Wednesday, March 07, 2012

BIOTCh contrary to rule of law

The Best Interest Of The Child (BIOTCh) in the family court is fundamentally contrary to the rule of law, as law has been understood since Hammurabi in ancient Babylon. Plato advocated rule by a philosopher king, but his student Aristotle convincingly explained the superiority of rule of law. Western civilization is built on the idea that Aristotle was right.

All American courts are based on rule of law, except that the family court clings to the idea that a judge can act as a philosopher king and decide the best interest of a child. It cannot be done without punishing parents and others for allegations and transgressions that are not contrary to any laws, rules, regulations, or policies that are written anywhere. The idea that a judge or psychologist can read some legal briefs or interview the parties and then make objectively make child-rearing decisions is as ludicrous as Plato's idea.

The main argument against Plato's idea is that the wisdom and objectivity required is unattainable. But even if a judge of infinite wisdom could be found, there are at least two other reasons that such a judge would be unacceptable.

First, if a judge is not ruling based on written rules, then there is necessarily an arbitrariness to his decisions, and we are not free men if we live under such arbitrary rule.

Second, such judicial actions destroy incentives. Eg, even if a judge could be found to assess taxes in a way that wisely and fair redistributes the wealth, then incentives to earn money would be dampened because men could not reliably predict what they could keep.

These same considerations apply to family court. Parents do not have the freedom and authority to be parents if they can always be second-guessed by a family court judge. And court interventions create bad incentives.

Suppose this court finds that a judge an order grandparent visits if there has been a history of such visits and the judge's opinion is that the BIOTCh requires continuing such visits. Other parents may see this, and decide that allowing grandparent visits is dangerous because it exposes the family to court intervention. Thus one BIOTCh order in favor of grandparent visitation may result in other grandparents being refused visits.

The BIOTCh is the core of the problem here. If the law said that all grandparents had a right to visit their grandkids for 2 hours a week, then the arguments in this brief would not apply. The problem occurs when some judge tries to play God and apply the BIOTCh. The BIOTCh is inherently unjusticiable and contrary to legal standards.

Most states make no attempt to define the BIOTCh at all. A couple of states (I only know of Michigan and Florida) list a dozen factors to consider. But the judge has no guidance on how to evaluate or rank the factors. When it comes to a simple question like grandparent visits, the judge must rely on his gut instincts.

Many states rely on psychologists or other so-called experts for recommendations. But even the psychology profession is largely of the opinion that these recommendations are unethical. Their expertise is in treating mental disorders, and they usually have no professional competence or basis for making a decision about grandparent visits.

Our Western civilization is based on the idea that parents will have the autonomy to rear their kids as they believe is best. This principle has served us well for millennia. Maybe an exception should be made to require grandparent visits. This brief does not take a position on that. But such an exception should be carefully considered by the legislative, and be codified as predictable regulations. Requiring such an exception based on some judge's opinion of the BIOTCh is unpredictable, unworkable, and contrary to everything our justice system stands for.


Anonymous said...

The problem with putting all situations into written rules is the vast difference between every family system that exists. If a law was written saying that grandparents have a right to 2 hours, then what about those grandparents that were primarily raising the children? Or what about those that had never met the children? The same rule wouldn't apply to both sets of grandparents.

I agree that BIOTC could be better defined, but such a concept needs to exist due to the differences in family systems.

George said...

The simple solution would be to let that parents (or legal guadians) make the child-rearing decisions. That is how civilized societies have operated for millennia. There is no need for laws requiring grandparent visitation.

Anonymous said...

That is the perfect solution, until the parents (or legal guardians) can't agree. Then what?

George said...

Even if the parents are divorced and hate each other, there is still no need for a court to meddle with grandparent visitation. If the parents have joint custody, then they can each decide who does what visiting on his or her own time.

Anonymous said...

Not always. What if one of the parents quarrels with the grandparents (their own parents) and decides to cut them off, even though they are a major part of the child's life? Or what if the parent related to the grandparents wants nothing to do with the children, but the grandparents do?

Here's an example:

Dad is a great dad. Very stable and always has been very close to the children, but he has a demanding job that takes a lot of his time.

Mother is a drug addict with some major psychological problems as well, has been in and out of rehab and mental institutions. Her parents live close by and play a major role in the children's lives and see the children more than either of the parents due to father's job. Mother resents the grandparents because of her issues and feels threatened by them, but they still play a big role in the kids lives because she can't do it on her own.

This situation continues for years until the mother and father divorce.

Mother is in a bad place and is granted supervised visitation. She rarely takes advantage of it.

Father doesn't want the grandparents involved because of their relation to his ex, whom he isn't getting along with or talking with any longer. He feels they must have contributed to his ex's terrible condition and doesn't want them influencing his children any longer so he refuses to let them see the kids.

Since mom has very little time, is supervised, skips visitations, and doesn't get along with her parents, who will make sure the kids get to see the grandparents, whom they are very close with and are a major part of their lives?

George said...

So what are you suggesting? That we pass a law that empowers judges to decide who are all the good and bad influences on the child, and to order visits by the good influences?

It is easy to concoct scenarios where some parent might make a choice that is different from what you might choose. Does that justify using the court to micro-manage every parent?

Anonymous said...

The situation I propose is fictional but based on a lot of real ones I have heard/seen/read about.

I'm just saying that how can you create a true rule of law that would handle every situation? And if you can agree it is not possible, then what other option is available than using something like BIOTC?

George said...

It is real simple. The law should let the parents have the authority to make the child-rearing decisions. If the parents think that some relatives are a bad influence, so be it. That is how civilization has worked for 1000s of years.

So no, I certainly do not agree that rule of law is impossible.