The idea that individuals have rights springs from the vulnerability of every human being in the face of stronger forces. Our Declaration of Independence and Constitution are based on the idea that the purpose of government is not to protect the elite, nor to facilitate greed or self-interest nor to promote a religious group’s agenda. Its purpose is to guarantee certain inalienable human rights for all people including our nation’s posterity… our young citizens.
Most of us presume that parents have rights that give them exclusive power over their children, especially newborn babies. But the need to specify those rights only arises when things go wrong in families and in child-serving institutions. Unfortunately, the emotionally charged issue of parental rights arises quite often today. Parents compel state intervention when they neglect and abuse or dispute custody of their children. Minors give birth. Too many child-serving institutions are overburdened and unable to function effectively.
Even defining who is a parent can be complicated. With surrogate birth and artificial insemination, defining a mother and a father can be complicated. By eliminating the ambiguous term “natural parent” from its rules for establishing a legal parent-child relationship, the Uniform Parentage Act encourages courts to focus on the precise relationship a female or male has to a child. Is the relationship of each mother and father: 1) genetic, 2) birth (mother only), 3) functional, 4) stepparent, or 5) adoptive? A single child could have as many as nine different persons legally recognized as a parent by adding 6) foster, 7) step, 8) surrogate and 9) sperm or egg donor.
Parental Rights Because of their obligations to their children, parents need rights or prerogatives to protect and fulfill the human rights of their children. Unfortunately, contemporary talk about human rights usually emphasizes the rights to benefits and overlooks the responsibilities that accompany those rights.
In the past, children have been treated as the personal property of their parents. Under Roman law, the patria protestas doctrine gave fathers life and death power over their children. To this day, the popular presumption is that children belong to their parents.
In contrast, since The Enlightenment of the Eighteenth Century, parenthood in Western cultures has been seen as a contract between parents and society by philosophers and evolving legal codes. Parents are awarded rights in exchange for discharging their responsibilities.
John Locke in the Seventeenth Century and William Blackstone in the Eighteenth Century held that parental rights and powers arise from their duty to care for their offspring. They recognized that no society can survive unless its children grow up to be responsible, productive citizens. Children also have the right to be raised without unjustified interference by the state. Taken together, these rights are called the right of family integrity. Both Locke and Blackstone held that, if a choice is forced upon society, it is more important to protect the rights of children than to protect the rights of adults.
Every man and every woman has a natural and Constitutional right to procreate. This principle could be reasonably applied when the onset of menarche was between sixteen and eighteen. Now that menarche appears on average at the age of twelve, we must ask if every girl and boy has a natural and Constitutional right to procreate. In the light of this question, the need for careful thought about parental rights and responsibilities is intensified.
The Child-Parent Relationship James Garbarino, professor of psychology at Loyola University Chicago, points out that parental rights are influenced by personal and public views of child-parent relationships. Are children: • the private property of parents, • members of families with no direct link to the state, or • citizens with a primary relationship with the state?
Children as Private Property Parental rights have become the most protected and cherished of all Constitutional rights. They are based on the natural right to beget children and the likelihood that affection leads parents to act in the best interests of their children. The Fourth Amendment’s protection of the privacy of the home and the Fourteenth Amendment’s due process clause are interpreted to give parents legal and physical custody of their children. The popular presumption that children are the property of their parents therefore is understandable.
In the 1995 Congress, a Parental Rights and Responsibilities Act was introduced. It would have created a Constitutional amendment specifying absolute parental rights. It didn’t gather support because the legal system already respects parental rights. It also would have made protecting children from neglect and abuse more difficult.
In spite of strongly held beliefs to the contrary, the legal system no longer considers children as property. There even is a genetic basis for the legal position that parents do not own their children. The genes we give them are not our own. Our own genes were mixed when they were transmitted to us by our parents. Our genes are beyond our control. We really do not own them. They extend back through previous generations and potentially forward into future generations. We are only the temporary custodians of our own genes and of our children.
Mary Lyndon Shanley, professor of political science at Vassar College, holds that an individual’s right to reproduce and a parent’s wishes cannot be the primary foundation of family law. The primary focus must be on children’s needs and interests. The parent-child relationship is one of stewardship. Parental authority involves responsibilities beyond the parent’s own wishes.
What’s more, our legal system is based on the principle that no individual is entitled to own another human being. Guardians of incompetent adults are agents, not owners, of those persons. In the same way, the childrearing rights of parents consist of 1) the guardianship right (legal custody) to make decisions on behalf of a child and 2) the right to physical custody of the child. These rights are based on a child’s interests and needs rather than ownership of the child. We certainly do not own our children.
Children as Family Members Children are generally regarded as family members with no direct link to the state. The concept of parental rights sprang from traditions and Constitutional precedents that endow genetic and adoptive parents with special rights.
Parental rights are legal prerogatives based on the moral and civil rights of children to be nurtured and protected. They are based on the assumption that parents can best decide how to raise a child without undue interference by the state. Without a voluntary or involuntary forfeiture of parental duties, the state cannot permanently remove children from their parents’ custody to seek a better home for them unless there has been a legal termination of parental rights.
Children as Citizens Two trends have added the view of a child as a citizen. The first is the growing emphasis on the right of children to grow up without neglect or abuse. The second is increased limitations on parental control seen in child neglect and abuse laws, child labor laws, mandatory education laws, adolescent health care policies and parental responsibility laws. When parents do not fulfill their responsibilities, child protection services intervene and governmental agencies can assume legal and physical custody. Then the child’s primary relationship is with the state as custodian.
Like other guardians, parents have the legal prerogative to make stewardship decisions. Society generally defers to their authority. The challenge is to encourage parents to act in the interests of their children rather than in their own selfish interests. Toward this end, lawmakers rely on persuasion and education to help parents fulfill their obligations. Because they are unresponsive to persuasion and education, some parents require legal interventions before and after a baby is born.
The Parent-Society Contract James Dwyer, professor of law at William and Mary University, affirms that parental rights do not have a direct Constitutional basis. The emergence of children’s rights reflects this position; our society has progressively and empirically limited the control parents have over their children’s lives.
Dwyer endorses the Enlightenment view that persons who conceive and give birth enter an implicit contract with society to raise their children as responsible citizens. Damage caused by maltreatment extends beyond the individuals involved and gives our society a compelling interest in the wellbeing of our young.
Mark Vopat, professor of philosophy at Youngstown State University, also holds that a parent’s obligations derive from an implicit contract with the state beyond the child. This parent-society contract provides a strong moral imperative for public efforts that ensure every child’s safety and quality of life. Since a contract implies mutual obligations, the parents and society are accountable to each other. The government’s role is reflected in debates about:
• Child wellbeing. Is it an entitlement? A privilege? A tool for social control? The trend is to view it as an entitlement. • Adolescent childbirth. Who has legal and physical custody of a minor’s newborn baby? Strictly speaking no one, but relatives and government policies support minor parents by default. • Financial support. Is financial responsibility for a child purely a private matter or a public responsibility? Both. Federal and state laws mandate childrearing benefits in addition to financial child support from parents and sometimes grandparents.
In the parent-society contract, government plays a vital role in supporting parents in rearing children and preventing maltreatment. The intimacy involved in family relationships can’t be provided by the state. It’s the duty of families to rear children. Still, state and local governments are responsible for providing schools and safe neighborhoods to support childrearing. They can provide health insurance, tax deductions and welfare benefits as well.
Parents really do not need specifically defined rights. They have prerogatives that flow from their children’s rights. Unfortunately, parental prerogatives and children’s rights do not fit well in contemporary society. As examples, workplaces offer little accommodation for parents’ childrearing duties, and, when children are held indefinitely in supposedly temporary foster care, their right to competent parents is unfulfilled.
Public policies must recognize that children have the right to be cared for by persons with an enduring commitment to, and the capacity for, parenthood. Public policies also need to recognize that in the parent-society contract, society must ensure that parents have access to essential childrearing resources. The parental rights debate would be resolved by shifting it from children as property to parenthood as a career. Parenthood is a parent-society, contract-based career with prerogatives derived from the responsibility to nurture a child and to advocate for the child’s interests.
Being the loving mother or father of a child does not necessarily mean that one is qualified for legal and physical custodial rights. Parental love is insufficient for healthy child development. A minor or developmentally disabled person can be a loving mother or father without having parental rights. Persons even remain a mother or a father of a child after parental rights have been terminated and other parents have assumed motherhood and fatherhood roles through adoption or kinship care.
The Rights of Mothers The laws of every state give the woman or girl who conceives and bears a child automatic recognition as the legal mother. Giving birth follows the physical relationship formed during pregnancy. These laws reflect an appropriately strong bias in favor of birth mothers, especially those who care for and form attachment bonds with their babies. This is complicated by surrogates who are not genetic mothers but who have a prenatal physical relationship with a newborn.
States seldom challenge genetic/birth motherhood unless compelling circumstances arise, such as a Child in Need of Protective Services petition filed before childbirth. Even in such cases, a newborn baby may be placed in foster care under state custody with the intention of rehabilitating the genetic/birth mother. This intent usually is not realized. A similar situation exists with children whose mothers are incarcerated with the expectation of maintaining the mothers’ custody of their children. A 2009 study by Volunteers of America revealed that after release of their mothers from prison 81% of their children remained with their caregivers and did not live with their mothers.
Women and girls who give birth can decline parenthood by voluntary revocation of their parental rights through a Termination of Parental Rights proceeding to allow for adoption. Paradoxically, implicit recognition that minors do not have the judgment required for parenthood is reflected in the fact that minors require a guardian ad litem in order to terminate their parental rights and an adult or institutional payee to receive Temporary Aid to Families with Dependent Children benefits. An involuntary Termination of Parental Rights can be initiated after reasonable efforts to help parents meet return conditions have failed. Mothers’ parental rights also can be terminated automatically at childbirth under circumstances such as previous involuntary terminations or murder of a sibling. In some states, third parties like foster parents can petition for the termination of genetic parental rights.
The Rights of Fathers Unlike maternity, substantial Constitutional guidance has been provided for states in determining paternity. States must insure that men have the opportunity to seek to establish paternity. A genetic connection and a relationship with a child (or the effort to establish one) are necessary for Constitutional protection of a paternity claim.
To claim parental rights, males must register with putative father registries within varying time frames. Agencies are required to notify putative fathers of the mothers’ adoption plans. Questions arise about the feasibility of making fathers aware of their need to register. In situations where genetic fathers don’t want to acknowledge fatherhood, state agencies try to establish paternity through genetic testing, other biological evidence or acknowledgement by the mother or the father in order to seek child support payments.
A father’s genetic tie can be overridden when a child’s interests are better served by a man who is married to the mother and who has established a relationship with the child. In the 1989 U.S. Supreme Court case Michael H. v. Gerald D., the genetic father of a child produced during an adulterous relationship was denied paternity in favor of the father who was actually raising the child.
Parental Liability The common- law doctrine of parental immunity has maintained that, in the absence of willful and wanton misconduct, children cannot sue their parents for negligence. In response to the magnitude of child neglect and abuse, most states and courts are beginning to define parental liability. As long ago as l963, an Illinois Appeals Court heard Zepeda v. Zepeda in which a child sued his father for having caused him to be born out of wedlock. Although that suit was unsuccessful, it raised the issue of a child’s legal right to be wanted, loved and nurtured… in essence, to be competently parented.
Children have successfully sued their parents for negligence and have brought actions against third parties who alienate a parent from the family. In l992 in Orlando, Florida, eleven-year-old Gregory Kingsley legally “divorced” his mother so he could be adopted by his foster parents.
The Parens Patriae Doctrine The most significant fact justifying state involvement is that children do not choose the families into which they are born. The parens patriae doctrine justifies state intervention as a part of the parent-society contract. Parens patriae is Latin for “father of the people.” The doctrine grants the inherent power and authority of the state to protect people who are legally unable to act on their own behalf. It gives state courts the ultimate power to terminate parental rights and is based on three assumptions:
• Childhood and adolescence are periods of dependency and require supervision. • The family is of primary importance but the state should play a role in a child’s education and intervene when the family fails to provide adequate nurturance, moral training or supervision. • When parents disagree or fail to exercise their authority, the appropriate authority to determine a child’s or an adolescent’s interests is a public official.
The parens patriae doctrine empowers the state to compel parents and minors to act in ways that are beneficial to society. It never presumed that the state would assume parenting functions. Instead, the state is responsible for protecting the best interests of children under the guidance of two principles:
• The wellbeing of society depends upon children being educated and not being exploited. • A child’s developmental needs for nurturance and protection are defined by child neglect and abuse statutes.
A 1985 decision by Canada’s Supreme Court made a child’s welfare paramount in disputes between genetic parents and third parties. In King v. Low, the Court stated that although the genetic parents’ claims would receive serious consideration, they must give way to the best interests of the children when the children have developed close psychological ties with another individual. This view is taking hold in American courts as well.
Our legal system distinguishes between what parents can do to themselves and what they can do to their children. For example, parents can refuse essential medical treatment themselves but usually aren’t allowed to do the same with their children. They also aren’t permitted to physically harm their children, nor can they allow children to physically harm themselves.
Parents who fail to provide a minimum level of care, who abandon their children or who fail to provide supervision can be found guilty of neglect. Parents who physically, emotionally or sexually abuse their children can be found guilty of abuse. Parents who have been convicted of a serious crime, who abuse drugs or alcohol or who cannot meet return conditions after their children have been removed can be found unfit as parents. When persons cannot be persuaded or educated to become competent parents within a certain period of time, parental rights can be terminated to enable adoption.
State Liability Despite the parens patriae doctrine, the liability of the state if it does not protect minors has not been clearly defined. In l989, the U.S. Supreme Court ruled in DeShaney v. Winnebago County Department of Social Services that the state is not required by the Fourteenth Amendment to protect the life, liberty or property of its citizens against invasion by private actors.
Joshua DeShaney suffered brain damage from repeated beatings by his father at the age of four. As a result Joshua was expected to remain institutionalized for life. The U.S. Supreme Court rejected arguments that the state had a duty to protect Joshua because it once placed him in foster care and later because social workers suspected he was being abused by his father but took no action. It held that only “when the state takes a person into its custody and holds him there against his will” does the Fourteenth Amendment due process clause require officials to take responsibility for the individual’s safety and wellbeing. At the same time, the Court did not rule out the possibility that the state acquired a duty to protect Joshua under tort law.
An appellate court in California upheld a local court’s dismissal of a suit by a seventeen-year-old who alleged damage by mismanagement of his adoption as a newborn:
At the age of 17, Dennis Smith filed a complaint against the Alameda County Social Services Department alleging the agency was liable for damages because it failed to find an adoptive home when his mother gave him to the Department for the purpose of adoption shortly after his birth. The Department placed Dennis in a series of foster homes, but no one adopted him.
Dennis claimed that the Department negligently or intentionally failed to take reasonable actions to bring about his adoption. Therefore, he was deprived of proper and effective parental care and guidance and a secure family environment. Dennis alleged that this caused him mental and emotional damage.
The dismissal of Dennis’ complaint was upheld in appellate court on a number of grounds, including the difficulty in directly linking his damage to the failure to arrange for his adoption. The court implied that liability could result with more convincing links between early life experience and later outcomes.
Cook County, Illinois, settled a claim out of court by an eighteen-year-old boy over the negligence of county social workers. In this case, the link between professional practices and damage to Billy Nichols apparently was made effectively:
In December of 1981, attorneys for the State of Illinois and Cook County paid $150,000 in an out-of-court settlement of a suit of a former dependent child, Billy Nichols, who had been entrusted to the child-welfare system and later as an adult sued the county social service agency for the negligence of social workers that kept Billy dependent and unfit to live in society.
On September l9, l960, Billy and his seven-month-old sister were abandoned by their mother and found eating garbage behind a skid-row mission in Chicago. Billy’s age (approximately five) was unknown, and his speech was unintelligible. He was sent to an institution for the retarded in Michigan for four years. After a subsequent stormy foster-home placement, he was placed in Cook County’s juvenile security prison for nearly three years, although the superintendent repeatedly petitioned the court to remove him.
In l969, a legal aid lawyer, Pat Murphy, filed a class-action suit to release dependent and neglected children from prison on behalf of Billy. At 14, Billy was transferred to Elgin State Hospital, where he ran away ten times and was committed to the Illinois Security Hospital at Chester at the age of 18. Three years later Attorney Murphy intervened to enroll Nichols in a psychiatric program for two years, until he was jailed for car theft.
Lawsuits continue to attempt to redress the adverse impact of foster care. Class action suits have been used to force improvements in child welfare services. In 1993 a class action suit was filed by the American Civil Liberties Union and the Children’s Rights Project, Inc., against Milwaukee County and the state of Wisconsin for failing to adequately protect children. In response, the duties and authority of child welfare services were transferred from the county to a state Bureau of Milwaukee Child Welfare.
The Right to be a Competent Parent To say that a parent has a right to be competent might stretch the notion of rights too far. However, the logic for this right in our society is compelling and worth considering.
First of all, by definition the child-parent unit is irreducible. One half of the unit is a parent, and one half is a child. The interests of children and the interests of parents are inseparable, and both derive from a child’s goal of responsible citizenship.
When parents face dangerous environments, poverty, unemployment, illness or mental incapacities, their children inevitably face the same problems along with the risk of incompetent parenting. If children’s interests are to be fulfilled, the interests of parents must also be taken into account. If children have a moral right to be competently parented, then parents have a moral right to be competent if they are not under the legal or physical custody of others.
A second reason is that the integrity of society itself depends upon competent parents. Incompetent parents threaten the stability of society and incur enormous public costs. Therefore, in this view becoming a competent parent deserves the status of a right.
Third, human beings have a genetic predisposition to parent competently in order to ensure the survival of our species. The goal of the reproductive cycle is parenthood, not just procreation. Conceiving and giving birth initiate parenthood as the fruition of the parents’ own developmental stages of childhood, adolescence and adulthood. In the most fundamental sense, competent parenthood fulfills the role of a woman or a man in the reproductive cycle. In order to preserve humanity and our society, adults have a right to fulfill their reproductive and parental potentials and for the state to help them become competent parents when possible.
Balancing the Rights of Parents and Minors The essence of childhood at the beginning of the Twentieth Century was its dependency. Competent parents respected this dependency by judiciously exercising their authority. In the second half of the Twentieth Century, parental authority declined. As a result, childrearing has become a negotiation between parent and child with state and other agencies monitoring the process.
In the past, children were assumed to have capabilities we now rarely think they have because their labor was needed to help a family survive. In our efforts to give our children enjoyable childhoods, we tend to downplay their developmental need to assume responsibilities and obligations. Much confusion about adolescence is caused by stressful conflicts between adolescents’ rights and their obligations to their parents. This highlights minors’ responsibility to accept parental authority and to cooperate with their parents.
In some ways, the contemporary adolescent quest for independence represents a return to the time in which childhood did not extend beyond fourteen. The difference is that in earlier centuries persons were economically productive at the age of fourteen and were not capable of reproduction whereas now they have an increasing number of years, often beyond adulthood, before they become economically productive.
The shift in power from adults to children and adolescents has emotional and economic repercussions. Parents may now look to their offspring for emotional support and give them excessive material goods that stress family finances. This shift includes the ability of children and adolescents to bring legal proceedings against their parents for alleged abuse without justification. All of this has eroded parental authority. This trend toward overindulgence is further abetted by the exploitation of adolescents as consumers.
Although our tradition of individual autonomy has largely kept government out of the family, the law is moving toward defining the limits of parental power. The Juvenile Justice and Delinquency Prevention Act of 1974 removed “status offenses” of incorrigibility and running away from juvenile delinquency. They are now regarded as related to inadequate or inappropriate parental authority rather than as acts stemming solely from the adolescents. The focus has shifted to therapeutic interventions.
When family matters are brought into the legal system, the interests of children, parents and the state need to be carefully identified and balanced to determine the appropriate rule of law.
Valuing the Parental Rights of Competent Parents If all parents and child-serving institutions served children’s developmental interests, the issue of parental rights seldom would be raised.
Parental rights are no longer based on the presumption that children are property. Legal and physical custodial rights enable parents to discharge their responsibilities in a parent-society contract that provides a strong moral imperative for public efforts to ensure children’s safety and quality of life. Parental rights really are prerogatives essential for discharging the duties of parenthood.
A shift from the rights of parents to the best interests of children has gradually emerged in our courts. Parents who fail to meet specified conditions can have their parental rights terminated to permit adoption of a child. Most states have set aside the parental immunity doctrine so that children can sue their parents under certain circumstances.
We can balance the interests of children, parents and the state if we truly value competent parents.