212 H Court and the Legal System—Family Forensics
Literature Review
In some states, family law clearly does not focus on the child's best interest when it
comes to custody disputes between biological family arid the custodial, psycholog-
ical parent. Wynne (1997) indicates that the case of Baby Jessica illustrates "that as
a nation. Americans do not think enough of their children to consider their rights
or interests, or to discuss even if they have rights or interests" (p. 187). In fact, most
states make a primary effort to give biological parents custody of the child as long as
there is no evidence of parental unfitness (Oppenheim & Bussiere, 1996). Even in
states where the child's best interest standard is applied, there are different statutory
orders of preference for the placement of the child. These preferences do not always
take into consideration the child's emotional rights. For example, in California, the
child is placed with a relative unless the court determines that such placement is
not in the child's best interest. However, the law does not necessarily specify what
the best interests are. Although some states do provide factors which should be
considered in the best interest determination, much discretion is left to the judge
(Oppenheim & Bussiere, 1996). As a result, the child's emotional well-being is not
necessarily considered.
Bracco's (1997) examination of Canada's Best Interest test illustrates the court's
difficulty in determining the best interest of the child. Bracco explains that the test
is a change in mentality from "every parent has the right to a child" to "every child
has the right to a family". However, Bracco explains the difficulty with assessing
the best interest; she poses the question of \vhether it is truly in the best interest of
the child to keep adoptions in secrecy. In Canada, there is to be no contact between
the adopted child and his or her biological parents.
The issue of children's emotional rights and family law is complex because laws
differ from state to state (Oppenheim & Bussiere, 1996). However, most researchers
agree that family law does not adequately acknowledge children's emotional rights
(Bracco, 1997; Oppenheim & Bussiere, 1996; Shapiro, 1993; Wynne, 1997). There
tends to be a bias toward biological parents in determining custody between biolog-
ical parents and a third party (Shapiro, 1993; Wynne, 1997). This bias was evident
in the Baby Jessica case. Wynne (1997) argues that the courts need to recognize and
support a child's need for a "stable relationship with his or her psychological parent"
(p. 189). In addition, Wynne asserts that in order for family reunification attempts
to work, the courts need to reassert what they consider real family relationships.
According to Wynne, the family reunification policy using a biological definition
of family has resulted in abuse, neglect, and even the deaths of many children. Per-
haps Wynne's argument can be best illustrated by the statement of Kimberly Mays,
a 14-year-old girl who was switched at birth and whose biological parents sought
custody. At a news conference, she stated "Biology doesn't make a family" (Shapiro,
1993, p. 13). Mays clearly identified her "psychological" father as her family and
wanted to divorce her biological parents.