Friday, March 17, 2006

The Fallacy Of The "Best Interest Of The Child Rule"

A recent lawsuit by The National Center For Men has been making the rounds of the blogosphere over the past few days. Heralded here as Roe v. Wade for men, the suit is really about what happens when a woman lies about her ability to get pregnant and then gets pregnant and then sticks the father with 18-22 years of child support.

Since I have been practicing law, the prevailing position has been that paying child support is in the "best interest of the child" and that the issue of fairness to the father is unimportant. Indeed NY Courts declared that men had no rights in this area in a famous case involving former hero detective Frank Serpico.
In fact the law in this area remains very unfair.

As Ms. Young points out, there is still a prevailing position that only men have the responsibility to refuse to have sex if they don't want to become a parent. That rule gives an awful lot of freedom to women and can handcuff a young man for a long long time. A fair rule would be to give men a thirty day opt out opportunity. There after a woman would have time to decide whether she was going to keep the baby, put it up for adoption or terminate the pregnancy.

There is an additional fallacy to the "best interest of the child" rule requiring men to pay child support in a case of a pregnancy they didn't want. That is that it is rarely in the best interest of the child to be with parents who don't want her or cannot afford her.

If we were really going to look at what was in the best interest of the child and used a monetary ruler to determine that factor, wouldn't the best interest of the child be to put her up for adoption to a family where both parents wanted her and could afford her? Now I could see the front page of the newspapers now. Pictures of tearful birth mothers having their newborns ripped from them in their best interest.

The fact is that there are many birth mothers who look at their children as winning a lottery. After all they do not have to work or finish school. They receive money each week until the child is twenty two years old. I wonder how many women would chose to have babies out of wedlock and keep them if they knew that their support would be capped at say Four Hundred dollars a month?

To put everything on the woman in this matter is unfair. There are as many men playing games with support as their are woman. Nevertheless, the remedy as it now stands is tilted to far in one direction. The issue of the best interest of the child is false. The law doesn't really provide for the best interest of the child. It provides for the easiest solution for the court. Courts need to have direction to change the parameters of the equation so that the best interest of the family as a whole, even one that is not together is taken into consideration. Babies are born into families everyday that can't afford them. By virtue of being together they make do and often succeed thanks to the concept of Love. Children are born to mothers who lose their husbands before birth. Again the woman is able to make do. Only where there is a man capable of providing financial aid does the best interest of the child come into play. Do not the orphan and the children of the poor deserve what is in their best interest too?

There is no such thing as a blameless pregnancy. The financial responsibility needs to be better shared among the parties. There needs to be a penalty to all parties that bring a child into the world under the circumstances outlined above. We also need to keep in mind the children of both parents that are to come. The present system unfairly burdens Fathers for their lifetimes. It is high time it is changed so that each parent take responsibility for the life they bring into the world and that financial incentives to concieve unwanted babies be ended.
Hat tip: The Volokh Conspiracy
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