Absences: 9/18/07, 10/4
Ch. 1 The Status, Rights and Obligations of Children
*How the Court balances the interest of Children, parents, and the State
Why do children have a different legal status?
1. Inability to meet subsistence needs
2. need for nurture and socialization
3. decisions about their lives
*key point about scope of parent’s control: presumption that parents act in their children’s best interests (rebuttable), b/c of the natural bonds of affection parents have in regards to their children
*state has authority over children’s activities to a greater extent than it does over adults
*children are generally regarded as having constitutional rights, i.e. freedom of speech, criminal procedure rights, but they may be construed or applied differently than they are with regard to adults
-with children, you have to deal with the adult, the state, and the child. Consider the interest of three parties when talking about regulations of actions with children.
Meyer v. Nebraska
-state law prohibited teaching of any subject in a language other than English
-teacher was arrested for teaching in German
Pierce v. Society of Sisters
-dealt with state’s mandatory education law that required that children be sent to a public school
-challenge filed by parochial and military schools
*the child is not the 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
-both cases struck down, strong statements about parental rights in regard to the upbringing of children
Prince v. Massachusetts
-Jehovah’s witness took her child onto public street for street preaching, violated child labor law
*it is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder….And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
-this case looks at the child as an interested party, as well as the parent and the state.
-state’s interest: child labor, protection b/c of this occurring on pubic street
-child’s interest: in practicing religion,
-parent’s interest: upbringing and religion
-the state won b/c the state determined that the state’s interest in child labor and protection outweighed the interest of the others.
-the child felt that if she did not participate, she would be exposed to eternal damnation
*police power: state can regulate public to protect health, safety, welfare and morals; trying to protect public generally
*parens patriae: regulation to care for and protect (rather than regulatory) the person, i.e. abuse, neglect, foster care, adoption, me
ionships), interest in consistent and coherent upbringing
-state’s interest: essentially the best interest of the child, which can fit in with the child or the parent’s interest
-state should NOT have an interest in a case like this in the grandparent’s interest in visitation unless it has to do with the child’s best interest
*court ruled that the rule is unconstitutional as applied
-would all grandparent visitation statutes be struck? How about visitation may be awarded if in the best interest of the child after considering the views of the parent? This takes away presumption and gives the Court the right to choose. That doesn’t work. Maybe: Court can award visitation over parent’s objections if it find that the child has a strong relationship, etc. Maybe some factual findings that would be a basis for overriding the parent’s presumption.
*has to give presumption to parent for best interest of the child.
*Troxel says that there must actually be some deference to the fit parent’s decision.
-shortcut for the legislature is to avoid naming who can petition because there is such a wide variety of who may want visitation