Giacopelli v. Florence Crittenton Home

Mr. Justice Klingbiel, concurring: While I agree that custody should remain with respondents in this case, I think some contours should be given to the nebulous phrase “best interests of the child.” To deprive natural parents of their child, in my opinion, requires more than someone else’s idea of what is best for it, even if that someone else is a court. The test followed here, if it is a test in any sense of the word, does not gain meaning by mere repetition, nor do its words express limitations characteristic of our traditions in the role of government. Under its sanction the wholesale removal of children from parents, and their placement in State-controlled institutions may, under some conceptions of government, be justified as being in accord with their “best interests.” The terms “welfare” and “best interests,” however pleasing may be their sound, afford little in the way of a guide. Where the issue is fitness, the character, behavior and circumstances of particular individuals provide boundaries within which evidence can be confined and with respect .to which rational decisions can be made. Where the issue is nothing more specific than welfare, the range of inquiry is virtually unlimited, with corresponding room for arbitrary or personal decision.

Contrary to the pronouncement in the majority opinion, I think it is necessary that parents be found unfit before their child may be taken from them against their will. Indeed, the specific reasons given by the court for its decision — aside from the bare declaration that the child’s welfare will best be served thereby — all concern the fitness of its parents. The decision is correct because the evidence clearly shows unfitness, not because the circumstances in respondents’ home may be preferable to those of the natural parents. There is hardly any infant who could not be said to benefit, in some respects at least, by removal to someone ideally suited for parenthood. In almost every case persons other than the parents can be found who may be in better circumstances to raise it, may hold greater affection toward it, and may possess more intelligence not only in affording educational and material advantages but in fostering in the child a sense of responsibility, with a mature capacity to meet the problems and experiences of life. Viewed in isolation, the welfare of almost any child could be promoted by taking it from careless, irresponsible or overly protective parents and giving it to some one more qualified to care for and guide it and to supervise its growth and development. It is not enough, however, that as a matter of fact the child’s interests would be better served by placing it in the custody of strangers. In applying the welfare test, the natural instincts of love, care, and interest which parents bear for their child outweigh whatever shortcomings they might have in comparison with strangers, and it is only where they are proved to be unfit to have the custody of children that a court will deprive them of it. (People ex rel. Yarmulnick v. Hoff, 323 Ill. App. 535 ; Wohlford v. Burckhardt, 141 Ill. App. 321 .) Their right is superior to that of any other person when they are fit, materially, morally and emotionally, to have the custody of children; and courts should not curtail that right upon slight pretext, or where there is merely a difference of opinion as to the best course to pursue in raising the child. (Lindsay v. Lindsay, 257 Ill. 328 .) It is only when they are unable or unwilling to give it the care, affection and support it should receive that a court may remove it to a more suitable environment. See Ekendahl v. Svolos, 388 Ill. 412, 414-415 .

For the reason that the petitioners in this case have shown themselves unfit for custody of the child, I concur in the court’s decision.

Schaefer and House, JJ., join in this concurring opinion.