Parental Rights and Childs Rights – No Equal Protection

In Family Rights on April 6, 2009 at 12:04 am

I recently posted an article on parental rights. The article explains how parental rights are not only affected in divorce and custody proceedngs, but so are child rights from an equal protection status. This portion of the article bears repeating.

Convergence of Parent’s Rights and Interests with the Child’s Rights and Interests

State interference with the parent-child bond is often framed as a “parental rights” issue. However, the same issue could also be framed as one of state interference with the right of a child. Courts have noted that children have a concomitant fundamental right to the state of well-being which derives from “‘the continuity of affectionate care from those to whom [they are] attached through bonds of love.”‘ Roe v. Conn, 417 F. Supp. 769, 776 (M.D. Ala. 1976)(cite omitted); see also In re J.P., 648 P.2d 1364, 1369, 1377 n.13 (Utah 1982)(citation omitted)(“‘prior and fundamental right of a parent to rear his child; and concomitantly, of the right of the child to be reared by his natural parent’”); In re Perales, 369 N.E.2d 1047, 1051 (Ohio 1977). The right described in Roe is sometimes called the Child Liberty Doctrine, for it is a right describing a child’s right to be free from harmful and arbitrary state confinement.

A child cannot represent him or herself, and thus has a right to be represented by those who have the most similar alignment of familial, biological, property, and economic interests. When the state interferes with the parent-child bond, it imposes a disinterested caretaker upon the child. Over a long period of time, the service rendered by a caretaker who is motivated by the bonds of affection and/or a close alignment of interests with the child is likely to be quite different than the service rendered over the long term by a disinterested party. Caretakers with professional expertise in some specialty may have a more refined clinical approach to some facet of a child’s development, but professionals have no special systemic motivation to apply their services to obtain the maximum benefit for a particular child when assistance requires a significant personal, emotional, or financial investment or risk.

The same concept applies to other concerns that are de facto concerns when parental rights are litigated. For example, parents who are forced to defend against improper state interference often must expend tremendous quantities of time, money, and emotional energy in the effort. Yet if parents’ financial resources are depleted defending against state interference, the children of those traumatized parents are also likely to have a lower standard of living and a depleted inheritance.

Consequently, “while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds.” In re J.P., 648 P.2d at 1377 n.13 (quoting Santosky v. Kramer, 455 U.S. 745, 766 (1982)); see also Parham v. J.R., 442 U.S. 584, 600-03, 610-11 (1979); Dickson v. Lascaris, 423 N.E.2d 361, 363 (N.Y. 1981) (“rule fosters both [parents’ and child’s] interests by recognizing that they ordinarily converge”).

The Parental Liberty Doctrine is really a component of the much broader Family Liberty Doctrine (which overlaps with the Right to Family Autonomy, a facet of liberty oriented towards familial privacy and association). Jurists, journalists, and politicians have tended to focus on “parental rights” or “parental liberty,” because parents are often in a better position to assert family prerogatives in protection of the children. Often the public does not understand any term other than the widely-used colloquial expression parental rights. But to be technically precise, the Child Liberty Doctrine protecting the interests of children, as well as the state’s interests in general health and safety, are similarly intertwined with and served by the Family Liberty Doctrine. Children and society are better off when children are not treated as creatures or property of the state.


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