DOING BETTER FOR CHILD MIGRANTS. (response to article by Ann Laquer Estin in this issue, p. 589)

• Published date: 22 September 2018
• Author: Appleton, Susan Frelich
• Date: 22 September 2018

Professor Ann Laquer Estin's Child Migrants and Child Welfare: Toward a Best Interests Approach (1) makes several important contributions to our understanding of the complicated legal questions posed by a timely and too often tragic phenomenon: large numbers of unaccompanied child migrants, including many coming into the United States. Estin helpfully disentangles and explores the welter of possibly applicable laws, from U.S. constitutional provisions to international human rights laws, federal immigration laws, and state family laws. (2) Her careful analysis also exposes significant gaps, pointing out how some issues fall between relevant bodies of law. (3)

Although each of the sources of law canvassed in the article is animated by its own set of values and assumptions, Estin's bottom line is that "we can and should do better" (4) for the children in question. As an American family law expert, Estin identifies her principal area of concern as "assur[ing] that the federal agencies who take custody of unaccompanied minors are adequately addressing children's needs for care and protection as the process unfolds, including their need for legal representation"--responsibilities assigned to the Office of Refugee Resettlement (ORR) in Department of Health and Human Services. (5) Given her expertise and her central concern, Estin recommends infusing all the different areas of law pertinent to child migrants with due regard for family law's ubiquitous "best interests principle." (6)

For those of us who lament how harm to children has become acceptable collateral damage in the pursuit of stricter immigration laws and enforcement practices, Estin's call to focus on children and to do better for them comes none too soon. This response examines whether the best interests principle is up to the job, in light of lessons learned from child custody disputes and controversies about child migrants, past and present.

I. THE PROMISE AND PERILS OF THE BEST INTERESTS PRINCIPLE

To the extent that the best interests principle asks legal decisionmakers to stand in the child's shoes, taking the child's point of view (7) and prioritizing the child's need for a strong and continuous relationship with a parent (or one performing the role of parent), (8) it has much to offer to the confused and confusing treatment of child migrants. For example, as Estin points out, using the best interests principle should, in theory, prevent the routine separation of U.S.-citizen children from their non-citizen parents and should help ensure legal representation for unaccompanied children. Such changes would represent significant improvements in the status quo, which now includes a "zero tolerance" policy imposing on adults who illegally enter the United States imprisonment and separation from their children. (11) Another advantage of the best interests principle is that, as applied, it purports to require an individualized examination of a particular child and his or her situation, rejecting broad generalizations (12) and in turn promising needed flexibility and nuance for crafting appropriate responses tailored to the specific plight of each child migrant.

Yet, the best interests principle has difficulties of its own. The very terminology overpromises, suggesting that children in in difficult situations, for example, a contest between divorcing parents or a case of maltreatment (or a migration crisis), can have their best interests actualized, when a more realistic approach would seek to achieve "the least detrimental alternative" under challenging circumstances. (13) Most prominently, the principle provides a notoriously indeterminate standard, as scholars and law reformers have long pointed out in examining the principle's use to resolve child custody disputes. In the context of custody disputes, the principle's indeterminacy creates obstacles to settlement (15) and often appears to send destructive messages about the relative value of the competing parents. (16) In part for such reasons, contemporary custody law has come to rely less on best interests and, instead, increasingly on joint custody arrangements and private ordering. (18) Extending the best interests principle to child migrants and their legal problems would not, in most cases, trigger these particular disadvantages specific to custody disputes.

I have far less confidence, however, that the indeterminacy of the best interests principle in the context of child migration would avoid an additional difficulty for which it has been called out in custody cases: the invitation for decisionmakers to impose their own intuitions, assumptions, and value judgments. (19) Family law is replete with custody cases in which trial judges have used the best interests principle to disapprove of mothers pursuing higher education or careers, (20) penalize women's sexual choices, (21) and favor conventional religions, (22) to name just a few examples. In response, some state legislatures have sought to tame the best interests principle in the custody context with statutory "dos" and "don'ts"--factors that courts must consider and factors that they must not. No such statutory guardrails presently exist in the context of child migrants. Further, another important limit on the best interests principle, the constitutional right of fit parents to decide how to rear their children, (24) would not typically apply to unaccompanied child migrants, leaving wide room for government officials, including judges, to invoke "best interests" to advance agendas disconnected from the minor in question.

II. CAUTIONARY TALES FROM THE PAST

Migrant children played starring roles in two highly publicized cases from the not too distant past. In one, decisionmakers at various stages used the best interests principle's indeterminacy to give weight (perhaps decisive weight) to the perceived superiority of this country's political regime, overcoming ordinary deference to the authority of parents choosing to live under communism. Although appellate courts eventually required a course correction, the proceedings took time--too much to remedy the earlier errors. The second case, with strikingly similar facts, demonstrates a more circumscribed approach, in which the decisionmakers resisted the...