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Children & the Law
Stetson University School of Law
Ellis, Tracy

Children and the Law
fundamentals of children’s rights
Children as citizens
Ø      Parents job is to take care of all of these needs. Const says it is the parents responsibility and right to take care of their children’s needs – safety, security, health, etc.
Ø      Where do children’s rights fit into this dynamic…do children have rights? Natural rights – safety and security. Kids have legal rights unless and until those rights go head to head w/ their parents’ rights.
1)    Freedom from discrimination and poverty – environmental rights
§         these are theoretical rights
§         not very actively pursued/exercised
2)    Right to protection from adults
§         actively pursued
§         child pornography laws, abuse and exploitation, etc.
3)    Right to be treated the same as adults
§         largely disputed
4)    Right to act independently of parental control and/or guidance
§         offshoot of #3.
Ø      Underlying assumption – kids do not have the knowledge or common sense to know what is best for them, and assuming they did, kids do not have impulse control.
Ø      What business is it of the State how parents raise their children? Society’s goal is to have productive, contributing members. We have to make sure our kids are productive, intelligent, and contribute. To be productive and contribute, children must be safe, secure and fed. To be intelligent, kids need to have an education. So, the state has an overriding interest to make sure parents do their job to ensure society can function.
Ø      Abuse, neglect, abandonment, health of children are all areas where the State will step in and exercise its authority to protect the welfare of children.
Right                             vs.
State (Authority)
Ø   Parents/kids
Ø   Parents have natural and legal rights; very fundamental and hard to encroach on their rights
Ø   Kids have natural rights, but have legal rights UNLESS or until that right goes head to head w/ their parents
Ø   Responsible for making sure parents do their job and that the State doesn’t overstep their bounds
Ø   Legal stnd = best interest of the child (another gray area b/c who decides what “best interest” means this is where child advocacy comes into play b/c it is up to the litigator to persuade the judge of their def of best interest
parental authority
Ø      Why do we care about parental rights?
1)    Everybody is one, was one, or wants to be one and nobody likes the idea that someone will swoop in and tell you what to do with your children.
2)    We founded this country on the principle of privacy and the govt should stay out of individual’s private business. Govt is only there to assist, not run individual business.
Ø      Children are impacted by what is around them and what happens to them. 
Ø      State has an interest in productive adults. The state has an interest in making sure that children are raised in a good environment and keeping children out of bad environments. Why? So we can be taken care of in our old age.
Ø      The biggest negative impact on children is poverty.
1)    We as a society are not doing enough to fund education or eliminate poverty.
2)    We can assume that children living in poverty are not getting adequate food and shelter.
3)    We can assume that children living in poverty are not being supervised as closely b/c parents are likely working multiple jobs and/or long hours.
4)    Children living in poverty are not getting good education.
5)    Children living in poverty are not participating in extracurricular activities.
6)    Parents living in poverty have at least 3x harder time providing a good environment for their children to be raised.
Ø      State interest in productive adults – two options: 1) parens patriae 2) police power
1)    parens patriae – to promote or protect a particular child’s welfare. It means kid by kid. Ex. Abuse, neglect, abandonment cases. State will step in and intervene b/t the parent and child relationship.
2)    Should the govt have a voice in determining how parents care and raise their children when it comes to:
§         abuse, neglect, abandonment? Yes
§         contributing to delinquency of minor? Yes arg – teaches child bad habits. Impairs decision making of children which can lead to other unhealthy outcomes.   No arg – teaches children to act responsibly. It crosses the boundary when parents hold the party and contribute to the delinquency of other minor children.
§         smoking? No and Yes args. You let kids smoke, they are only hurting themselves
§         medical decisions? 
§         education?
§         religion? think of religions where the old men are marrying the very young girls. or “whackado” religious practices. Sometimes you have to wait for the abuse to occur BEFORE the state can get involved. or wait for the abuse, neglect, abandonment to be imminent danger.
3)    Where does the privacy right fall – is it the act itself that should be deemed unacceptable vs. location of the act?
§         spanking.
4)    police powers – state’s inherent power to promote public health, safety and welfare, generally. Group.
§         smoking restrictions
§         driving restrictions
Ø      Another way to describe children’s rights. American Humane Association was the first group to protect children’s rights. The State wouldn’t get involved when a little girl was not being protected from her parent’s abuse b/c the child was considered property of the parents. American Humane Assoc describes children rights two ways:
1)    Rights of choice – active rights. Require rationality for their good exercise. Require action by the right-holder to be enjoyed. Actor must have capacity – must be capable of m

the beginning of a period of more liberal interpretation of due process; specifically, the Court recognized consciously that it had allowed the Fourteenth Amendment to apply to entities other than individuals, and had broadened the list of liberties or rights which it protected. Over the course of the next half century, that list would be extended to include the right to marry, to have children, to marital privacy, to have an abortion, and others.
Ø      State had an Act that required parents to send their children to public schools
Ø      Interesting Point = Parents were NOT the petitioners…it was the private educators that sued
Ø      What was the state’s legit interest? Education, but the way they went about it was not reasonably related b/c the children were getting educated privately.
Ø      Quote: The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled w/ the high duty, to recognize and prepare him for add’l obligations.
Prince v. Massachusetts pg. 11 1944
Ø      Aunt was custodian of 9 yr old girl. Aunt and niece sold magazines for Jehovah’s Witness on the strict. The Aunt was permitting the girl to work contrary to child labor laws.
Ø      State interest vs. parents rights; State won
Ø      Legit state interest? come on….appears that the state was biased against Jehovah’s Witnesses
Ø      Interesting case, b/c it involved a guardian’s rights over the child.
Ø      PP = It is in the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens.
Ø      Who is a parent?
o        Biological
§         Parents get the full enchilada of rights
§         Participative parents who are doing the best that can gets the full enchilada of rights BUT a NON-participative parent who is doing a shitty job raising a child, still gets the parental rights even though they are not responsible.
o        Legal (Adoption)
§         get the full enchilada
o        Guardian
§         When you have guardian you still have biological parents
§         Get very limited rights
§         Think of grandparent who takes care of the child but doesn’t get the full enchilada as an acting parent.