SOLOMON'S JOB was a snap compared with the burdens of family court judges in the United States today. Not only must they rule in cases in which parents are fighting each other for custody of the children, but they frequently must also decide whether the parents or the state are better guardians. This was the issue in Santosky v. Kramer, a case the Supreme Court decided last week.
John and Annie Santosky had three children while they were still teen-agers themselves. After authorities had received complaints from neighbors that the parents had neglected and abused the children, all three were removed from their home by New York State welfare officials in 1973 and 1974. Two years later, the state sought to end the Santosky's parental rights altogether in order to make the children eligible for private adoption. To do this they had to prove that the Santoskys had "permanently neglected" the children for a period of one year and failed to respond to the state's efforts to teach them to be better parents.
The Santoskys had visited the children during the two-year period. They subsequently had had two more children that, the state concedes, were being well cared for. They decided to fight. They claimed that the state had to prove their neglect by a stricter standard -- by clear and convincing evidence -- than the New York statute required. The Supreme Court agreed and sent the case back to family court for new proceedings. The decision was 5 to 4 with the dissenters protesting vigorously that domestic relations matters ought to be left to the state courts.
Sorting out the conflicting interests in cases like these -- especially since there is good faith and good will on all sides -- is a task that, in Teyve's phrase, "would cross a rabbi's eyes." First we have the state, which in the case of New York is supporting 27,000 children in foster care. Social workers believe they have a responsibility to protect neglected children, to provide a stable and permanent home eventually and to move children out of expensive and uncertain foster care as soon as possible. The parents, of course, have substantial rights. Even if they cannot or should not take custody of the children at the present time, most do not want to lose parental status permanently.
The vast majority of the children in New York's custody, for example, have been placed there voluntarily by parents who could not care for them. Yet these children are among the thousands in whose cases the state seeks to terminate parental rights each year.
But it is the children for whom we as a society bear the greatest responsibility. Are they better off maintaining ties with their natural parents and siblings even if contact is infrequent?Or is it in their interest to sever such ties and begin new lives with adoptive parents? Is it ever better to terminate parental rights when there is little hope that the children actually will be adopted?
Stripped of the legal reasons for its ruling -- due process, burden of proof and states rights -- the Supreme Court's decision comes down to this: when the state wants to end a parent-child relationship it must make a very good case. The opinion doesn't tell us much about John and Annie Santosky today except that New York considers them fit parents for two of their children. We don't even know if they want to regain custody of the older children or if they simply want to keep that option open. We do know that they fought their way through the courts for six years to maintain that tie. The family court in New York now has the responsibility of applying the new standard to the Santosky's case. But all who believe that the involuntary and permanent loss of one's children is a penalty of epic proportion will not object because the state has to try a little harder this time.