the psychological best interests of the child
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This article was downloaded by: [McMaster University]On: 20 December 2014, At: 14:44Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number:1072954 Registered office: Mortimer House, 37-41 Mortimer Street,London W1T 3JH, UK
Journal of Divorce &RemarriagePublication details, including instructions forauthors and subscription information:http://www.tandfonline.com/loi/wjdr20
The Psychological BestInterests of the ChildGlenn Miller MD aa Clinical Professor, Psychiatry, GeorgeWashington University Medical Center,Washington, DCPublished online: 18 Oct 2008.
To cite this article: Glenn Miller MD (1993) The Psychological Best Interestsof the Child, Journal of Divorce & Remarriage, 19:1-2, 21-36, DOI: 10.1300/J087v19n01_02
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The Psychological Best Interests of the Child
Glenn Miller
ABSTRACT. The "best interest of the child" is the central principle in legal disputes concerning the placement of children. Since ihe concept is invoked in bolh law and mental health, it is often viewed as meking the same to bolh professions.
This idea is false. Psychologically, the deler~nination of best inter- est depends on the emotional life of the child, especially present and future intimate relationships. Legally, best interesls include moral, financial, and multiple oUlcr factors in addition to psychological aspecls. Moreover, mental health professionals lacilly consider best interests as the ultimate principle in placement whereas the law considers other principles to be prior to best interest (e.g., equal protection of parents or society's needs). Opinion of mental health workers is limited to psychological considerations, which are not decisive in determining the legal best interests of the child.
"The best interests of the child," the guiding principle in almost all custody disputes in the United States, is as well accepted among psychiatrists, psychologists, social workers and other mental health professionals (APA, 1982; Levy, 1985; Goldstein et al.. 1979; Sol- nit & Schetky, 1986) as it is among jurists (Nevius, 1989).
Since "best interests of the child" appears in both the mental
Glem Miller, MD, is Clinical Professor of Psycliiutry, Gcorgc Washing~o~i University Medical Centcr and Adjunct Professor of Law, Georgetown Universi- ty, botli i n Wasliington, DC.
Tlie autlior is grateful to Erika Miller, Lee Haller, MD, and Richard Ratliel; MD, for llieir critical commentaries.
Address reprint requests to the autllors at: 8213 Tomlinson Avenue, Bcfl~esda, MD 20817.
Jounlal of Divorce & Remarriage, Vol. 19(1/2) 1993 O 1993 by The Haworth Press, Inc. All rights resewed. 21
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health and legal domains and since both professions organize their thu~lkmg around this fundamental idea, the phrase appears to mean the same in both domains. If so, psychiatric or psychologic recom- mendations entail legal decisions: mental health workers become the evaluators whose findings are translated into judicial action (Ash and Guyer, 1986).
This notion of commonality is false: best interest of the child as viewed by psychiatry, psychology, and allied mental health profes- sions is not synonymous with that of the law. In addition to explor- ing the psychologic and legal meanings, this article will attempt to make explicit the often hidden assumptions in psychiatric usage of "best interest."
Since the incidence of divorce has reached epidemic proportions (Fine, 1987), it is important to refine our ideas concerning the custody of children. Probably 45% of all children born in the United States in 1983 will experience parents who divorce (Schetky, 1989). With few exceptions (Cherlin & Furstenberg, 1989; Warren & Il- gen, 1986-87), the divorce literature supports the idea that children from broken homes are permanently and profoundly affected (McDermott, 1970; Hetherington, 1979; Derdeyn, 1980; Waller- stein, 1988). It is arguable that the most widespread psychiatric disorders among children are divorce-related.
THE LEGAL STANDARD
Although legal scholars have widely criticized the "best inter- est" standard as amorphous or indeterminate (Mnookin, 1975; Ne- vius, 1989), the legal notion is capable of being clearly articulated since it usually appears in case law (Montgomery County v Sanders, 1977) or is established by statute (Benedek, 1972). For example, Michigan Law identifies ten factors as defining the child's best interest.
Typically, the law relies on a behavioral science notion of what is best for the child-the influential Uniform Marriage and Divorce Act (UMDA), for example, is heavily weighted in favor of psychologi- cal concerns; it identifies five basic considerations including the wishes of the child and the parents, the interactions in the family,
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the child's adjustment, and the mental and physical health of all the parties (Nevius, 1989).
But it is important to note that psychological values alone do not constitute the legal best interest.
First, the law always considers non-psychological values in de- termining best interests. Thus, the Michigan law considers the par- ents ability to provide the child with food and clothing, and the moral fitness of the parents (Benedek, 1972). Other states have adopted similar p i d e h e s and there is some evidence (Sorenson & Goldman, 1990) that courts are tending to use these more specific variables to make determinations. These are important consider- ations to be sure, but both are important in the mental health field only to the extent that they affect the psychological status of the child.
Secondly, the law is not required to request psychological opin- ion. Indeed, it is only in the last several decades that psychiatric or psychological opinion has played an active role in custody disputes (Derdeyn, 1976). The court may still reject a professional recom- mendation if it believes the opinion is not helpful (Okpaku, 1976). The opinions may be considered to be too mdirnentary, too uncer- tain, or too lacking in predictive value. Or they may be considered useless because the "most widely accepted psychological hypothe- ses concerning childhood needs are virtually identical to the as- sumptions expressed h judicial guidelines" (Okpaku, 1976, p. 1126tthat is, they add little to the court's understanding.
Moreover, even though "best interest" is our present guiding principle, it does not always rule in the courtroom. Whether for tactical purposes or ignorance (e.g., Bazcmore v. Davis, 1978) it is often not invoked. Roth (1976-1977), for example, writing about "the tender years presumption," includes a 101 line footnote (!) citing instances ofcourts favoring the mother despite statutes en- dorsing best interests. These cases reflect a defect in the administra- tion of the law, not in the law itself.
More importantly, there are conflicting principles in law, in which the court is called upon to make a choice. Thus, courts may give precedence to parental rights (Langelier, 1985) over a child's interests. Even where courts uphold the best interests notion, they are often influenced by other factors. One court cautioned against
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the "absurd" result of the "unrestrained application of 'psychologi- cal parenthood' theory." While testifying, a psychiatrist was pres- ented with a hypothetical case "in which a child was removed from his home by kidnappers and kept safe and well cared for by the criminals for an extended period of time. [The psychiatrist] said that it would be in the child's best interest to remain with the kidnappers since psychologically they would be his family" (Montgomery County v Sanders, 1977).
Although this may seem absurd to adults, to the child it would not seem so if the criminals were truly loving. Nor is the possibility of such a situation limited to bizarre crimes. This case would obtain if the kidnappers were a devoted mother and a step-father (who would become cri~ninals if they unlawfully took the child out of state). Nonetheless, to the law it would remain absurd because no one is to profit from a criminal act, implying that other consider- ations may take precedence over best interest.
Finally, courts must favor constitutionally protected rights over best interests if there is a conflict between the two. Here, the child's interest becomes secondary. In Coy v Iowa, the court ruled that the use of privacy screens, preventing a child from having to view an alleged abuser was a violation of the sixth amendment allowing a defendant to face his accuser (Haller, 1990). Constitutionally, this is correct: "It is a truism," Judge Antonin Scalia said in delivering the 6-2 opinion, "that constitutional protections have costs" [Clinical Psychiatry News, 1988). Although the Court ruled in Maryland v Craig (Cooper, 1990) that a child may give testimony through closed circuit television, it only allowed this procedure because it believes that the defendant is still enjoying his "right to be con- fronted with witnesses against him" even though the child does not directly face him.
Supreme Court decisions make clear that constitutionally man- dated rights pre-empt best interest. A biological father, who had almost no contact with his son for eleven years, objected to the adoption of his son by the child's step-father (Quilloin v Walcott, 1984). The biological father claimed that his due process and equal protection rights were violated as a result of the "best interest" standard that was applied. The court held that he was not deprived of his rights and let the state law stand. However, it was implicit in
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this decision that ifthe man's constitutional rights had been judged to be violated, then the best interest requirements of the state's code would have to be changed-i.e., again that constitutional rights take precedence. Despite disclaimers to the contrary, courts are more likely to focus on the wishes of adults; the Quilloin decision did not elaborate on the constitutionally guaranteed "equal protection" of the child-only that of the father.
In another case, Anthony Sidoti, a caucasian, sought custody of his daughter, Melanie, after his wife lived with and later married a black man (Pulmore v Sidofi, 1984). A Florida court awarded custo- dy to the father arguing that it would be detrimental to the child to live in a racially mixed marriage because Melanie would be "more vulnerable to peer pressures [and] suffer from the social stigmatiza- tion that is sure to come" [p. 18811.
The Supreme court reversed this judgment. It acknowledged that Melanie could be subject to additional stresses in a mixed-racial marriage: "the question however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not" [p. 1882). The Court made its decision because it believed that the Florida court denied the mother the protection she is guaranteed under the Equal Protection Clause. The decision was not made on the basis of the best interests of the child.
Should a mental health professional, such as a child psychiatrist, consider racial questions in determining the best interest of the child? A psychiatrist, qua psychiatrist, must consider any issue- . - .
moral, physical, political or racial if it affects the child psychologi- cal development. It is fair, for example, to consider age, physical health or morality of the parent if relevant to best interest. If so, it is fair to consider race or religion also if these matters are considered from a developmental rather than a moral standpoint.
In Melanie's case it was a legal judgment that racial bias should not be considered. For race to be a medical consideration would require that there be scientific or clinical findings that (e.g.) misceg- enation is favorable or unfavorable to a child's well being. More- over, it would have to be considered as only one of several factors- including the more important ones of the continuity of relationships
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and psychological parenthood. The Florida court did consider this, judging (or misjudging) that miscegenation adversely affects the developing child. The court did not weigh heavily the importance of the bond to mother, with whom Melanie had lived her entire life, nor the disruption if she were removed; if it had done so dispassion- ately, (and perhaps with the assistance of a mental health worker), it might have decided differently.
Fortunately, psychological considerations appear to support the Supreme Court's legal decision on the Palmore case. But if a psy- chiatrist were to conclude that, all other factors being equal, it was less emotionally damaging for Melanie to live in an unmixed mar- riage, then a psychiatrist would be required-if as a psychiatrist, he endorsed a best interest principleto prefer psychologically an un- mixed marriage as preferable-even if it were offensive morally. It is in such cases that one can begin to understand why the best interest principle is sometimes abandoned.
Indeed, neither the law nor the mental health disciplines are obliged to define best interests as the guiding principle. It is only in the last century that this idea has become important (Derdeyn, 1976). Until the end of the nineteenth century, custody was deter- mined on the basis of father's interest, not the child's. In ancient times, the law even allowed fathers to sell or kill theh children (Roth, 1976-1977; Derdeyn, 1976thardly in the best interest of the child.
Thus the best interests as defined legally are different than the best interest defined psychologically. It is also not a supreme princi- ple in law since issues like due process, facing an accuser and equal protection take precedence.
For the mental health professional, the best interest of the child is the ultimate test in a placement decision. For the law, it is not. Laws about children are written by adults and usually have adult benefit in mind. We may live in a government of the people, but it is by adults, for adults.
THE PSYCHIATRIC OR PSYCHOLOGIC STANDARD
When texts mention custody issues, they discuss the evaluation of the child, without offering a specifically psychological-as op-
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posed to legal-definition of best interests. With emphasis on meth- odology, arrangements for the child, and legal requirements (e.g., that children must visit the non-custodial parent unless visits are proven harmful) the legal standard is either not distinguished from the psychologic or psychiatric (Goldstein, Freud & Solnit, 1979; Weiner et al., 1985) or is unstated (Levy, 1985). These omissions are sometimes combined with a tacit endorsement that the mental health professional is a fact-finder whose results are translatable into best interests (Rae-Grant & Awad, 1983; Levy, 1985; Ash & Guyer, 1986; Chess & Hassibi, 1986).
The closest to an official psychiatric position on child custody came from a task force of the American Psychiatric Association (1982). The ends of child custody are implied in this thoughtful monograph: the child's needs are based on a satisfactory "recipro- cal relationship between a parent and child, the adults "parenting capacities" and "relevant family dynamics." Psychiatrically, the suggestion is uncontroversial: best interest is object-related and based on the developing relationships in the family rather than on long term predictions in such areas as cognitive or moral develop- ment.
The most explicit statement appears in the influential Beyond the Best Interest of the Child: "The least detrimental available altema- tive [the authors' reformulation of best interests, stripped of any optimistic connotations] is that child placement and procedure for child placement which maximizes in accord with the child's sense of time, the child's opportunity for being wanted and for maintain- ing on a continuous, unconditional and permanent basis a relation- ship with at least one adult who is or will become the child's psychological parent" (Goldstein, Freud and Solnit, 1979 [p. 991).
Since "least detrimental alternative" appears in the author's pro- posed legal code, it is, by definition, a legal term. The authors do not distinguish the psychological from the legal except at times when they criticize legal formulations which are not based on the child's emotional needs. Moreover, since best interests are de- scribed only in psychological terms, the legal and the psychological become coterminous. it may be noted also that the psychological is entirely informed by the psychoanalytic.
It is also a formulation that is uncompromisingly child-oriented,
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extrapolating to the limit the traditional psychoanalytic emphasis on the individual. In this approach, it is implicit that best interest is based exclusively on the child; other factors including the needs of parents, siblings, or the state are considered only insofar as they affect the child.
In contrast, a family system may consider the needs of the family as a whole or any of its individual members. Thus a GAP report, Divorce, Child Clrsfody, and the Family (1981) refers to the needs of the whole family (p. 16), the dangers of the "extreme application of the best interests theory (without regard to parental rights (p. 34)," and framing recommendations within the context of the family-in- dicating a subtle shift towards the best interests of the family, rather than the child. This approach introduces complications if the ap- proach still wishes to maintain as the ultimate principle, the primacy of the child's best interest (cf. Jacobs, 1986). Since both the child's and the family's best interest cannot usually be satisfied, such a system must compromise.
Still more complex is a community or societal approach-like that inherent in Supreme Court decisions described earlier. Here, the good would be maximized for all children rather than the individual child: the physician would be obligated to place the child in an unwholesome situation if it resulted in better conditions of place- ment generally. These utilitarian goals conflict with the traditional ethical standards wherein one must not sacrifice the care of the individual client or patient for the welfare of society. Soviet psychi- atrists, for example, were not excused for surrendering their pa- tient's interests for the greater good of the state; nor can a physician sacrifice the individual good of her patient by ~ e r f o r m i n ~ experi- ments on him that will later benefit a greater number of people (Stone, 1984).
Probably as a result of this tradition, societal approaches have not been considered by mainstream psychologists, social workers or psychiatrists.
What is clear in the literature is that best interest does not refer to predicting future psychiatric symptomatology, i.e., professionals do not attempt to predict which placement is most likely to prevent specific psychiatric disorders. That seems appropriate since there is scant knowledge about the types of parental environment which can
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Glenn Miller 29
be correlated with psychiatric diagnosis on a short term basis; for long term predictions, there is almost none.
o n a short term basis, the professional may make a few reason- able predictions conceming potential symptoms. In the organic realm, there are some psychiatric syndromes such as those resulting from toxic conditions (e.g., lead poisoning), metabolic diseases (e.g., homocystinuria) or endocrine disorders (e.g., hypothyroid- ism) whose outcomes can be reasonably predicted. But these dis- eases are unusual, and cannot discriminate between parents except, perhaps, where the negligence of one of the parents has resulted in the disorder.
In the absence of organic pathology, short term prediction of psychiatric symptoms is limited, e.g., a child removed from loving parents may become enuretic (A. Freud, 1973), but a child removed from abusive parents may cease to be enuretic. Nor are epidemio- logical studies sophisticated enough to assist in placement. Family discord, for example, is profoundly adverse to children (Emery, 1982; Rutter, 1989). This may seem to favor divorce but the results are still too general to be decisive concerning the effects of parental separation, let alone deciding custody.
Our knowledge of contribution of childhood placement to pre- diction of symptoms appearing in adulthood (i.e., long term predic- tions) is eitherminimafy suggestive or unknown even though there can be no doubt that divorce has permanent effects on the child. But there are no identified psychiatric diseases correlated with custodial placement.
Even if there were reliable indicators connecting psychiatric dis- orders with custody, it is questionable how useful that would be in making a decision. A psychiatric diagnosis is but one dimension of personality (Miller, 1986) and only one component in the decision. Placement should be made not only on what symptoms the parent may help the child to avoid, but more importantly on the parent's ability to enculturate the child.
Although the literature neglects defining best interest, a general notion does emerge from the clinical recommendations, which are similar among most evaluators. The next section will attempt to make this notion explicit.
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THE PSYCHOLOGICAL BEST INTEREST OF THE CHILLI
It is implicit in the psychiatric and psychologic literature that the clinician's chief tasks are to determine who of the competing adults will form the most favorable intimate and affectionate relationship with the child and who will provide an environment enabling the child to make satisfactory relationships with others. In short, the basis of the placement is inter-personal. Since Freud, gratifying human relations tend to be equated with happiness (Ston; 1988) although mental health professionals are loath to make that view explicit. Freud has suggested that a loving relationship with another (Freud, 1930) [p. 821 comes closest to the ideal of happiness [p. 821; and conversely that the greatest contributor to unhappiness is the [p. 771 the suffering resultant from defective human relations.
One by-product of this approach has been the exploration of the relation of the best interests to the developing psychological rela- tionships of the child. Detailed models of development are now available which assist in the placement of children (e.g., Erikson, 1959; Mahler, Pine & Bergman; 1975; Stern, 1985; Greenspan, 1981). These models tacitly assume that a child must traverse de- fined stages to achieve favorable adult outcomes. In the area of the development of inter-personal relationships, psychiatrists have made useful contributions to child placement. Nevertheless, no theory offers a systematic approach.
That inter-personal relationships are central values in custody determinations is hardly surprising. Placement decisions focus around the choice of the object, usually mother or father, who will best serve the child's needs.
One may object that this attitude is a result of the influence of psychodynamic theory, and that other factors (such as learning theory or biological aspects) must be considered for a comprehen- sive assessment. For example, the last section noted that epidemio- logical studies demonstrate that family discord is profoundly ad- verse to children; this, in turn, may be a suggestion that divorce is preferable to a tumultuous family situation; but as important as these studies are, they do not address best interests directly. Other systematic clinical studies such as Wallerstein's (Wallerstein & Kel- ly, 1980; Wallerstein & Blakeslee, 1989) frame their questions pri-
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marily around relationship issues. That so little compelling evi- dence is available for informed decisions is a commentary on the rudimentariness of placement research (Hutchinson & Spangler, 1988189). The major source of our understanding remains our knowledge of interpersonal relations derived from psychoanalyti- cally oriented developmental theories.
A large body of information about intimate relationships between child and parent exists, but this knowledge has not been correlated with other cognitive or behavioral skills. In preferring human rela- tionships, it is tempting to value a parental affectionate capacities more highly than instrumental capacities. For the same reason, it is tempting to underestimate a child's activities in a non-human envi- ronment. A child who devotes large amounts of time to discovering patterns in physical objects ("pattemers") does not imply that he is necessarily less happy than a child interested in fantasy and prefer- ring social conversation ("dramatists" or "verbalimrs") (Gardner, 1985) unless one uses a vulgarization of psychodynamic theory in which any mechanical or solitary activity is sublimated or defen- sive. Nor have we developed a persuasive psychology of casual or collegial relationships, of creativity or sports, or multiple other activities.
This is not to say that those non-human areas are necessarily neglected in a custody evaluation. But it is to emphasize that many mental health professionals working in this area know more about inter-personal development than about normal solitary activities. They should be appropriately cautious in making recommendations that include factors beyond their expertise. A child psychiatrist, for example, may comment on the effect of separation on the education of a child, but the discussion should be limited to emotional aspects of education. A more complete answer about the education of a child requires an educator or an educational psychologist.
Further, non-psychological or non-psychiatric issues must not be considered since these are areas outside our expertise. This article has argued that any issue (e.g., moral, physical, or economic) should be considered only insofar as they affect the psychological welfare of the child.
Obvious moral complications are easy to avoid-a psychologist knows, for example, that his personal religious, sexual and racial
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preferences are irrelevant to placement. More difficult to avoid are the unconscious values that he embraces, values that are often embedded in a seemingly neutral psychological theory. For most mental health workers (McGlashan & Miller, 1982), the parent who is more likely to promote autonomy in the child is to be preferred. This is not an article of faith for many-perhaps most- people: Gay (1989) has pointed out that evangelical Christians raise their self-esteem, not by finding their own sense of purpose, but through following the wishes of God, who is the only genuine source of self-esteem. For many religious people-not just evangelical Christians-happiness is determined by a person's relation to God, not to other people. For psychological theory, one's relation to God must be explained only in psychological terms, e.g., as a product of psychic structure-even if one is "tol- erant" of religious experiences (Deutsch, 1927).
What seems morally just is not always psychologically right. Unfortunately, there is not a direct correlation between morality and mental health: the ethical standards of the parent are not decisive indicators of psychological capacities to rear a child. As implied above, one cannot say that a mother's kidnapping her child is prima facie evidence that she is psychologically unfit because she com- mitted n criminal act. As mental health workers we are limited to commenting on psychological aspects of human action; ethical is- sues we leave to judges. If we were to insist that our findings should be translated into judicial action, we would embrace a "health ethic," in which morality becomes reduced to psychology-i.e., where there are no longer good or bad persons, just healthy or sick ones (cf. Hartmann, 1960). In the courtroom, we do not offer moral reasons for placement, but we do not deny that a judge may consid- er moral aspects in his decision.
CONCLUSION
For the mental health professions, best interests center about the formation of affectionate relationships in a developing child-not in predicting future psychiatric disorders. Child psychiatry or psychol- ogy has no expertise on non-psychological issues.
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The legal best interests include whatever the law wishes to be defined as constituting best interests. It is not limited by psycho- logical consideration; and as outlined in this article, may include moral, physical, and financial considerations. Moreover, Consti- tutional or other legal considerations may pre-empt the best in- . -
terest principle. Legal and ethical concerns cannot easily be separated from psy-
chological ones; indeed it is possible to rewrite psychological prop- ositions as moral ones (Stone, 1984; Miller, 1985). As a result, there is always the hazard that a mental health professional may offer moral beliefs disguised as psychological opinions.
Mental health professionals can help to delimit their area of expertise by referring to the "psychological best interest" rather than the more inclusive "best interest." This would reduce the confusion in placement contests since by reminding the court and the professional that the moral, legal and other components lie outside the psychological domain.
Doing so would provide an analogous situation to the use of "insanity" and "psychosis" in criminal responsibility trials. In in- sanity trials, the mental health professional is usually asked to ad- dress criminal responsibility questions identical to those posed to the jury; as in child custody disputes, this promotes confusion. However, in insanity cases, she answers in psychologic or psychiat- ric terms; she does not speak of "insanity" (a legal term foreign to present-day psychiatric nomenclature) although she may speak of "psychosis"-recognizing that psychosis means something quite different from insanity. Presently there is no parallel in child custo- dy disputes since "best interest" is a term shared by mental health professions and the law.
This article has not discussed practical considerations except in passing, but the implications are clear, and are consistent with some general principles of expert testimony (Miller, 1979,1985, 1989). The mental health worker's primary job is to describe the psychological status of the child, to predict cautiously about the child's future psychological development, and to refuse to dis- cuss non-psychiatric recommendations concerning child, family or society.
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