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Child, Family and State
Wayne State University Law School
Morrison, Adele M.



FALL 2011

(47) The Channeling Function in Family Law, Carl E. Schneider

5 Functions of family law

1. Protective: protect citizens against harms done by other citizens/family members.

o Family law protects family from other family members.

2. Facilitative: Organize lives and affairs of family members.

o i.e. marriage license: tell you what this means if you get married.

3. Arbitral function: Dispute resolution: help people figure out problems (divorce).

4. Expressive function: deploys law power to impart ideas through law and symbol

o Law can and does make symbolic statement about family, family life, parenting – by dictating what is a good parent/bad parents. Laws and policy actually express sentiment of what is good/bad.

5. Channeling

o law supports/develops particular social institution: Idea is to channel people into specific social institutions (parenthood/marriage)

Normative characteristics of parenthood (using law/policies to channel people into this)

1. Bio mom and dad

2. Married

3. Full legal parents (if not than stranger) (can make decisions for/about child)

o either parent or not

4. Parents are expected to love and care for child

5. Not only married but provide stable environment (stay together)

6. Parents are supposed to support/nurture.


· Lack of social support/recognition of laws involvement (people do things for different reasons)

· By supporting one, disadvantage another.

· Alternatives to this institution, which may be excluded from accessing the law, leaves a limbo to relationships that do not conform – Leaves people in a grey area (i.e. if not married how do you split stuff if you split up.)

o Certain benefits that go to parents, people who are not in that institution do not have

· Channel can be misused:

o If parenthood is defined in a particular way – individuals (adopted children) can be mistreated in the name of the law. If only bio mom and dad who are parents, does that leave out children who are adopted?

(3) Rewriting the Legal Family: Beyond Exclusivity to a Care-Based Standard, Kavangah

· Exclusivity

o 1. 2 parents: married, heterosexual and opposite sexes

o 2. Adult standing in relationship to children, either:

· full legal parents or; stranger

· Full legal parents: Absolute and exclusive control over and access to those who are identified as their legal children.

o Why defining parent and who a parent is and who those two parents are, is so important in the law

§ Those who are not a parent to that particular child have no say (nor access) with that children

· Why does he say this is the structure that is socially recognized and legally sanctioned?

o Says this structure is easier to manage and is the best way to ensure children are cared for

§ Caring for children should become a private burden and not a public one.

· Policies: take a year off – policies to encourage having children (someone has to raise new workers)

o US: parents responsibilities for taking care of children –

§ those who are biologically related are responsible – (absent bad behavior) if child doesn’t have biological parents, state will step in – adopting turns them into biological parents

· Why biological parents? Will care the most – notion that biological connection creates willingness to care.

· Inclusive family: (Kavangah idea of what it should be)

o Care based model – move from best interest of the child – to the caregivers (idea of functioning parents)

§ Rights generated behavior – idea that rights generate behavior (rights come with what you do)


A. The Traditional Model

(1017) Roe v Doe

· Define traditional parent/child relationship and establish traditional legal response to it.

o Parents = duty to support, Children = duty to obey

· Default position: State stay out of relationship to allow for family privacy

· ABOVE is traditional model

o When Health, Safety & Welfare of child is in danger.

o Harm standard: state will look at what is harm

Facts: Daughter suing dad to cover back expenses from time enrolled to current (and up forward to 21st birthday). Dad’s response: 2 options – live in the dorm, take care of stuff or come home.

Issue: Child who voluntarily leaves to do what her dad does not want.

Holding Father has right to require daughter comply with reasonable demands – should she not and chose not to she cannot then ask for his support. (might be different if she was not of employable age (18) still minor at this time (age was 21) When daughter was doing what he wanted her to do, dad was ordered to pay for bills.

(1021) License parents so they are good caregivers – role to properly care for the child. Parent is responsible to care for the children. Idea of responsibility to the child instead of responsibility for the child.

B. Encroachments on the Doctrine of Family Privacy

1. Constitutional Law

(1022) Prince v Massachusetts

Issue: whether state can interfere and tell aunt she cannot take child out at night

· Parental freedom: Parents can exercise their religion as long as it does not harm child (rights not absolute)

Holding: Standard when state can encroach: when there is harm – problem: defining harm.

(1025) Parham v J.R.

Issue: What is the due process due to a kid who is going to be placed in mental healthcare

Holding: the state will step in when there is harm. Absent any harm, parents get to make decisions (default standard)

· Presumption that parents have child’s best interest in their mind (default). Only if abuse/neglect shown will state get involved.

o State will step will have to rebut presumption by showing harm – that parent’s decision is harmful to child

2. Tort Law

(1031) Goorland v Continental Insurance and YMCA

Facts: 4 year old incapacitated son stuck in parking lot

Issue: Is there parental immunity from a suit for negligent supervision

Holding: Suits arising out of the exercising of authority and adequateness of childcare are generally immune

o State will not step in and critique when parents are acting as a parent.

(1035) Popple v Rose

I: Do parents of a minor child have a duty to warn 3rd parties of child’s allegedly known dangerous sexual propensities?

Holding: Yes, parent/child is a special relationship that may create a duty to warn. But parent must know this child might do something and have opportunity to control child. Here they did not know – so not liable.

Rule: State will encroach on parent/child relationship saying duty to warn others of the child’s ability tendency to harm someone else when there is a known potential for harm

(1038) Giuliani v Guiler

Facts: Mom died during birth of four children, dad sued for loss of consortium, lower court dismissed claim as related to the three minor children (9,7,3)

Issue: whether courts should recognize damages for minor children for loss of parental consortium.

Holding: Yes. Court created right to sue for loss of consortium. Children are seen as separate beings.

(1040) Gallimore v Children’s Hospital Medical Center

Issue: whether loss of consortium between parents and child is recoverable when child was hurt

Holding: Yes the parent/child relationship is unique and it is particularly deserving of special recognition in the law.

Summary of Torts:

· Default: parents have the best outlook for child in mind and cannot be sued for negligent supervision while acting as a parent

· Third party cannot join parents unless they are supervening cause. Moving away from absolute immunity to a reasonable standard

Incentives to provide more $ religious over non religious schools

(1070) Cedar Rapids Community School District v Garret F.

Facts: Wheelchair bound student – school says it is not their duty to pay for the ventilator

Issue: Whether under IDEA (ada for education) the school has to pay for the services.

Holding: case is about whether meaningful access to public schools will be assured. Services must be provided if P is to remain in school. District must fund related services in order to help guarantee that students like P are integrated into the public schools.

3. Health Care

(1074) Guardianship of Phillip B.

Facts: Presumption that parents can raise child as they see fit. Caretakers came in – non-parents want to take legal guardianship over the family.

Holding/Standard: Clear and convincing evidence that parental custody would be detrimental AND non-parent custody is in the best interest of the child (both by clear and convincing evidence)

Where people are acting in a fashion incompatible with parenthood. (1078)

(1081) Bowen v. American Hospital Association

Need to re-read

(1093) Miller v HCA

Facts: Pregnant lady comes to hospital – have conversation before birth where problems were discussed. Pregnant lady told hospital to let nature take its course, dad went to plan funeral. Parents are suing hospital in this case for battery/negligence. wrongful life – for saving the newborn baby

Issue: to whom does this hospital owe a duty? To the parents or to the baby? Quesiton of parents rights/procedures as well as the hospitals

Holding: If there was a duty, it was to the patient/child

Rule: State will step in override the parental consent & essentially enforce health safety & welfare of child as patient in emergency circumstances. If without treatment the child would not live – the state will step in

(1098) Curran v. Bosze

Facts: father of one child wants his half siblings (live with mother) to see if compatible for bone marrow transplant.

· Dad wants to use substituted judgment : somebody else (surrogate decision maker) makes decision that the patient (the child) would make if competent

· Court rejects because court would make decision as if a person was competent – but 3.5 year olds are incompetent – substituted judgment then does not work for kids

Rule: Parent can give consent on behalf of a child if in best interest of the child. This case not in child’s best interest.

Holding: ct uses best interest of child standard. Someone else making a decision of what is in their best interest


· State may step in when care and procedures is necessary to sustain life and not unduly risky

o If the situation is not life threatening, the state will generally not step in.

· Presumption: parents decisions are in the best interest of the child

o Are rebuttable by clear and convincing evidence

o Must also show clear and convincing evidence that parent keeping custody is harmful to the child AND the other decision is in best interest to the child (next step is in best interest to the child)