Children or chattels

Tragedy is the currency of family law, particularly in child custody disputes. A recurring nightmare in the popular press of recent years has been the tragic scene of foster or adoptive parents and a natural mother each pleading with some court for exclusive custody of an infant. Curiously, however, the ob­ject of concern, the child, is con­sistently upstaged during the legal drama by the other litigants.

The decisions of the New York Court of Appeals in the early 1970s reiter­ated and reinforced the traditional position of the New York Court of Appeals which subordinates the “best interests” of the child to the preservation of some inchoate right to custodial possession of the child vested in the status of biological parent.

While New York does follow the “best interests” of the child test in determining custody dis­putes between parents, in a contest between natural par­ents and “non-parents” the burden is upon the “non-parent” to prove that the natural parent is “unfit” since the Court of Appeals seems to hold that as a matter of law, natural parents have “superior,” “inherent,” and “fundamental” rights to their biological children

The authors assert the rights of the living child free of his mother’s womb as an inde­pendent human being, a United States citizen and a citizen of at least one of the several United States, and suggest protection of the natural human rights of the child under the Ninth, Thirteenth and Fourteenth Amendments of the Constitution of the United States and the common law of equity.