CHILDREN AND THE LAW HOBBS SPRING 2014
I. The Status, Rights and Obligations of Children
Book’s Three Major Themes: (1) delicate interrelationship of rights and responsibilities among children, parent, and government; (2) perceptions of children’s competence as a basis for parental authority and government regulation; (3) role of child’s lawyer
Childhood in America
1. Contemporary Conditions and Needs
a. Common Risk Factors for Children: Nutrition, poverty, educational opportunity and rights, parents in the workplace, products of divorce, etc.
b. Success indicates protective factors (internal and external), such as sense of autonomy, high expectations, sense of purpose, etc.
2. Contemporary Juvenile and Family Court Systems
a. Juvenile Courts: Specialized trial court devoted to various proceedings concerning children, including abuse and neglect; adoption; status offenses (conduct only sanctionable because minor); delinquency.
b. Unified Family Courts: Replaces juvenile courts in many states to enable one judge, with social workers and others, to resolve all matters associated with families.
c. Problem-Solving Courts: Used to complement juvenile or unified family courts, like truancy courts, juvenile drug courts, DV courts, mental health courts, etc.
The Law’s Evolving Conception of Children’s Status, Rights and Obligations
1. The Status of Childhood
i. When is a child a child? [doesn’t give adult status in all circumstances]
1. Age of majority in most states is 18 (19 in AL)(but drinking age=21).
2. Children under 18 can be emancipated.
3. Children can receive “adult” rights and obligations in different context (example: abortion).
4. Can be tried criminally as adults.
2. Balance of Rights and Responsibilities
i. Marbury v. Madison: If you have a right, you have a remedy. [Those rights comes with certain responsibilities.]
Rights and Liberty Interests:
1. Comes from 1st, 4th, 14th Amendments
a. 1st: “pure speech”à highest level of protection, particularly political speech
2. Often deals with notion of privacy (right to family autonomy)
3. Rights of Children: not shed at schoolhouse gate, but not co-extensive in same way as adults rights.
ii. Constant Tension: State ßà Parents ßà Child
1. State and parents both have responsibility for children’s welfare, but parents have right and state can’t interfere with that right UNLESS parens patriae kicks in because parent isn’t actin in child’s best interest:
3. Parens Patriae Doctrine, Parental Prerogatives, & Child’s Obligation to Obey
i. Parens Patriae Doctrine – Underlies much federal and state regulation in such areas as abuse, neglect, foster care, adoption, medical decision-making, support and delinquency. Gives the government the right and responsibility to protect people legally incapable of caring for themselves, including children.
1. Parens Patriae v. General Police Power – [2 sources of State’s Interests] Besides parens patriae authority, states may regulate children and the family under general police powers. Conceptually different: parens patriae confers state authority to protect or promote a particular child’s welfare whereas police power is the state’s plenary power to promote the public health, safety and welfare generally.
2. For parens patriae to kick in, state must:
a. Have a compelling interest (something serious that threatens health, safety, welfare, etc., not trivial) AND
b. Give some sort of due process (have parents to be heard, present evidence, etc.)
Child’s Obligation to Obey: At common law, children were expected to obey parents and “honor thy father and thy mother.” Expectation that children would obey their parents’ wishes regarding education and religion is implicit in Meyer and Peirce and in early SCOTUS decisions regarding parent’s 14A substantive due process right to direct their child’s upbringing free from unreasonable government intervention.
ii. Traditional Roles of Parents and the Government (p. 21)
1. Meyer v. Nebraska (1923) – Court struck down state statute that barred teaching in German to kids under 8th grade. Case involved teacher brought on charges rather than a suit brought by parent or child, State’s interest was promoting civic development by inhibiting training and education of children in foreign tongues and ideals before they could learn English and acquire American ideals (so that English could be “mother tongue” of the nation). Court: natural duty of the parent to give his children education suitable to their “station in life” that is encompassed by the liberty guarantee of the 14A. Statute exceeded the limitations on power of state by unduly interfering with this liberty interest. It’s okay to compel attendance and regulate schools, but state can’t prohibit teach other languages when it isn’t injurious to the health, morals, or understanding of the ordinary child (No compelling reason to interfere with the families).
a. Very little about children’s rights here; a little about state’s rights, mostly about parent’s rights to choose education for their children.
2. Pierce v. Society of the Sisters (1925) – Overturned Oregon statute that provided that parents could only satisfy education law by enrolling children in public school. As in Meyer, suit brought by school (not parent or child), but nonetheless recognizes right of parent to direct child’s education. State’s interest is compelling general attendance at public schools by normal children. School (pissed because children de-enrolling in school to comply) brought sought alleging that enactment conflicts with the rights of parents to choose where their children are education. Famous language: “[T]he child is not a mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
a. Also has little to do with children’s rights – more about parents’ right to control their children as if they were the property of the parent. Ironically these cases (Meyer & Pierce) have been used to do all sorts of liberal stuff – abortion, unwed fathers to have rights w/their children, contraception, Loving v. VA, etc. as McReynolds was very conservative.
iii. Movement Towards “Children’s Rights”
Post Meyer & Pierce, jurisprudence moved toward idea that children may have own rights in disputes with the government and perhaps even their own parents:
1. Prince v. Massachusetts (1944) – Here, finally a parent involved in lawsuit. Betty Simmons’s aunt and custodian was convicted for violating state child labor law by allowing her 9 year old niece to sell Watchtower copies (that night no one bought them but previously people had). Betty testified she believed it was her religious duty to perform this work and failure to do so would bring “everlasting destruction at Armageddon.” Court here ruled against guardian as valid use of state’s parens patriae power but re-affirmed “our decisions have respected the private realm of the family life which the state cannot enter.”
a. Context of this case – 1938, child labor laws passed so courts probably concerned about back-pedaling on that.
b. Children’s Rights – Prince established (and hasn’t been questioned) that children have rights that should be taken into consideration in matters concerning the child’s welfare. Central issues now are weight of child’s rights personally or through a parent or whether child’s claims may prevail over parental opposition. (Struggle for autonomy)
c. WV State Board of Ed v.
limited holding and does not apply to restriction of speech on any political or social issue including speech on issues such as “the wisdom of the war on drugs or of legalizing of marijuana for medicinal use.”
a. Reconciling Tinker and Morse? Tinker wasn’t advocating illegal activity as Morse was.
7. Schools and Drug Searches/Testing: State’s interest: preventing drug use in schools (discipline, health, safety)
a. New Jersey v. T.O.: Search must be justified at its inception and be conducted in a manner “reasonably related in scope to circumstances which justified the interference in the first place.”
b. Vernonia School District v. Acton: Random drug testing for athletes okay because intrusion on students’ privacy was “negligible;” gov’t concern was important and possibly compelling. (Limitation on children’s rts)
iv. Reconciling Parents’ and Children’s Rights (p. 66)
1. General Point of Reference: More fundamentalàlikely fundamental interest: strict scrutiny; Look like a safety issueàlikely issue of reasonableness
2. Troxel v. Granville (2000) – issue of third party visitation. Grandparent’s suing on Washington statute which permitted “any person” to petition a court for visitation rights “at any time” and authorized the court to permit such visitations when “visitation may serve the best interest of the child.” Paternal grandparents here (father committed suicide) wanted a lot of visitation. Washington SC held that statue unconstitutionally interfered with fit parent’s right to rear her children, including decisions concerning their care, custody, and control as a fundamental liberty interest, and SCOTUS affirmed, noting that wife was not cutting off visitation altogether.
a. Souter concurrence: Meyer’s repeatedly recognized right of upbringing would be a sham if it failed to encompass the right to be free of judicially compelled visitation by “any party” at “any time” a judge believed he “could make a better decision” than the objecting parent.
b. Thomas concurrence: says this can be based solely on Pierce which holds that parents have a fundamental constitutional right to rear children, including right to determine who shall educate and socialize them.
c. Stevens dissent: Focuses on the right of the child (“there is at minimum a third individual whose interests are implicated in every case to which the statute applies – the child”) Says while there is a strong presumption that parents will act in the best interests of the child, the TC must also balance “the best interest of the child.” “There may be circumstances in which a child has stronger interest at stake than mere protection from serious harm caused by the termination of visitation by a “person” other than a parent” and that DP clause of the 14A leaves room for the State to consider the impact on a child of possible arbitrary parental decisions that neither serve nor are motivated by the BIC.
d. Kennedy dissent: concerned that the parents resisting visitation have always been the child’s primary caregiver and that the TP who seek visitation have no legitimate and established relationship with the child.
