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Child Custody Unhinged

A New York State Supreme Court justice recently granted [1] three adults shared custody of a 10-year-old boy.  A brief summary of the family structure is needed: the biological father and his wife seemingly had an ongoing romantic relationship with a female neighbor, who conceived and bore the child; the married couple later divorced, and the two women now live together.  The legal rationale [2] given for the ruling focuses on precedents in the Marriage Equality Act which legalized same-sex marriage in New York, and in another ruling (Brooke S.B. v. Elizabeth A.C.C.) which expanded the definition of “parenthood” so that a “nonmarried, ex-partner of a biological parent may seek custody or visitation rights of children.”  While the ruling may have legal justification (in the judges words “Tri-custody is the logical evolution” of these prior rulings), what is less clear is the veracity of the judge’s assertion that the boy’s father’s opposition to his ex-wife’s [not the boy’s biological mother] claim for custody was “unconscionable.”

The Child’s Best Interest

Commentators on both sides of the case are claiming that their perspective is what is in the child’s best interest, which is undoubtedly a key factor in any discernment about complicated family situations – this 10-year-old did not ask to be born into conflict and confusion, and should not suffer for it any more than will naturally occur.  The judge and those who agree with him are focused on the boy’s attachment to both of these women – particularly a concern regarding his ability to be allowed a continuing relationship with the ex-wife.  The boy’s father, and those who support the alternative perspective, worry that the meaning of “parents” is being threatened, and that, in the long run, having three adults, unrelated amongst themselves—and with changing and questionable commitments—named as parents will be harmful rather than helpful to the young lad.

In considering the best interests of the child, the developmental level of the child must always be taken into consideration.  There is a long history of courts struggling with how much weight, if any, to give to the testimony of a child regarding his or her preferences in custody arrangements.  Many judges refuse to solicit [3] comments, not wanting to place the child in the traumatic situation of cross-examination, nor even have the child be placed in the situation of perceived power [and complicity] in the case’s outcome.  In this case, the judge apparently gives strong value to the interview in chambers with the 10-year-old boy who reportedly “considers both women equal mommies … and enjoys his present living situation.”  One can only hope that the father is mature enough to not hold this against his son.  Presuming that both women are reasonably attentive and nurturing, it is not surprising that having additional attention and support at this age would be a bonus.  Fast forward five years and the experience could be quite different, not just in terms of the adolescent male’s need for boundaries and individuation, but also the social consequences of being in a “contemporary family.”  The assault on the traditional family [4] has consistently involved efforts to introduce the creation of ever-new options and alternatives in pursuit of some form of fulfillment of the natural needs for attachment and intimacy.

The problem comes when this pursuit fails to take into account the true nature of the human person and the family.  Trust and commitment are the hallmarks of healthy family life.  Without them, surviving the struggles also inherent in families would not be possible.  In this case [2], infidelity was introduced into a family, seemingly consensually, and the chaos that ensued is predictable.  In the judges words “No one told these three people to create this unique relationship.  Nor did anyone tell defendant to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother.”  The best interests of the child must include fostering a family situation in which trust and commitment are demonstrated consistently and lovingly.

Of course, all families marked by divorce face struggles.  Yet, there is an ordering as to how blended step-families can identify who is important in a child’s life and what his or her corresponding role and connection will be.  Only with such ordering (and presuming the new marriage is a solid commitment) will the stability all children need be assured.

Therefore, the challenges presented by the “contemporary forms of the family” must be fought, and the traditional family defended —biological, blended, or adoptive—which is, in the end, the only “family” worthy of the name.