Child Custody and Foster Care

In America, the family serves as both the primary vehicle for the care and rearing of children and as a private realm of intimate association and moral autonomy. This tradition of family privacy is rooted in early American common law, inherited in part from England, and in principles of political and personal autonomy on which the United States was founded. Family privacy remains a fundamental principle, but since colonial times and escalating beginning in the Progressive era, the patriarch’s power over children has diminished whereas maternal, state, and children’s power have increased (Appell 2004; Mason).

Prior to the abolition of slavery, family privacy generally did not extend to slaves, because children born to female slaves legally belonged to the slave master. Indeed, it was not until decades after adoption of the Thirteenth and Fourteenth Amendments that the U. S. Supreme Court began to recognize a zone of family privacy and its attendant parental rights doctrine. The constitutional source of this fundamental family liberty is contested but is found in, or in the penumbra of, constitutional amendments relating to freedom of religion and association, freedom from unreasonable searches and seizures, due process, equal protection, and the natural liberties retained by the people (Stanley v. Illinois).

Children and parents share a liberty interest in family integrity and against state intervention (Santosky v. Kramer), but children have few liberty interests in opposition to their parents. This imbalance between adult and child rights in the custodial context has become a growing source of controversy since the last half of the twentieth century as children are increasingly viewed as rights-holders, family forms become more fluid, and lawyers and other professionals work directly with, or on behalf of, children (Appell 2004).

Parental Custodial Liberties

The parent–child relationship is so fundamental that the U. S. Supreme Court has extended special protections to parents for custodial decisions regarding child rearing, visitation, health care, education, and religion, for example, Meyer v. Nebraska; Parham v. J.R.; Pierce v. Society of Sisters; Prince v. Massachusetts; Troxel v. Granville; Wisconsin v. Yoder. Parents have a superior right to custody of their children unless the parent is unfit or has abdicated all or part of the parental role (Stanley v. Illinois) even when others believe that the child’s best interests lay elsewhere (Santosky v. Kramer). Furthermore, courts may not base custodial decisions on racial prejudice (Palmore v. Sidoti).

States cannot coercively remove a child from parental custody without a hearing (Stanley v. Illinois). In termination of parental rights proceedings, parents receive heightened procedural protections not normally available to civil litigants. For example, a court may not terminate parental rights unless the parent has been shown to be unfit or otherwise unable to parent under a heightened standard of proof known as clear and convincing evidence (Santosky v. Kramer). Moreover, indigent parents may be entitled to a court-appointed attorney when the termination of parental rights proceedings are complex (Lassiter v. Dept. Soc. Services); like criminal defendants, indigent parents are entitled to free transcripts on appeal of termination of parental rights decisions (M.L.B. v. S.L.J.).

There are, however, limits to parental freedom to make decisions regarding their children’s care and upbringing. These limitations generally arise from other constitutional principles that outweigh parental liberties. Thus parents do not have the right to send their children to a segregated school (Runyon v. McCrary) or to abuse or neglect their children (Stanley v. Illionois). Moreover, a daughter’s reproductive health rights can trump the parent’s right to make medical decisions regarding birth control (Carey v. Pop. Services International ) and abortion (Bellotti v. Baird ).

State law, within constitutional parameters, normally determines who the mother and father are, and it is those mothers and fathers so defined whose liberties the Supreme Court protects. Generally, the law considers the birth mother and biological or marital father to be parents (Lehr v. Robertson; Michael H. v. Gerald D.; Quilloin v. Walcott). States have, however, recognized custodial rights of stepparents and same sex partners of legal parents by establishing special rules for second-parent adoption and for visitation rights after the adult relationship terminates (Appell 2001).

Foster parents do not have the same liberty interest, if any, in their foster children as parents have in their children (Smith v. Organization of Foster Families for Equality and Reform). Similarly, grandparents do not have special liberties regarding their grandchildren on par with the rights of parents (Troxel v. Granville), but certain constitutional family privacy protections may be extended to grandparents living with grandchildren (Moore v. City of East Cleveland ) (plurality).

Children’s Custodial Liberties

Children do not have many liberty interests in the custodial context because the Supreme Court views children as always in the custody of another (Schall v. Martin). Although children and parents share a liberty interest in their relationship, parents hold most of the rights within that relationship. Thus, although parents have the right to make major decisions about their children’s care, education, and custody, children have only limited rights to oppose those decisions.

Children do not have many rights against the state as custodian or protector either. For example, although parents are not entitled to abuse their children, children do not have a right to state protection from that abuse (DeShaney v. Winnebago County Dept. of Social Services; City of Castle Rock v. Gonzalez). Children also have few liberties when in protective state custody, such as foster care, although presumably they have the right to be free from avoidable harm (See Reno v. Flores; Youngberg v. Romeo).

Children do, however, have slightly greater liberty interests in other custodial contexts such as school (Goss v. Lopez; New Jersey v. T.L.O.; Tinker v. Des- Moines; West Virginia Board of Education v. Barnette) and the threat of juvenile or penal incarceration (In re Gault; In re Winship).

Native American Children

Special rules apply to certain custody and foster care proceedings regarding Native American children. These rules both enhance and limit parental and children’s liberties and provide special rights for tribes (Indian Child Welfare Act; Appell, 2004).

ANNETTE R. APPEL

References and Further Reading

  • Appell, Annette R., Uneasy Tensions Between Children’s Rights and Civil Rights, Nevada Law Journal 5 (2004): 1:141–171. 
  • ———, Virtual Mothers and the Meaning of Parenthood, University of Michigan Journal of Law Reform 34 (2001): 4:683–790. 
  • Davis, Peggy Cooper. Neglected Stories: The Constitution and Family Values, New York: Hill and Wang, 1997. 
  • Guggenheim, Martin. What’s Wrong with Children’s Rights, Cambridge, MA: Harvard University Press, 2005 
  • Lindsey, Duncan. The Welfare of Children, 2nd ed., New York: Oxford University Press, 2004. 
  • Mason, Mary Ann. From Father’s Property to Children’s Rights, New York: Columbia University Press, 1994. 
  • Mnookin, Robert H. In the Interest of Children: Advocacy, Law Reform, and Public Policy, New York: W.H. Freeman & Co., 1985. 
  • Woodhouse, Barbara Bennett, Who Owns the Child?: Meyer and Pierce and the Child as Property, William & Mary Law Review 33 (1992): 4:995–1122. 

Cases and Statutes Cited

  • Bellotti v. Baird, 443 U.S. 622 (1979) 
  • Carey v. Pop. Services International, 431 US 678 (1977) 
  • City of Castle Rock v. Gonzalez, 125 S. Ct. 2796 (2005) 
  • DeShaney v. Winnebago County, 489 U.S 189 (1989) 
  • Goss v. Lopez, 419 U.S. 565 (1975) 
  • In re Gault, 387 U.S. 1 (1967) 
  • In re Winship, 397 U.S. 358 (1970) 
  • Lassiter v. DSS, 452 U.S. 18 (1981) 
  • Lehr v. Robertson, 463 U.S. 248 (1983)
  • Meyer v. Nebraska, 262 U.S. 390 (1923) 
  • Michael H. v. Gerald D., 491 U.S. 110 (1989) 
  • M.L.B. v. S.L.J, 519 U.S. 102 (1996) 
  • Moore v. City of East Cleveland, 431 U.S. 494 (1977) 
  • New Jersey v. T.L.O., 469 U.S. 325 (1985) 
  • Palmore v. Sidoti, 466 U.S. 429 (1984) 
  • Parham v. J.R., 442 U.S. 584 (1979) 
  • Pierce v. Society of Sisters, 268 U.S. 510 (1925) 
  • Prince v. Massachusetts, 321 US 158 (1944) 
  • Quilloin v. Walcott, 434 U.S. 246 (1978) 
  • Reno v. Flores, 507 U.S. 292 (1993) 
  • Runyon v. McCrary, 427 U.S. 160 (1976) 
  • Santosky v. Kramer, 455 U.S. 745 (1982) 
  • Schall v. Martin, 467 U.S. 253, 268 (1984) 
  • Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816 (1977) 
  • Stanley v. Illinois, 405 U.S. 645 (1972) 
  • Tinker v. DesMoines, 393 U.S. 503 (1969) 
  • Troxel v. Granville, 530 U.S. 57 (2000) 
  • West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) 
  • Wisconsin v. Yoder, 406 U.S. 205 (1972) 
  • Youngberg v. Romeo, 457 U.S. 307 (1982) 
  • Indian Child Welfare Act, 25 USC 1901–1963 

See also Child Custody and Adoption

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