September 01, 2015

What Courts Should Consider When Determining Children’s Best Interests

Michele Cortese

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

At the ABA Fourth National Parent Attorney Conference on July 23, 2015 many very creative practitioners participated in a lively discussion on “Re-Invigorating and Reimagining Best Interests.” Our objective was to name a set of “interests” for children that went beyond what is typically referenced—primary attachment and physical safety. Then we explored ways to integrate a broader, richer notion of interests into our advocacy —to stir a sense of urgency about reunification and cast some skepticism on the notion that expedited permanency (often adoption) is always in a child’s best interest. 

Parent attorneys have a role to play reshaping the notion of best interests and expanding it so judges, child welfare agency workers, and attorneys for children are more willing to go the distance before ignoring or severing these interests. Hopefully this will mean people will work harder to reunify families or work harder on guardianship or some other arrangement that does not permanently sever legal (and often all other) ties through adoption. 

Here are the interests the group developed. Thanks to Sarah Katz, my co-facilitator, and the group for the many great ideas.

In addition to safety and primary attachments, a court should consider the following interests when determining best interests:

  • A child’s constitutional right to be raised by her or his parents (implicit in the decisions that recognize the parents’ right to raise their children).
  • Children deserve a resolution that is “least burdensome” in that it disrupts as little as possible and destroys as few connections as possible.
  • Children have an interest in familiarity with physical surroundings/community.

  • Children have an interest in knowing their history and being able to easily access their history (also, consider medical history).

  • Children have an interest in cultural identity.

  • Psychological health in a broader sense than typically considered (i.e., include intimate knowledge of history and culture as they contribute to identity and a richer notion of identity as linked to psychological health).

  • Best interests should NOT be about what resolution provides greater material possessions, wealth, notions of what is conventionally better, etc.

  • Children have an interest in lasting connections to siblings, cousins, and fictive kin.

  • Is the adoptive parent going to benefit financially from an adoption (i.e. subsidy over a long period?). This should be explored in terms of the adoptive parents’ commitment to adopt. A child has an interest in being with someone who wants to raise him or her without a financial incentive.

  • Children have an interest and right to have their parent be their parent whether or not that parent has done things that were considered neglect.
  • Consider LOVE, LOYALTY and the MESS of family—children deserve the right to their families, regardless of how messy they may be.

  • Children have an interest in self-determination. When a child wants to return home or stay connected to family that deserves great weight in determining what interests are being promoted.

  • Children should not have to carry the burden of knowing their parents’ rights were terminated/they “failed”/they could not be considered “parents.”

  • Children’s religious interests should be considered (e.g., children who value the notion of honoring their mother and father).

  • Children have a right to dignity. Don’t dampen, compromise or deny children the dignity of knowing that their parents remain their parents (even if someone else, such as a guardian or custodian, is caring for them). Adoption could take that away.

  • Children have an interest in being viewed in their own unique context. What is right for other children may not be right for them.

  • Children have an interest in knowing the “whole story” of their parents, rather than filling in the blanks. Did their parents give up on them? Not fight hard? Go the distance before permitting that interest to be ignored.

  • If the child lives in a community that is effectively being systematically dismantled by the child welfare system, point out that the court should not add to/contribute to this.


What can advocates do to bring this richer notion of interests (and what is therefore “best”) into our cases?

  • Read constitutional cases. Draw on the rationales in reproductive rights cases, parental rights cases, and any cases that extend the notion of family beyond conventional norms. Argue that ‘family’ is not a narrow concept, children have the right to be raised by parents (or remain connected to them), and the constitutional interest in family integrity is not to be taken lightly or destroyed precipitously.
  • Use literature on the trauma caused by separation and the harm to children who lose knowledge of their culture, heritage, and sense of belonging.
  • Read the Convention on the Rights of the Child. It contains powerful themes that can be used to remind the court of the widely recognized importance of self-determination, family bonds, and culture.

  • Review custody statutes and decisions (related to private disputes) where “best interests” may be more fully fleshed out than it is in dependency law. While not on point, these statutes and cases could be persuasive (often in custody cases, litigants make accusations against one another that are arguably as or more serious than those in dependency cases).
  • Read or review social science literature about loss of connections and disruptions in a child’s heritage/history. Consider attaching literature to motion papers or asking a case planner whether it has been considered. 
  • Consider tracking your own data on ‘broken’ or ‘disrupted’ adoptions then use it in court. 

  • Do the math on the money the adoptive parent has gotten or will get. Argue two things: a child should be able to be raised by someone who is not interested in money (could be parent or could be relative). Alternatively, argue that so many of the child’s interests should not be ignored or compromised for such a relatively small amount of money (e.g., “for $XXX, should we take all that away from this child?”).

  • If you are in a state where court appointed special advocates (CASAs) make recommendations about adoption or changing a child’s permanency goal, review the CASA code of ethics. Be prepared to argue that the CASA may be going beyond what is ethically responsible.

  • If children are being seen by mental health providers, engage them in a conversation about what a child wants. Ask the provider to speak with the department, file a report, or be a witness. One practitioner had good results when calling children’s mental health providers to testify about the ‘loss’ a permanent severing of ties would be to a child who had already experienced the loss of the parent via foster care.
  • Ask the child’s representative what the child wants? Illuminate situations where they are substituting their own judgment.
  • Use data (if available) on how many families in a neighborhood or community are being impacted. 

  • Argue that this case should not contribute to that.

  • Use data on “legal orphans” to argue that adoption is not always best and so should not be chosen too quickly. Use this especially where children are not in a preadoptive home when the department seeks to change the goal.
  • Engage as many community supports as possible for the parent (and have them at court or family team conferences as often as you can). From the beginning, shape a narrative about ALL the interests a child has in terms of connection to a wider community. Showcase and NAME these many interests (e.g., “While the child has an interest in safety, the child also has an interest in maintaining these other important connections.”) Name the other interests then argue for these people to support the child/visit the child/otherwise play a role.
  • Consider attaching articles from RISE/Represent to papers, or refer to them in court to show what children lose in the process of an adoption From the beginning of a case, point out the many interests a child and family has.

  • Raise the topic of children’s interests in regular meetings with other stakeholders or other venues. Ask to facilitate a discussion of “best interests.” By cataloguing them, you can help others realize they often view these interests as too few (e.g., only safety and primary attachment) or too limited (disallows children’s abilities to have multiple relationships, culture, identity, history, etc.).
  • Join efforts to change legislation to expand the list of best interests or create some exceptions for goal-change timing (i.e., incarceration). Just trying to make this happen gets people talking about what they mean when they say “best interests.”


Michele Cortese, Esq., is deputy director at the Center for Family Representation, Inc., New York, NY.