Use and Abuse of the Power to Sever Family Bonds


I will be until midnight tomorrow a judge of the Family Court of the State of New York. At least a third of the hundreds of cases I heard over the last three years required that I determine whether to transfer custody of a child; perhaps a sixth required that I decide whether to free a child for adoption without its parents’ consent.

I entered the job with a healthy respect for psychoanalytic theory. I had studied it briefly, had done some research in the field, and was predisposed to attend to the effects the unconscious and the imprint of childhood have on all of our lives. I was impressed by many of the ideas I found in the Goldstein, Freud, and Solnit volumes, and was fairly easily persuaded that a child’s need for a secure, continuous emotional environment should out-weigh the competing rights of adults.

The New York State legislature had acted, as had the legislatures of many states, to ensure that decisions about the custody and guardianship of children in foster care would be made with a concern for continuity. The legislative provisions establishing the relative rights of foster and biological parents stopped far short of the Goldstein, Freud, and Solnit prescriptions. Nevertheless, they were intended and were interpreted to require that action be taken to free a child for adoption—with or without the parents’ consent—whenever foster care had continued for a year or more without satisfactory progress toward return to the biological home. Courts and childcare agencies were increasingly prone to conclude that the child’s need for continuity of care by an autonomous parent figure required severance of biological ties, whether or not the child had an ongoing relationship with a surrogate parent who wished to adopt.

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