Major Themes
1. The interrelationship of rights and responsibilities among children, parents, and the government
2. Perceptions of children’s competence as a basis for parental authority and government regulations
3. The role of the child’s lawyer
Historical Development
1. Children were the property of their parents and there were no other legal protections in place.
2. Development of the Foster System and Juvenile Court System
a. The Children’s Aid Movement began in NYC
i. The idea was to provide the children with a change to get nourishment, schooling, and nurturing and so a juvenile facility was created to replace a jail.
ii. The reasoning was that children could be reformed and so would stay for an indeterminate amount of time (each child would be unique)
iii. Ordinary adults would step in and take the role of parents to these children
iv. In order to better the facilities, the movement took the children out of the city and moved them to the west with “orphan trains”
1. From 1890-1920, 250,000 children were moved
v. The dockets became jammed so in 1899 Illinois created a separate juvenile court system
3. Development of Child Protection Laws
a. Abuse and Neglect
i. Mary Ellen Wilson was an abused and a report eventually made it to the authorities, but there was nothing under the law that would protect her because children were not legal entities. A concerned citizen had connections with the ASPCA and they stepped in to represent her. At that time a dog on the street was not allowed to be abused, but a child was.
ii. Under the direction of Henry Burr the ASPCA expanded to children and eventually became the Humane Society
b. Pornography and Child Endangerment
i. Alice Liddell was a young girl who was photographed provocatively by Lewis Carroll, but there were no laws in place to protect her (inspiration for Alice in Wonderland)
ii. The Salvation Army stepped in to help and also removed children from brothels.
c. Modern Approach
i. In 1962 the S.Ct recognized the child as a legal person with rights and status within the scope of the Constitution in Roth
ii. Case of Jared Ball: A child ahs due process rights
iii. In the 1970’s, child protection laws were formalized in response to child battering. The Battered Child Syndrome was recognized
The Constitutional Framework of Rights and Obligations
1. Contemporary Juvenile and Family Court Systems
a. Typically they have exclusive original j/d in four major categories of proceedings
i. Abuse and Neglect
1. state claims that a parent or custodian has committed physical, sexual, or emotional violence against a child
2. state claims that a parent or custodian has failed to provide a child with minimal level of support, education, nutrition, medical, or other necessary care for the child’s well-being
3. the court can provide services, place the child in foster care, or terminate parental rights
4. criminal abuse or neglect charges are heard in criminal court
ii. Adoption
1. terminates the biological parent-child relationship
2. creates a new relationship between adoptive parents and the child
3. adoption is limited to parental rights being terminated by consent or court order and the court has to approve the adoption as being in the best interest of the child
4. may also be vested in probate or surrogate court
iii. Status Offenses
1. conduct is sanctionable only where the person committing it is a minor
a. truancy
b. running away from home
c. incorrigibility – the child refuses to comply with parents
iv. Delinquency
1. a juvenile has committed an act that would be a felony or misdemeanor if committed by an adult
v. Other (j/d dependent)
1. traffic offenses
2. guardianship proceedings
3. emancipation
4. commitment of mentally ill or seriously disabled children to institutions
5. consent to abortion or underage marriage
6. paternity and child support
b. Unified Family Courts
i. Hears cases in the above four areas
ii. Enables one judge working with social services to resolve all matters typically associated with distressed families.
iii. Also hears cases traditionally heard in the general j/d courts:
1. divorce
2. paternity suits
3. criminal prosecutions of abuse, neglect, or DV
4. emancipation proceedings
5. protective orders under child abuse and adult abuse statutes
iv. Purpose of family courts
1. everyone saves time, effort, and resources
2. children don’t have to testify multiple times
3. easier to ge
s only.”
c. “The child is not the mere creature of the state; those who nurture him and direct his destiny have a right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Meyer and Pierce constitutionalized parental rights in disputes with the government and created a doctrinal foundation for ongoing refinement of the status, rights, and obligations of children.
2. The Movement Towards Children’s Rights
a. Prince v Massachusetts: SCOTUS, 1944
i. Child was protecting Jehovah’s Witness faith by handing out religious fliers on the street – this violated laws protecting child labor
ii. It is a clearer example of state police power – trying to protect children from harm and harm had occurred before in this situation
iii. The State was acting as a protector – parens patriae – but the question to ask is: does the presence of the parent/guardian put a limit on state power?
iv. D used the 1st Amendment, not the 14th, as the primary defense: free exercise of religion and separation of church and state
v. Court’s Analysis
1. “The state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and that this includes, to some extent, matters of conscience and religious conviction.”
2. “Parents may be free to become martyr’s themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”
3. There is not denial of equal protection in excluding their children from doing what no other children may do.”
vi. In general, focuses on the child’s dependence on adults for basic needs
vii. Teaches us that there is a limitation on the decision making powers of a parent over a child
3. Reconciling Parents’ and Children’s Rights
a. Troxel v Granville: SCOTUS, 2000
Mother of children wants to limit the children’s visitation with their paternal
