Cheating the evidence to get to best interest and the presumption of unfitness

• Published date: 01 October 2024
• Author: Jay D. Blitzman
• Date: 01 October 2024
• DOI: http://doi.org/10.1111/fcre.12828

ORIGINAL ARTICLE

Cheating the evidence to get to best interest and

the presumption of unfitness

Jay D. Blitzman

1,2,3

1

Harvard Law School, Cambridge, Massachusetts, USA

2

Northeastern School of Law, Boston, Massachusetts, USA

3

Boston College Law School, Newton, Massachusetts, USA

Correspondence

Jay D. Blitzman, Harvard Law School,

Cambridge, Massachusetts, USA.

Email: jayblitzman@gmail.com

Abstract

This article explores our national reactive child protection

model which has focused on removing poor people from

poor families and has resulted in conflating poverty with

neglect. Significant issues of class and race are implicated

given dramatic systemic racial and ethnic disparities and

questions must be asked whether current practices have

done more harm than good. In reviewing this landscape this

article is descriptive and prescriptive and calls for adopting

proactive public health-oriented policies which support chil-

dren and families in their homes and a culture of due pro-

cess and fairness in juvenile and family court hearings

involving children and their families. Dependency or abuse

and neglect cases involve state intervention. These are not

disputes between private parties where the sole focus is the

best interest of the child regarding which guardian to be

placed with. Cheating the Evidence warns against diluting the

constitutional requirement of proving the lack of parental

unfitness by clear and convincing evidence by making com-

parative judgments about placement which are based on

often subjective assessments on best interests of the child

which are resource based. Given that high percentage of

cases involving allegations of neglect versus inflicted abuse

these concerns are of paramount importance. There is a

need for more rigor in fact-finding and adherence to

DOI: 10.1111/fcre.12828

© 2024 Association of Family and Conciliation Courts.

818 Family Court Rev. 2024;62:818–832.

wileyonlinelibrary.com/journal/fcre