In child custody battles, the notion of “the best interests of the child” is quite abstract. What is considered “best” for one child is not necessary “best” for another; and generally each case is decided on its own particular facts. Regrettably, sometimes these decisions are based not only on unsubstantiated facts, but arguably reflect the judge’s/referee’s emotions or feelings. Furthermore, it can have a very disparaging effect on other people’s decisions to become parents.
In its recent decision, Matter of Lawrence C. v Anthea P., the New York Supreme Court, Appellate Division, First Department, reversed the referee’s decision to grant primary physical custody, as well as legal custody, of twin children to the father. This case is not an average run-of-the-mill divorce or even a romance-gone-bad. In fact, this case stems from quite an unromantic beginning – a woman places a web advertisement seeking a man to father her child. According to the parties’ agreement, the child would be conceived via artificial insemination and the father will play an active role in the resulting child’s life. A custody arrangement was worked out, even prior to the twins’ birth. In 2007, the father petitioned for primary physical custody, as well as legal custody of these children. One of the reasons given by the referee in 2009 for granting the father’s petition was that “the children, by reason of their nontraditional family background, would more easily fit in with other children in the father’s West Village neighborhood than in the mother’s predominantly Greek-American neighborhood in Queens.” The appellate court rejected this assertion as “speculation (based on lay testimony).”
In her recent article “Colloquium Celebrating 25th Anniversary Of Feminism And Legal Theory Project: Familial Norms And Normality”, Clare Huntington, Associate Professor at Colorado Law School, talks about the role emotions and feelings play in the field of family law. In particular, she mentions that “[t]he social norms surrounding myriad specific parenting choices are far-reaching, creating expectations that parents will, depending on the community, baptize or circumcise a child (or follow a similar religious ritual for a young child), dress a child in gender-specific clothing, teach a child not to use swear words (at least in public), volunteer in a child’s school, value homework, or provide a religious education. Fellow family members, teachers, religious-community members, neighbors, and others enforce these expectations on a regular basis.”
In other words, Professor Huntington would probably agree with the referee’s decision that it is not in the best interests of the twins conceived by such a non-traditional method to be raised among Greek-Americans, who are known for strong family ties and traditions.
But what kind of message does it send to women who, for one reason or another, resort to this “unconventional” way of having children? Even after you make a difficult decision of reach out to a stranger to father your child, you risk having this person control what happens to him/her. Perhaps this woman would have been better off finding a sperm donor. Yet, she probably wanted for her child to have a father in his/her life. Little did she know that this father would end up dragging her to court….