’s preference about some aspect of childrearing for the parents’. But this hardly ensures the second opinion is better than the first.
If someone is weird and different from you it is easy to judge them and their parenting decisions. It is easy for some to agree with the California court because they think homeschoolers are weird. It is easy for others to agree with the Iowa Supreme Court because they think hippies are weird. Our personal prejudices shouldn’t enter into the question of the child-parent relationship.
i think this site is a bunch of bull. there are reasons why families are split apart by the government. not just some stupid sob story gone awry. no one but the government should decide who gets to parent children who have been placed in the system. seeing as how there is a majorly bad reason on the parents part for the children to have been placed in the system anyway. so next time you see a child beaten to death by their mother and father.. you read your stupid site and tell me how those parents benefit that childs life!
Mar 21 at 7:58 am
We aren’t saying that children shouldn’t ever be removed. Parental rights are NOT absolute and shouldn’t be.
Mar 21 at 8:35 am
Once you allow one of your freedoms to be taken away, then you open the door for many others to be taken as well. Until one by one they are gone and we are no longer the land of the free.
Mar 21 at 11:40 am
The author above makes excellent points. Power corrupts. He neglects to mention also the financial incentives created when the government grants huge somes to State-run agencies with no oversight whatsoever. It’s obvious from some of the silly comments above that there is a whole generation of US citizens who never have seen fascism and government corruption or even movies such as “Mr. Deeds goes to Town” or even the original “Miracle on 43rd Street.” They can’t believe that social workers and supposedly well-intentioned psychologists that work for the State can twist facts and fabricate cases against parents and other individuals. Believe me, it happens all the time…
Mar 21 at 12:17 pm
The reason why the government takes our children away because they make money off of it they don’t care about our children they wory about staying employed its all about the money how would these children think that they only reason wants our children it because they make money off our children
Mar 22 at 1:32 pm
I don’t believe for one minute that our “government” is taking children away for money, that’s just ridiculous. Having worked in the health care industry and having worked closely with counselors and social workers I can definitely see how miscommunication is a major factor in children being unnecessarily taken from their homes. I think there are extremes to these sides (CPS vs. people like this site) and I believe that there is a middle ground that we need to develop. Only through cooperation and continued education can we do what’s best for our children.
Mar 22 at 9:15 pm
The cases cited in the original article are not fabricated. These examples and many others have happened. Most social workers and courts are doing a good job. On the other hand, if you were to lose your child, not because you were abusing him but because of some nebulous reason which caused a judge to believe the others would provide a better home, you wouldn’t care about the majority. The fundamental question in all of this is who the right person or entity to determine what is best for a child who is NOT being abused. I believe that the parents of the child are best equipped to care for that child unless they are proven to be unfit. Many people in this country have chosen to believe, like the government of Germany just before WWII, that the state has the right to raise the next generation.
I, quite politely, disagree.
Mar 23 at 3:51 pm
So, what’s next — home treatment of children when they get sick? How can parents, solely because they are parents, think that they are qualified to instruct their children (or anyone else) in academic subjects in which they may not have successfully completed college courses? Would they assay to do their own plumbing and carpentry work also, with little or no formal preparation? Ridiculous.
Mar 24 at 12:11 pm
G.E. Wood,
I’m not sure I fully understand your point. ALL parents treat their children at home when they get sick and then they make a determination about seeing a doctor for further treatment which is often a judgment call. Who immediately takes their kid to the doc for every single medical need? It would be foolish for a parent to not think for themselves and take charge of their children’s health. I’m sure doctors (as would teachers) would agree that parents need to be involved and engaged and generally the less involved the less well off the child will be.
On the education issue… If the empirical data showed that parents were successful (and generally doing better than traditional schools) would you be open minded enough to change your mind? Or are you just dead set against parents teaching their children regardless of the data?
Our policies should never be based on emotional or off the cuff assessments. If we as a society are unwilling to change in the face of hard data than what does that say about our society? As much as it might not make sense to you, if the data shows educational success than you should be willing to allow it for the sake of the children.
Seems pretty un-ridiculous to me.
Mar 24 at 12:59 pm
A parent who decides to educate his/her child at home is doing a monumental work. There is much self-sacrifice involved. One must (and easily can) find out what the child must learn to be a productive member of society and implement that in their formal education. Each child has special talents and strengths that the parent can give them the time to develop. When a child has particular weaknesses, there is so much more time in the home to work one-on-one with that child than he/she would get in a classroom of 30+ children, not to mention all the distractions the child faces in that situation. I recently spoke with a substitute teacher who took on a first grade classroom one day and was nearly driven out of her mind by the out-of-control situation she encountered…(a wonderful place for a child to grow and learn!) I have home-schooled 5 children from infancy through high school. Three of them have gone on to college. One was repeatedly on the Dean’s List. One is waiting to get into the Radiology Program. One is now married with one child, paying his bills and actively involved with his church. The last two are still in school, one is set to graduate this May. They have not had problems with sex, drugs and alcohol and have not been in trouble with the law. They are job-holding, responsible members of society. I have no regrets. I would do it again if I was in the position to do so. No one loves our children better than we do.
Mar 24 at 1:16 pm
To all who are down on homeschool, I would recommend that you read Susan Wise Bauer’s book “The Well-Trained Mind,” and also “Teaching the Trivium” by Harvey Bluedorn.
California says it is “unconstitutional” to home-educate without teaching credentials. Where in the constitution is compulsory public-school mandated? Isn’t that a socialist idea anyway?
“I am afraid that the schools will prove the very gates of hell, unless they diligently labor in explaining the Holy Scriptures and engraving them in the heart of the youth.” - Martin Luther
“It takes a family, not a village, to raise a child.” - Harvey Bluedorn
Mar 24 at 10:39 pm
WOW! This is an emotionallly charged issue! Let’s not lose our heads. We are Americans! We are blessed with a rich heritage of liberty and justice for all. I think a lot of people are getting off track. We all agree that we want to give children the best in areas of education and healthcare. We all agree that we don’t want children to be abused. But, there is one issue here and only one issue - should one person, a judge, who does not really know the child or the family have the right to determine one of the most important issues in that child’s life - whether or not that parent is taken away. That is the issue. And if the majority don’t like the parent and think their way is better - they think they can just take the parent from the child as well as the child from the parent. And they determine that one size - theirs - fits all. This is dangerous. We are a country that is still truly free. We need to keep it that way. If there is wrongdoing - separate the child and parent on that basis - not on the basis of personal opinion.
Learn how to listen to and love others.
God Bless,
Gayle Thrasher, MSW
Mar 25 at 11:11 am
I know a woman in my town who had her children taken away because she was poor. She was a single mother who put her kids in foster care after she lost her job and was put out of her apartment. She came to our church and we helped her get back on her feet. But when she had a new job, bought a used car and saved enough to pay rent on a mosdest apartment and she applied to get her kids back, the judge decided that the foster family (who were well-off and lived in a nice neighborhood) was a more stable environment. CPS actually argued that because the kids sad and emotional whenever they came back from visiting their mother, it was “in their best interests” to keep them away from her! After a year in foster care, the mother’s parental rights were terminated - based on the fact that the kids were “emotionally scarred by the events” and the foster family was “better equiped” to handle their emotional and physical needs. The foster family adopted the three kids and moved to another state.
It is the most horrible thing I have ever witnessed in my life.
Mar 28 at 8:51 am
I had all 6 of my children @ home under water in a birthing tub. I start teaching them to read right after they are potty trained. By 4 years of age they are reading all the classics. My oldest is currently working at a 6th grade level.
My mother- in -law was a master herbologist & our first resource for illness followed by my mid-wife. We have much literature at home as well as a family herbal medicine kit . I’ve handled EVERYTHING from acne to heart attacks!
My late husband was a master of ALL trades. He worked over the course of our marriage as a mechanic , (on cars, boats & military vehicles ) He worked in the computer field at intel & after his 1st year there was placed as a manager over the area he was working in.
He worked as a wedding photographer , & became a general contracter. He had no formal education or experience in any of these fields but was successful in ALL of them. After a rough year starting out working long hours doing the carpentry , by the end of the 2nd year he was doing high end work , doing railings & fireplace mantels & build-ins.
In all these areas of emloyment he read some material & took a test , then went to work. Our home was a bank repo with alot of work that needed to be done. He did it all himself including remodeling the bathroom & YES doing the plumbing , He rewired a lot of the wiring in our home & put in ceiling lights & ceiling fans. What do you think home depot is for ? Yes , you can!!!!!
He installed our garbage desposal , put a fence around our yard , the list goes on & on ……..
It used to be the norm , not that long ago for people to live on farms & do EVERYTHING for themselves. Today people shut their brains off & think they need a specialist for anything & don’t listen to their own common sense if the person they are speaking with happens to have a certificate on their wall.
The condition of the public school system today is unquestionably deplorable & it’s not that difficult to do better. Hospitals make LOTS of hideous errors as well. And there is more than one way to handle most situations . People should be free to choose their own methods , that’s what this country is all about. One persons opinion should not dictate the lives of others, or place us all in a box.
I had a discussion with a school board member in a state we once lived in. His opinion was that parents simply weren’t capable of teaching grammar ( Now this was a blanket statement regardless of the background of the parent ) I responded that if that were true then that meant that the public school that the parent went to had failed in instructing THEM sufficiently in gramm ar , and they should DEFINATELY teach them themselves & both learn together. Rather than have the public school system fail their child too , as it had already failed them.
Think for yourselves!! Be free!!!
Apr 16 at 12:59 pm
Private schools in my area hire mostly uncredentialed teachers. They charge high yearly fees for smaller class sizes. Why is this OK but not uncredentialed parents teaching at home?
Apr 16 at 1:06 pm
My son attended a private Christian school for a brief period of time. They hired uncredentialed teachers…the last one had a degree in engineering from the Phillipines, had never taught before, and had never heard of ADHD, or his recently diagnosed Tourettes syndrome. He came home daily mispronouncing vocabulary words, and telling me he was AGAIN punished for his neurological tics. I picked him up from school with a black eye, and the teacher informed me she didn’t blame the kid for tripping him face first into a wall! Because we “are all tired of his shoes being untied” .That was his LAST year in private Christian school…we homeschooled him until high school, never looked back…
Apr 25 at 9:00 am
BTW…be is now an AP honors public high school senior, trying to make a decision between elementary education, or political science! (lest anyone think homeschool did not prepare him sufficiantly for the “outside world”)
Apr 25 at 9:07 am
[…] arguments of greater government intrusion in families is that we can’t trust parents (e.g. the debate over homeschooling in California). Never said but always implicit in those arguments is that government can always be trusted with […]
Apr 28 at 10:13 am
my oldest child is thirty, is he qualified to teach at a university? is he schooled to become an attorney? did he graduate with “honors”? did his parents have a bacalarette degree? did he suffer socially? is he capable of learning on his own? can he hold down a job?does he intend to marry? will he drive a train?will he fly a plane?is he in jail? does he go to get hiv shots? You see the list could go on and on but anyones son could give an answer to these questions without ever mentioning “homeschooling”! Let the people who want to be involved with their childrens education DO IT! This is America the country with so many resources it is unbelievable to those in other countries. One could go to the local library and check out just about any legal lesson for any legal purpose. We all can not teach in public schools or all of us cannot be doctors and lawyers ;some people have drive a taxi or wait on a table or serve as a hostess. any of our people can locate a testing service for evaluating our children if thats all this is about. Let the children learn in a great environment Home!.
Thomas edison,a great student? bah! just a great inventor?,Religion, abuse? bah! it is what founded this country in the first place. have you people forgotten your “laurals” We fought to be a free country and the homescooled communities will fight too!
how could that be abusive? oh yes,by-the-way, my thirty year old, he is a great musician! he has probably edited some of the music you have listened to on your way to a family reunion!
May 6 at 9:02 pm