Choosing a home: when should children make autonomous choices about their home life?

• Author: Baldwin, Sarah J.

"The law of children has developed in a patchwork and inconsistent fashion. Decisionmakers including Congress, state legislatures, the Supreme Court, and state courts have created laws and decided cases without a comprehensive vision of what it means to be a child or how children think and behave." (1)

1. INTRODUCTION

   A sixteen-year-old female may decide to give birth and become a mother, but she cannot independently obtain an abortion or marry the father of her child. (2) A young mother may relinquish rights to her child without judicial intervention, but that same teenager may not decide independently with which parent she wishes to live. (3) The passage of the Twenty-Sixth Amendment highlighted inconsistencies in the law that allowed eighteen-year-olds to fight for their country but deprived those same individuals of the right to vote for the politicians who sent them to war. (4) Although this debate changed the way many individuals feel, society has failed to fully integrate young people into the legal and social worlds currently populated only by adults. (5) Similar inconsistencies still remain regarding minors' abilities to choose with whom they wish to live. (6)

   The United States Supreme Court decided Meyer v. Nebraska (7) in 1923 and established the fundamental rights to marry, to establish a home, and to raise children. (8) By 1944, the Supreme Court limited these rights for minors in Prince v. Massachusetts (9) Since the Prince decision, a patchwork of federal and state laws has impacted a minor's right to determine his or her living situation. (10) The time has come to make sense of the patchwork and provide consistent results for minors in the family-law system. (11)

   Scholars, judges, and the general public have offered a multitude of reasons for limiting minors' rights to make decisions about their home-life, including: promoting socialization and education; guaranteeing sufficient care; pursuing family interests; implementing normative models of proper behavior; and supporting and protecting minors. (12) These reasons, however, do not explain inconsistencies in laws allowing minors to make some family-law decisions and taking away those rights with regard to other decisions. (13) This Note calls for consistency in the treatment of minors and explores how the law treats minors in four family-law subject areas: marriage, adoption, custody, and abortion. Part II investigates the historical foundations of the belief that minors lack capacity to make important decisions. (14) It then goes on to discuss the historical development of minors' treatment with respect to autonomy and decision-making ability. (15) Part III suggests potential solutions for creating consistency in the law and discusses possible criticisms of those suggestions. (16) This Note ultimately calls for consistency in the law regarding minors' capacity to make decisions about their home lives. (17)

2. HISTORY

   Historically, adults have viewed children as lacking capacity for rational choice. (18) Capacity "is founded on the ability to think rationally, form plans, and make choices." (19) The law presumes a cognitively competent individual can make decisions in his or her best interests. (20) It remains unanswered whether or not this common belief should lead to an assumption that children under a certain age lack capacity, but current law restricting a child's right to make a decision assumes children are not competent to make those decisions. (21) Researchers differ in their opinions about how and when children develop capacity for choice. (22) Some claim children as young as age four or five can engage in causal reasoning and therefore have capacity to act rationally. (23) Slightly older children have been found to identify risks of treatments and make "adult-like" decisions even if unable to completely evaluate risks and benefits as adults would. (24) Other research suggests children between infancy and age eight have rational thoughts about the closeness of their relationships with their parents, each parent's ability to spend time with the child, the day-to-day stability of each parent, and the degree to which each parent provides care. (25) By the time children reach age nine or ten, they may match the competence of fourteen- to eighteen-year-olds in formulating a reasonable preference for custody. (26) Most researchers have agreed that by age twelve, children understand others' perspectives, think hypothetically, and compare alternatives. (27)

   Leading researcher Jean Piaget formed his cognitive-development theory by claiming children go through four basic levels of development: sensory motor period (birth to two years old); preoperational thought period (two to seven years old); concrete operations period (seven to eleven years old); and formal operations period (eleven to fifteen years old). (28) Other theorists reject Piaget's stage theory and believe adolescents individually develop skills at varying times. (29)

   Childhood was not always considered a separate stage of life. (30) Only in the seventeenth century did adults begin to view children as lesser beings and feel the need to protect and safeguard them. (31) In colonial America, adults treated children as servants, completely subservient to their parents. (32) The civil law in England and early America established twenty-one as the age of legal adulthood. (33) In In re Gault, (34) the Supreme Court explained children had the right, "not to liberty but to custody." (35)

   Many reasons have been offered for denying children rights, but throughout history, adults have most commonly argued that children need protection. (36) The state has a parens patriae interest in protecting minors' health and welfare from decisions grounded in immaturity. (37) Adults fear the impact that making decisions regarding custody and other important life matters will have on children, so instead, adults make these decisions for children. (38) Adults justify denying children freedom to make decisions because they view children as vulnerable, incapable of making rational decisions, and in need of protection. (39)

   Parenting has been encompassed in the right to privacy and this has subjugated the rights of children to those of parents. (40) No Supreme Court decision has explicitly held the right to privacy applies to minors, but the Court has extended the right to privacy to parents' choices in raising their children. (41) Parents have almost absolute authority and autonomy over the upbringing of their legally incompetent children. (42) More recently, the Supreme Court has repudiated this antiquated view, but the Court has still refused to fully analyze the relationship between minors and the state and to set forth a uniform standard for the treatment of children. (43) In fact, the Court appears to have found that capacity is not relevant in determining applicability of fundamental rights to minors. (44) Justice Stewart wrote in his concurrence in Ginsberg v. New York, (45) "a child ... is not possessed of that full capacity for individual choice.... It is only upon such a premise ... that a State may deprive children of other rights--the right to marry, for example, or the right to vote--deprivations that would be constitutionally intolerable for adults." (46)

   Currently, courts and legislatures have accepted that children hold some rights. (47) States vary the age at which they grant minors legal capacity, which suggests that rights are not all-or-nothing propositions. (48) Judges who reject childrens' preferences do so after concluding that a child's biological, psychosocial, and educational development makes her incapable of rational thought or subject to influences that render her rational judgment unsound. (49) This treatment has led to the current, confused state of the law, which pits a child's freedom of choice against a parent's desire to protect that child. (50)

   1. Marriage

      Despite current trends in the United States viewing marriage as an institution that individuals enter later in life, many communities have historically encouraged and continue to encourage marriage during teenage years. (51) English common law recognized three age groups with different capacities to marry. (52) The common law did not generally require parental approval, but Parliament enacted Lord Hardwicke's Act in 1753, which voided all marriages of persons under twenty-one if entered into without the consent of an underage party's father. (53)

      The Supreme Court has held that the right to privacy encompasses marriage. (54) The Court, however, has refused to extend this fundamental right to minors. (55) The right to privacy has been extended to minors in other areas of law, such as the right to decide whether or not to use contraception or have an abortion. (56) Yet the Court claims governments need not provide exceptional justification to limit underage marriage. (57) In Moe v. Dinkins, (58) the Second Circuit upheld a New York state law requiring all male applicants between sixteen and eighteen and all female applicants between fourteen and eighteen to obtain parental consent to marry. (59) The court found three legitimate state interests in requiring parental consent: ensuring the involvement of at least one mature person in the decision-making process; preventing the formation of unstable marriage relationships; and supporting parental rights as a fundamental privacy right. (60)

      All American jurisdictions have statutes that regulate minors' ability to marry, and all jurisdictions except two set the age of consent at eighteen. (61) Many states have minimum ages of marriage capacity ranging from age thirteen to eighteen, but with judicial interpretation and exceptions, these minimum ages often have no meaning. (62) Further, all states require parental consent for marriage of children under some age set by the legislature. (63) Specific requirements vary by state, but most states have a dual approach that...