Monday, April 11, 2011

The Continuing Importance of Family

As I mentioned in the last post, I think there is a lot we can gain from considering who can see and interact with children based on something other than old legal constructs. The United States certainly recognizes the importance of extended family in certain contexts, especially child welfare and the Indian Child Welfare Act, family law has been slower to join the bandwagon.

Several states have some version of grandparent visitation statutes, the breadth and constitutionality of which have been called into question since Troxel v. Granville. Partly because of Troxel, these statutes often only provide for the possibility of visitation by grandparents and great-grandparents. Several states also have statutes providing for custody by people who have stood in loco parentis to a child, which is one avenue that same-sex partners have requested custody rights to children. In Arizona, however, this statute has a rebuttable presumption that it is in the child’s best interests for the legal parents to have custody – thus the biological (or adoptive) parent in the same-sex partnership.

In other words, the United States remains stuck on the notion that parents and their children exist in a vacuum.

New Zealand has taken a different approach to this topic. In 2004, New Zealand passed the Care of Children Act, and provides the following principles underpinning the notion of best interests:

“there should be continuity in arrangements for the child’s care, development, and upbringing, and the child’s relationships with his or her family, family group, whānau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents): [and]

relationships between the child and members of his or her family, family group, whānau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing.” (Care of Children Act 2004, s 5).

Whānau, hapu, and iwi are Maori for extended family, “clan,” and “tribe” or “people,” respectively. Thus, New Zealand recognizes the importance of these extended notions of family to the upbringing of children. It also recognizes that the most important relationship that the legislation can tackle is the relationship between the child and his or her parents.

Certainly, we cannot allow everyone and anyone to have the right to have access to children; courts would be overburdened and the confusion would be simply overwhelming. Moreover, it would encourage rather than discourage people to partake in the adversarial system. But there can be some push to include more family as well.

Parents considering how to best allocate the day-to-day care of their children are usually in some state of emotional upheaval, and it is hard enough for them to consider the need to allow the other parent time to be with the child, let alone thinking of the other parties’ extended family. A simple reminder that this is something the court is going to consider may be the push that parents need to ask themselves who has helped support the child until now, and how can that continue into the future?

Will this work for the really difficult cases? Probably not. Will this work in all cases? Of course not. But children’s relationships with their extended families do not end simply because their parents separate. Instead, that is the time when children need the support of family the most, and parents’ rights do not dissolve a child’s needs for family.

Are there other ways to encourage extended family to be part of a child’s life? How important do you find it in your practice to encourage children to remain close to their extended family? Is it harder when a parent is absent?  

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