36 Fam. L.Q. 449 (2002-2003)
Virtually all the legislation dealing with families that include children begins with a "best interests of the child" premise.' Most, if not all, of the litigated results at least seem to maximize the outcomes for adults. This discrepancy should not be surprising, for both substantive and procedural reasons.
The substantive reason, as even the Supreme Court has noted, is that most of the time, what is good for parents will also be good for children. Moreover, having parents who possess many "rights" allow them to better exercise their parental responsibilities. From a procedural perspective, adults are usually the named parties in suits involving children. Children are not themselves legally capable of bringing most actions;6 lawyers and guardians are expensive and therefore beyond the means of nearly all children; children may not know what "rights" they do have; and all these "mouthpieces" replicate the child's voice, as in a "telephone game," imperfectly. Because adults usually bring lawsuits, it is not surprising that the adult perspective is foremost."
Because the adult perspective gets the most attention, makers of social policy may fail to consider serious implications for children's well-being. We argue here that a single change in an adult's legal status-from kin caregiver to adoptive parent-may have large effects on children's welfare, particularly for groups lacking traditions of resorting to extended families in times of trouble.
Margaret F. Brinig & Steven L. Nock,
How Much Does Legal Status Matter? Adoptions by Kin Caregivers,
36 Fam. L.Q. 449 (2002-2003).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/486
Reprinted with permission of Family Law Quarterly.