4 Children’s Legal Rights Journal [Vol. 39: 1 2019]
forced legislators, courts and lawyers to place the child at the center of their thinking, not as chattel,
but as human beings whose lives were affected every day by judges’ decisions. 19
Goldstein’s work did not pre-ordain a scenario in which hundreds of thousands of children
would be placed in foster care. In fact, he was not an advocate for separating children from their
families based on their “best interests.” 20 His point was that child custody cases – whether private
matters between parents or those involving the state – should be handled quickly and with finality,
with due regard for the child’s sense of time. 21 To the extent that he was outcome driven, as
opposed to process driven, he favored children being placed with their “psychological parent” who
most often, but not always, was one of their birth parents. 22 In the new child protection landscape
that took off in the 1980s, the best interests concept became the legal standard used at critical
points in child welfare cases, but it was somehow transformed from its original meaning. I was
aware of this because I had the great fortune of taking a juvenile law seminar with Goldstein while
I was in law school. The year I took the class was the year he and his wife published a new edition
of their Best Interests trilogy. 23 He made a very strong point in class about the new subtitle: The
Least Detrimental Alternative. It was a point about humility – that judges, GALs, and anyone else
associated with “the system” could not deign to know what was best for a child. 24 The best we
could do was to come up with the choice that would hurt the child the least. 25 To the extent this
required foster care, it was most often the case that zealous advocacy for appropriate reunification
services and ample, safe family visitation best-suited my child clients. 26
While at Legal Aid, I was influenced deeply by two other thought leaders in child advocacy
who, unbeknownst to me, helped to move the entire field away from paternalism toward a more
authentic, child-centered approach to the work: Jean Koh Peters and Marty Guggenheim. I had
studied with Peters just as she was finishing her highly acclaimed book on representing children. 27
Peters taught that to be a true advocate for children, a lawyer must enter the client’s world, deeply
and repeatedly, understanding that young person in the context of her family, community, and
entire life experience. 28 With that richly textured knowledge, the lawyer could then either advocate
for the child’s wishes, or – if required by statute, rule, or unspoken norm – advocate for his or her
19 For an overview of Goldstein et al.’s influence on family law, see John Batt, Child Custody Disputes and the Beyond
the Best Interests Paradigm: A Contemporary Assessment of the Goldstein/Freud/Solnit Position and the Group’s
Painter v. Bannister Jurisprudence, 16 NOVA L. REV. 621 (1992).
20 Goldstein is quite explicit in favoring minimum state intervention. JOSEPH GOLDSTEIN ET AL.,, THE BEST INTERESTS
OF THE CHILD: THE LEAST DETRIMENTAL ALTERNATIVE (1996) [hereinafter THE LEAST DETRIMENTAL
21 THE LEAST DETRIMENTAL ALTERNATIVE, supra note 20, at 107.
22 Id. at 11.
24 Id. at xix-xx.
25 Id. at 50.
26 Chris Gottlieb & Erik S. Pitchal, Family Values: How Children’s Lawyers Can Help Their Clients by Advocating
for Parents, 58 JUV. & FAM. CT. J. 17 (2007). At the same time, the substantive law was also changing, in recognition
of the trauma that placement into foster care itself could cause a child. See Nicholson v. Scoppetta, 3 N.Y.3d 357,
378-79 (2004), in which the New York State Court of Appeals held that in ruling on emergency custody motions in
child protection cases, family court judges must balance the imminent risk to a child of remaining at home against the
harm of removal.
27 JEAN KOH PETERS, REPRESENTING CHILDREN IN CHILD PROTECTIVE PROCEEDINGS: ETHICAL AND PRACTICAL
DIMENSIONS (3rd ed. 2007) [hereinafter REPRESENTING CHILDREN IN CHILD PROTECTIVE PROCEEDINGS].