Iconoclast Michael Newdow on the Warpath Again

November 23, 2004

Michael Newdow, the lawyer/doc who exploited his daughter, of whom he did not have physical custody and who was herself a Christian, to fight the inclusion of “God” in the Pledge of Allegiance, is targeting another long-established tradition. Political Science professor, David Lewis Schaeffer, writing in National Review Online, says that Newdow is now on a crusade to change the settled law in all fifty states (as far as I know) that in child custody cases the governing standard is “the best interests of the child.” That is, the interest of the children will always be paramount over those of his/her parents.

Professor Schaeffer writes:

In an October address at New York Law School sponsored by the American Civil Liberties Union, Newdow objected to the “outrageous” and in his view unconstitutional judicial precept that child-custody issues be resolved according to “the best interests of the child.” That standard is unconstitutionally vague, according to Newdow, since no one knows whether it is better, for instance, to teach children to be generous or stingy, to study Shakespeare or play baseball, and because “there are no valid studies that answer the question of what is best for children.”

Most important to Newdow, perhaps, he challenged the best-interests standard as elevating the rights of children over those of parents. For many parents, he stressed, being separated from their children is “worse than rape.”

In one fell swoop Newdow serves up a composite of so much of what is wrong with modern society and its self-absorption. He affirms moral relativism, in effect, by arguing against the establishment of a reasonable yardstick in child custody cases and he bows to his narcissistic urges by suggesting that his (and similarly situated parents’ interests) ought to have parity with their children’s.

Professor Schaeffer puts it this way:

Michael Newdow exemplifies the dangers of the sort of fanatic individualism combined with moral relativism that American courts, in decisions on issues ranging from free speech and the establishment of religion to abortion and gay marriage, have encouraged in recent decades.

Exactly. As a lawyer Newdow should know better. If we do away with this standard in domestic relations jurisprudence then we might as well also do away with the reasonable man standard, which courses through so much of our law. If the “best interests of the child” is too vague a standard, so is “the reasonable man” standard, the measure by which, for example, juries are directed to determine an alleged tortfeasor’s negligence, or whether a contracting party complied with (or breached) a contractual provision. But Newdow has a personal dog in this fight, obviously, which is presumably why he targeted “the best interests of the child” standard for attack.

I used to practice a bit of domestic relations law and have had a few child custody trials. While I didn’t always agree with the decision, I never for a moment considered that the “best interests of the child” was an inappropriate or vague standard. Nor did I ever experience a judge applying it arbitrarily on such superficial questions of baseball versus Shakespeare. Judges would always look to see how the child was being raised, considering health and safety concerns, education, the home environment, the relationship with parents, stepparents and siblings, the fitness and stability of the respective parents and the like. Newdow, in suggesting there’s a potential dichotomy between athletics and academics, is imposing a false choice. Rarely are home environments so monolithic.

But Newdow reveals the extent of his twisted mindset when he leaves open the question of whether it is better to teach a child to be generous or stingy. I’ve never run into anyone within or outside the context of a custody dispute who would make such an inane, nihilistic comment. I dare say that if nothing else, Newdow, through his latest quixotic quest, is demonstrating his own unfitness as a custodial parent.