Sunday, May 09, 2021

Judge cites "best interests" to take down flag

From a family court case:
Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. ... As such, while recognizing that the First Amendment protects the mother's right to display the flag, if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.
This is where we are headed. Autocratic judges use crazy excuses and bogus laws to run peoples' lives.

There re mny things wrong here. A judge should not be imposing his political opinions. There is no good reason for judges to involve themselves with this silliness. Something "continued" is not "change in circumstances". A threat to change child custody should not be used for other policy goals.

A comment explains that even the underlying child custody law is hopelessly broken:

I’ll mention in passing that “the best interests of the child” is a really bad legal standard as a policy matter.

In the first place, in a normal unbroken family “the best interests of the child” is never, and properly never, the standard. There are all sorts of other interests to consider, and to be weighed and balanced – such as the interests of the parents, the other children, the grandparents, the neighbors, the children’s friends, the children’s friends parents. Family life simply does not operate on the basis of “the best interests of the child” – nor should it, nor could it.

Is Dad’s new job in North Carolina to be nixed because it disrupts the children’s schooling ? Maybe, maybe not, but it’s certainly not going to be decided on the basis of “the best interests of the child.” It’s going to be decided based on the reasonable interests of the family as a whole, as valued, weighed and balanced by the parents.

Secondly any standard of “best interests” taken literally requires the judge to defer to his own opinion of what is in the child’s best interests. There may be 12 different possible courses of action, which the judge may categorise – in his own scale of values – as :

1. the best course of action (1)
2. other excellent courses of action (3)
3. other reasonable courses of action (4)
4. unreasonable courses of action (4)

A sensible legal standard would be to allow the judge to substitute his own opinion for the opinions of the parent, only where the parent’s proposed course of action is unreasonable. That allows the parent to choose any reasonable (or excellent) course of action, and dissuades judicial megalomania.

But “the best interests of the child” has only one possible answer. The “best” one. Even if the judge thinks the parent’s choice is an excellent one, so long as the judge thinks there’s a better one, he substitutes it. Going back to Dad’s North Carolina job, Dad and the judge may weigh the benefits of extra family income, a more outdoor lifestyle, and cheaper housing as better for the family than the judge does. But it would be totally unreasonable for the judge’s weighting to trump Dad’s in a case where Dad’s plan is perfectly reasonable, if not “the best” according to some other people’s valuation.

The “best” is the enemy of the reasonable, and a dangerous inducement for judges to encroach in family decisions when encroachment is unnecessary and undesirable.

That's right. Saying "best interests" or "best interest" is hopeless and undesirable.

Here is a rant against the above decision on a family court blog. I am not sure about the ethnic analysis there, but if you give judges too much power, then you can expect their personal prejudices to apply.

It is crazy to give judges power over "best interests" to arbitrarily micro-mnges peoples' lives. But if you do, then I think you need to check the religious values of the judge given that discretion, becuse he will be imposing his personal values on others.

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