The New Law of the Child.

Author:Dailey, Anne C.
 
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ARTICLE CONTENTS INTRODUCTION 1451 1. THE AUTHORITIES FRAMEWORK AND ITS FAILINGS 1456 A. The Authorities Framework 1457 B. Why the Authorities Framework Fails 1467 1. Failure To Promote Children's Interests in the Here and 1467 Now 2. Undue Prioritization of Parental Rights 1470 3. Perpetuation of the Myth of Nonintervention in the 1472 Family 4. Reliance on Limited Conceptions or Dependency and 1475 Autonomy II. CHILDREN'S INTERESTS IN THE HERE AND NOW 1478 A. Normative Foundations 1480 B. Children's Five Broader Interests 1484 1. Parental and Nonparental Relationships 1484 a. Relationships with Other Adults 1485 b. Relationships with Other Children 1487 2. Exposure to New Ideas 1493 3. Expressions of Identity 1496 4. Personal Integrity and Privacy 1500 5. Participation in Civic Life 1503 III. RELATIONSHIPS, RESPONSIBILITIES, RIGHTS: A NEW TRIPARTITE 1506 FRAMEWORK A. Relationships 1508 1. With Parents 1508 2. With Children and Other Adults 1511 B. Responsibilities 1515 1. Caregiving and Protection 1517 2. Education 1521 3. Rehabilitation 1523 4. Civic Engagement 1525 C. Rights 1527 1. Affirmative Rights 1528 2. Agency Rights 1532 3. Equality and Other Rights 1535 CONCLUSION 1536 INTRODUCTION

This Article sets forth a new paradigm for describing, understanding, and shaping children's relationship to law. The existing regime of laws relating to children hinges on the fundamental question of adult control over children and their development. We name and critique this prevailing approach the "authorities framework" and set forth the normative justifications and parameters for a new paradigm. We envision a "new law of the child" that promotes a wide range of children's present and future interests in addition to assigning adult authority over children's dependency and development.

Our new paradigm is rooted in a broad understanding of children's interests as children in the here and now, encompassing but moving beyond a developmental focus on children's dependency or their attainment of autonomy. Drawing from the social science literature, scholarship on children and law, and judicial decisions, we identify five broader interests that law should recognize and promote: children's interests in parental and nonparental relationships, including relationships with children and other adults; exposure to new ideas; expressions of identity; personal integrity and privacy; and participation in civic life.

This new law of the child situates children's interests within a normative universe that values the extraordinary richness and variety of children's lives. Although our approach would impose greater restrictions on adult authority in some circumstances, it also calls on law to be more attuned to children's diverse interests within the family, school, and other arenas. We believe law should recognize, maintain, and promote a broader range of children's relationships, including relationships with nonparental adults and with other children. Relatedly, law should advance children's exposure to new ideas in ways that will spur their curiosity, learning, and exploration of their own identities as they grow. Law should also ensure that children have opportunities to express themselves in school and elsewhere, while at the same time protecting children from intrusions on their bodily integrity and personal privacy. And, finally, law should seek to further children's participation in civic life as a central component of their engagement in the world.

In bringing to light this broader range of children's interests in the here and now, our approach highlights that children's lives are more than lesser versions of adult lives or way stations on the road to autonomous adulthood. Our focus on children's interests beyond dependency and autonomy takes account of the unique strengths and capacities of children, as well as the special vulnerabilities that distinguish human experience in this early stage of life. By focusing on children's lives in the here and now, we aim to free the field of children and law from the ideal of the autonomous, freely acting adult individual. Our approach takes seriously the idea of children as individuals in their own right, worthy of respect, even as they are dependent in varying ways upon the adults in their lives.

By shifting the focus from adult authority to children's broader interests, our framework opens up the possibility for a new conceptual ordering of the laws governing children. The field of children and law is currently organized by location: primarily home, school, and the juvenile justice system. The five interests we identify lead us to radically restructure the field around a tripartite framework of relationships, responsibilities, and rights. We begin with relationships because children's custodial status defines their first and primary relationship to law. Yet our approach goes beyond acknowledging relationships of authority to encompass children's nonhierarchical relationships with siblings, other children, and nonparental adults. These relationships in turn inform the second prong of the tripartite framework: adult responsibilities for children. While custodial caregivers have important responsibilities, we identify a broader set of actors who should carry legally recognized and shared responsibilities toward children, including state actors and adults outside the family. These adult responsibilities encompass duties related to caregiving and protection, education, rehabilitation, and fostering of civic engagement. The third and final prong of the tripartite framework addresses the full range of rights that should be enjoyed by parents and children--not simply rights of authority--most importantly children's affirmative rights to certain relationships, goods, and services.

By restructuring the field around relationships, responsibilities, and rights, we hope to identify and promote children's broader interests in an integrated and consistent way. To this end, our approach reimagines the traditional "best interests of the child" standard, which until now has largely operated as a cover for the exercise of unprincipled judicial discretion based on poorly thought-out factors focused on children's dependency. Our approach instead redefines the best interests standard in light of five broad interests--generous in scope and rich in content--that serve as fundamental, practical guides for judicial, administrative, and legislative decision-making across all domains of children's lives. Under a best interests standard explicitly oriented around children's broader interests, decisionmakers will be equipped to weigh children's interests in a transparent, coherent, and consistent way in the domains of family, school, juvenile justice, immigration, and other arenas, always with an eye toward maximizing their present and future well-being.

Relatedly, the new law of the child loosens the grip of parental rights on American law. Under our approach, the law's existing deference to parental rights in both statutes and legal decisions would give way to a more child-centered analysis that elevates children's broader interests over parents' individual liberty claims. Parental rights have a role to play under the new law of the child, but only to the extent they further children's broader interests, which include children's interest in developing and maintaining relationships with their parents free from state control. Parental rights should never automatically trump the interests of all others--most importantly, those of children themselves. For example, our approach would eliminate parental freedom to inflict corporal punishment on children on the ground that this type of punishment violates a child's interests in bodily integrity and rehabilitation. Our framework would also limit parents' rights to homeschool their children in most circumstances, requiring more intensive state oversight of homeschooling for children in the early years and prohibiting it altogether for most children past the primary grades, based primarily on children's interest in exposure to ideas. We reject the classic defense of parental rights--that they are necessary to limit state intervention in the family --by emphasizing the state's existing presence in the lives of all children and the role parental rights may play in suppressing children's diverse values and experiences. Instead of ignoring conflicts within the family and between the family and the state over children's present and future well-being, we accept such conflicts as necessary for understanding and furthering the broad range of children's interests as children.

Moreover, our approach supports the recognition and enforcement of children's affirmative rights rooted in their broader interests in the here and now. The new law of the child rejects the Supreme Court's decision in DeShaney v. Winnebago County Department of Social Services, which held that children have no affirmative right to safety within the home, thereby ignoring the shared responsibilities of both parents and the state to further children's interest in protection from harm at the hands of custodial caregivers. (1) In a direct departure from existing constitutional law, the new law of the child would recognize children's affirmative rights as children to certain goods and services essential to furthering their broader interests. In some cases, affirmative rights would entitle children to initiate court actions to enforce these rights, although these rights would primarily be enforced in custody, visitation, school, immigration, and other proceedings.

Our approach also reconceives children's interests in exercising control over their own lives as "agency" rights rather than "autonomy" rights. We do so in order to emphasize that children often have the capacity to make decisions for themselves at the same time that they are dependent upon adults. For example, in Tinker v. Des Moines Independent Community School District, the Supreme Court upheld the right of children to wear black armbands at school in protest of the Vietnam War. (2) Although we support the Court's holding that children possess free speech rights while in school, we do so not because children possess adult-like autonomy rights, as the Court concluded, but rather because children have their own interests in exposure to the world of ideas and to expression of their developing views and identities. These rights are necessarily tailored to fit children's broader interests, including their interests in safety and learning in school. Our conception of children's agency rights reflects a richer, more nuanced conception of children's capacity to direct their own lives even while dependent upon a wide range of adults.

Finally, the new law of the child attempts to put an end to seemingly futile debates over children's "maturity." The concept of maturity has emerged in recent years as a focal point of legal decision making about children. Children who are deemed mature have access to adult rights and responsibilities, while those who are deemed immature remain subject to more paternalistic regulations. Yet focusing exclusively on maturity risks masking the real interests at stake in any given situation. For example, scholars and legal decision-makers struggle to reconcile two well-accepted cases: Roper v. Simmons, holding that adolescents are not as responsible as adults and, hence, should not be subject to the death penalty, (3) and Bellotti v. Baird, holding that adolescents are often responsible enough to decide whether to terminate a pregnancy. (4) By focusing on children's broader interests--rather than on "maturity" or "responsibility"--our approach illuminates what is really at stake in these cases: in Roper, children's interests in criminal rehabilitation and bodily integrity, and in Bellotti, children's interests in sexuality, reproductive agency, expression of identity, and civic engagement. While maturity is not irrelevant to identifying and weighing these interests, it should not be the endpoint of the analysis.

The new law of the child thus lays the foundation for revising or overruling many foundational Supreme Court decisions in addition to those already discussed. In Prince v. Massachusetts, for example, the Court upheld a Massachusetts child labor statute that prevented an eight-year-old girl from distributing religious literature on the street at night accompanied by her guardian, on the ground that the state's parens patriae power justified the protection of the child from harm. (5) By contrast, our approach would consider the child's broad interests in her relationship with her guardian, in expressing her religious identity, and in engaging in the world beyond home and school. Similarly, the Supreme Court's decision in Wisconsin v. Yoder, which granted Amish parents the right to withdraw their children from secondary school, (6) failed to take account of children's interest in exposure to new ideas through educational opportunities outside the home. As already noted, our framework likely justifies limits on homeschooling for older children and increased regulation of homeschooling for younger children. The new law of the child would also take an entirely different approach to the Supreme Court's decision in Troxel v. Granville. (7) Instead of relying on the primacy of parental rights to reject grandparents' claims to maintain relationships with their grandchildren, our framework would make children's interests in maintaining relationships with nonparental figures the centerpiece of the analysis.

Our reformulation of the field of children and law permits a clearer examination of the ways law currently shapes children's lives through its treatment of the parent-child relationship and through its construction of children's dependency. Because the existing authorities framework is presumed to reflect children's lives as they are, its true expressive effects have remained unexamined. Looking closely, however, we see that the state intervenes in the parent-child relationship not simply at the back-end when disputes arise, but also at the front-end when conferring parental rights and family privacy. Legal scholars have generally failed to explore these expressive effects. (8) This silence risks naturalizing a particular model of childhood, unnecessarily limiting the scope of reform by placing certain aspects of children's lives beyond the reach of law.

Law has the power to reflect and shape multiple aspects of children's lives. The new law of the child seeks to recognize and promote facets of children's lives beyond dependency and autonomy, thereby expanding and altering the law's current focus. This new paradigm offers a more nuanced and comprehensive formulation of the ways in which law does, and does not, govern children's lives. At the same time, our approach does more than reflect existing reality; it also signals that certain, presently unrecognized aspects of children's lives should be valued by society. Our approach therefore aims to transform existing understandings of children and their interactions with each other and with adults. In this way, the new law of the child both uncovers aspects of children's lives obscured by existing law and draws upon these broader aspects to encourage new ways of living for both children and adults.

This Article proceeds as follows. Part I sets out the history and current configuration of the prevailing approach to children and law--which we term the "authorities framework." After describing the authorities framework, this Part goes on to enumerate its four major shortcomings: it fails to acknowledge and promote the well-being of children in the here and now; it unduly prioritizes parental rights over children's interests; it perpetuates a myth of nonintervention in the family; and it relies on limited conceptions of both dependency and autonomy. In Part II, we begin the task of identifying and elaborating children's interests beyond autonomy and dependency that better take account of children's lives in the here and now. These interests include children's interests in relationships with parents as well as with children and other adults; exposure to new ideas; expressions of identity; personal integrity and privacy; and participation in civic life. These five broader interests in turn lead us in Part III to reconceptualize the field of children and law around a new tripartite framework of relationships, responsibilities, and rights, opening the door for legal decision makers to further children's broader interests in a transparent, coherent, and consistent way across a myriad of legal domains. In so doing, this new law of the child seeks to better capture and promote the diversity and richness of children's lives in the here and now.

  1. THE AUTHORITIES FRAMEWORK AND ITS FAILINGS

    The field of children and law currently rests on the foundational question of who has authority over children's lives--parents, the state, or (less frequently) children themselves. (9) In addressing this question, courts and legislatures focus on identifying when children are dependent on adults and when they are capable of making independent decisions about their own lives. Analysis may be best conceptualized as an inverted triangle, with parents and the state occupying the top points and children the bottom. (10) Lines of authority connect the three points, as courts and legislatures specify when parental authority over children trumps state interests, when state interests trump parental authority, and the rare instances when children's desires trump both. (11)

    This emphasis on children's dependency and eventual capacity underlies the entire field of children and law, in large part because adult authority over children derives its primary legal justification from children's dependent status. As the Supreme Court has explained, "The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." (12) This legal conception of childhood is so widely accepted by U.S. courts, policymakers, and scholars that it has no name; it is simply the way things are. (13)

    We coin the term "authorities framework" to describe this current state of the field. Doing so allows us both to better analyze the existing law governing children and to emphasize that the current organization of the field is neither natural nor inevitable. Rather, this organization is rooted in a control-based conception of parental rights that perpetuates the myth that the state does not intervene in most families. Once we reveal this existing framework, we analyze how it leads to an unjustifiably narrow focus on dependency and autonomy to the exclusion of children's other interests.

    1. The Authorities Framework

      The authorities framework is rooted in the early common-law property-based theory of exclusive parental ownership of children. This theory located absolute control over children in parents--primarily fathers--based on actual or presumed biological ties. (14) As Barbara Bennett Woodhouse describes, well into the nineteenth century, a father could force his children to work and collect the wages for himself; he could marry off his female children to persons of his choosing; and he determined where and with whom his children would reside, whether with himself, the mother, or some third party. (15) In addition, fathers had the right to physically control and punish their children, in some states up to the point of death. (16) This absolute control was often framed as an arrangement whereby fathers were obligated to provide for children in exchange for "labour and services," although children were required to submit to that exchange. (17) Somewhat paradoxically, law prior to the late nineteenth century viewed children as autonomous beings, still under the control of their parents but not significantly different from adults. (18) Accordingly, this early regime did not condition parental control on children's dependency or incapacity.

      This regime changed by the late nineteenth century, as the state assumed greater decision-making power and control over children. Parental control was no longer an absolute God-given right, but instead became a more limited, state-conferred entitlement grounded in public concerns and children's "best interests." (19) Although the state had long possessed a common-law duty toward "infants, idiots, and lunatics," the ascendant doctrine of parens patriae came to justify the state's power to override parental authority in the name of children's welfare, (20) sometimes with the goal of expanding state control over families of color, immigrant families, and other marginalized groups. (21) At the same time, late nineteenth-century thinkers introduced the idea of children as innocent, dependent beings different from adults and in need of special protection and care, thus strengthening the justification for state intervention in children's lives. (22) The emerging view of children as dependent, along with increasing state involvement, ultimately dislodged traditional notions of children as property, bringing about the development of more humane labor, juvenile justice, and child welfare laws, as well as compulsory education laws. (23)

      Although the doctrine of absolute parental power has now been abandoned, (24) the law nevertheless retains a strong commitment to parental rights. In case after case, the Supreme Court has affirmed the constitutional rights of parents "to direct the upbringing and education of children under their control." (25) Indeed, as the Court has observed, "the interest of parents in the care, custody, and control of their children... is perhaps the oldest of the fundamental liberty interests recognized by this Court." (26) Of course, when parents fail to fulfill their caregiving duties, they may forfeit their rights: the state may subject parents to criminal prosecution for neglect or abandonment, or it may subject them to civil child welfare proceedings that can lead to the termination of parental rights altogether. (27) But if parents minimally fulfill their duties, the state protects their relationships with their children and their childrearing choices. (28) Contemporary judges, policymakers, and scholars therefore generally embrace parental rights as the appropriate starting point for protecting children's interests. (29) Children are no longer considered property, but they remain under the direction and control of parents in the first instance.

      The authorities framework has evolved somewhat in recent decades as modern courts and legislatures have begun to recognize children's rights and autonomy interests in some contexts. Of course, children have long enjoyed certain constitutional liberties, such as the right not to be enslaved under the Thirteenth Amendment and the right not to be arbitrarily deprived of life or liberty under the Due Process Clause. (30) Nevertheless, well into the twentieth century, children enjoyed--at best--only a minimal set of entitlements associated with basic liberties. Beginning in the 1960s, courts and legislatures independently acknowledged children's developing capacities and, in some contexts, concluded that older children have sufficient cognitive and emotional skills to entitle them to certain negative rights similar to those enjoyed by adults. (31) In 1967, the Supreme Court expressly confirmed that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone," finding that older children have constitutional rights for purposes of juvenile delinquency proceedings. (32) Since In re Gault, the Court has issued a series of decisions recognizing autonomy rights for children, including Tinker v. Des Moines Independent Community School District, which held that older children have adult constitutional rights for purposes of school speech. (33)

      This recognition of children's autonomy comes into play most often with respect to adolescent decision making outside of the home, particularly at school and in the labor market. (34) Occasionally, however, judges may take older children's views into account even when addressing family disputes, such as in the areas of custody (35) and healthcare decision-making. (36) Criminal law often treats children as autonomous legal actors, with states enacting laws that permit, and in some circumstances require, juvenile offenders to be tried in adult criminal court. (37) Respecting children's autonomy interests sometimes calls for an individualized examination of a child's maturity, as in emancipation hearings and judicial bypass hearings in the abortion context. (38) At other times, respecting children's autonomy interests entails a categorical drop in the age at which children may be treated like adults, as may be the case with driving, (39) sexual activity, (40) and the prosecution of some crimes. (41)

      The modern trend toward recognizing children's autonomy in certain contexts has nevertheless failed to alter law's view of children as fundamentally dependent beings in need of adult supervision and control. (42) One need not master the field of children and law to recognize that our legal system denies children basic personal, social, and political rights. Most children do not have state or federal rights to vote, (43) marry, (44) work for wages, (45) make healthcare decisions, (46) have sex, (47) travel, (48) refuse an education, (49) be on the streets at night, (50) purchase pornography, (51) attend (or not attend) religious services against parental wishes, (52) or enjoy most other freedoms enjoyed by adults. Justice Powell stated that these differences "abound in our law: in contracts, in torts, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the right to vote and to hold office." (53) Far from being left alone to make their own choices, children are directed by their parents and the state into relationships, activities, educational instruction, and ways of life not of their own choosing. (54)

      Children's rights therefore remain relatively limited and qualified despite language in Supreme Court decisions suggesting that children broadly enjoy constitutional rights. (55) For example, children have free speech rights in school only so long as that speech does not disrupt the learning environment. (56) Adolescent girls have substantive due process rights to choose to terminate a pregnancy, but states may condition girls' access to abortion on parental consent or judicial determinations of maturity or best interests. (57) Rather than bestowing broad autonomy rights on children, the Court regularly reiterates the view of children as dependent beings with lesser rights than adults. As the Court has explained, "[c]hildren, by definition, are not assumed to have the capacity to take care of themselves." (58) Rather, it remains the case that, under the law, "[t]hey are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae." (59)

      Moreover, courts, policymakers, and scholars increasingly draw on empirical studies to argue that children are less mature than the law has generally presumed. (60) In a series of juvenile sentencing decisions involving older adolescents, the Supreme Court recognized children's "inherent difference from adults in their capacity as agents, as choosers, as shapers of their own lives." (61) In Roper v. Simmons, the Court ruled that a state law permitting the execution of defendants who committed their crimes as juveniles was unconstitutional. (62) Even seventeen-year-olds, the Roper Court explained, are often more immature, irresponsible, impetuous, and reckless than adults and therefore less culpable for their crimes and less deserving of severe punishment. (63) This assessment relied, in part, on empirical studies indicating that adolescent brains are not fully formed and that the prefrontal cortex, which is responsible for strategizing, setting priorities, and controlling impulses, is particularly underdeveloped in adolescence. (64) Subsequent decisions in the criminal justice context continue to describe minors as inherently less capable--and thus less culpable--than adults. (65)

      The authorities framework's recognition of adolescents' autonomy thus remains muddled, leading to contradictory conclusions about children's capacity but not much else. Federal and state laws now specify differing bright-line ages for when children become legal adults for purposes of marriage, sexual activity, employment, driving, drinking, voting, and criminal prosecution. (66) Similarly, courts have determined that children enjoy adult-like rights of speech, privacy, and association for some purposes, but must wait until adulthood before they may exercise these rights fully. (67) The diverse and shifting nature of these age cutoffs speaks volumes about the difficulty--and, in some cases, the futility--of attempting to justify laws by reference to children's decision-making abilities. Indeed, the authorities framework provides no tools other than vague tests of "maturity" for deciding when children will be subject to adult control and when they will be allowed to make their own decisions.

      In fact, the variable age of adulthood often reflects social and political considerations other than, or in addition to, assumptions about children's capacity for autonomous decision making. (68) This was evident when the voting age was reduced to the draft age during the Vietnam War era, (69) and it is evident now when some states prosecute children as adults while other states do not. (70) In addition, in the context of delinquency and abortion, in particular, judicial and prosecutorial understandings of capacity and maturity may differ depending on the race, class, or gender of the children in question in ways that may reflect bias more than differing rates of development. One recent study found that adults view girls of color as less innocent and more adult-like than white girls, especially when they are between the ages of five and fourteen. (71) Children of color are also transferred from juvenile to adult criminal court at higher rates than white children. (72) And, in addition to biases based on the identity of the children before them, it appears that judges sometimes invoke maturity to justify decisions rooted in impermissible value judgments. That is, children who make choices with which judges disagree--choices to have sex, to drink, or to obtain an abortion --may be more likely to be found "immature." (73)

      The authorities framework therefore continues to focus largely on children's dependency, with only a small and contradictory patchwork of laws extending negative liberties to older children. The framework legitimates and fortifies the governing legal principles of parental rights and state parens patriae power. American courts, policymakers, and scholars accept this schema when determining how law governs or should govern children's lives. Although often assumed to reflect the preexisting reality of children's lives, the authorities framework is in fact a choice that shapes the lives of children and their parents. And, as set forth below, it does so in problematic ways.

    2. Why the Authorities Framework Fails

      Although many scholars have critiqued the public/private distinction that colors disputes between parents and the state, (74) none have questioned whether authority is the proper lens through which to conceptualize the field of children and law in the first place. The narrow focus on children's dependency under a regime of parental and state authority has multiple shortcomings. We focus on the four we believe to be most problematic: the failure to acknowledge and promote the richness of children's lives in the here and now; an undue prioritization of parental rights over children's interests; the ongoing perpetuation of the myth of nonintervention in the family; and a persistent reliance by legal actors on limited conceptions of both dependency and autonomy.

      1. Failure To Promote Children's Interests in the Here and Now

        The authorities framework focuses on the developmental arc from dependency to autonomy to the exclusion of other meaningful aspects of children's lives. Under this narrow view, children as a class are always dependent on either parents or the state, with courts and legislatures determining when some older adolescents should be treated as rights-bearing autonomous adults. By focusing solely on this trajectory from dependency to autonomy, (75) the authorities framework overlooks the fact that children enjoy active lives in the here and now, experiencing a wide range of emotions and pursuing a variety of aims apart from their long-term investment in becoming adults.

        Although children are dependent on adults in many contexts and developmental research is vital to any consideration of children and law, dependency and autonomy are not the only defining facets of children's lives--nor should they be. There is nothing innate or essential about children's lives. Indeed, childhood itself is a social construction. (76) It may be defined in relation to development, other aspects of children's experiences, or a combination thereof. (77) Moreover, children's experiences vary from child to child, are deeply situational, and change over time. The authorities framework fails to recognize this rich diversity because it ties children's needs and interests to a baseline of adulthood, regarding children as pre-adults, always in the act of becoming full persons but not necessarily full persons in their own right. (78) The authorities framework therefore perpetuates a particular construction of childhood in which children may only escape their dependency on adults by successfully developing into adults themselves.

        The ubiquitous "best interests of the child" standard, in its current configuration, (79) deepens rather than resolves these concerns about the authorities framework's narrow view of children's interests. Although the term "best interests" could encompass children's interests broadly, the standard in practice has been coopted by the authorities framework's developmental bent and has been frequently leveraged to protect parents' ability to exercise proper authority over children. Further, the best interests standard often masks significant judicial discretion. (80) Legislatures and courts define a child's best interests by the simple attributes of age, gender, and other demographic factors or, in contrast, by reference to parents' emotional health or wishes. (81) The preference of the child is sometimes included as a factor in the determination, but this narrow focus on preference often elevates children's stated desires over their other interests, which remain largely unarticulated and unexamined. Moreover, the child's preference is considered as a single factor, which is often trumped by the recognition of parental rights. (82)

        The traditional best interests standard therefore does not address children's interests as persons in their own right. The standard has little discernible content and often operates as a mask for judicial discretion. To the extent it does have substance, the standard's conception of "best interests" tends to be defined in relation to children's developmental needs and parental rights. Children's interests beyond dependency and autonomy remain largely unarticulated and unexamined.

      2. Undue Prioritization of Parental Rights

        A foundational commitment to parental rights undergirds the authorities framework, limiting law's ability to recognize and further children's interests beyond dependency and autonomy. Under the authorities framework, parents enjoy rights over their children as part of the fundamental due process right to choose how to live their lives free from governmental control. (83) Notably, parental rights are doctrinally rooted in parents' own autonomy interests, not in their responsibility for furthering children's interests, broadly construed. Although some contemporary scholars argue that strong enforcement of parental rights is the best way to serve children's interests, (84) the interests served are narrowly defined and typically not at the forefront of the decision-making process.

        Indeed, when parental rights come into play, children's interests generally drop out of the equation altogether. In Michael H. v. Gerald D., for example, a biological father claimed that California's presumption of paternity--which assigned paternal rights to the husband of a married woman over the biological father--was unconstitutional. (85) The Supreme Court held that a biological father does not have constitutionally-recognized parental rights to a relationship with a child when the mother is married to another man. More importantly, the Court rejected the child's claim to a relationship with her biological father, viewing the biological father's right and the child's interests as two sides of the same coin. (86) If the biological father could not assert a right to maintain a relationship with his child, the Court reasoned, then the child had no parallel cognizable interest in a relationship with him. (87)

        Parental rights often receive controlling weight, decentering and devaluing children in legal analyses. For example, in Troxel v. Granville, the Supreme Court rejected a Washington State statute that allowed courts to grant visitation rights to third parties over the objection of custodial parents if that "visitation may serve the best interests of the child." (88) At the center of the dispute in Troxel were two young girls whose father had committed suicide. The paternal grandparents, who had a close relationship with the girls, sought visitation rights beyond the monthly visits the mother was willing to allow. The plurality opinion written by Justice O'Connor held that the statute violated parents' rights to "the care, custody, and control of their children." (89) In this context, O'Connor concluded, the mother's rights prevailed over any consideration of the children's interests in maintaining closer contact with their grandparents--the primary link to their deceased father and important figures in the children's lives.

        Although parental rights may indirectly further children's interests, they are a circuitous and unreliable means of doing so. Parental rights construct children predominantly as objects of control, rather than as people with values and interests of their own. Indeed, in face-offs between parental rights and children's rights, parents almost always win. In both Michael H. and Troxel, for example, the Supreme Court majorities did not take children's interests into account in any meaningful way. Parental rights maintain their hold on the American legal imagination, even as many parents are overwhelmed by the demands of an expansive and exclusive notion of parental childrearing authority and rely on others to help perform childrearing duties. (90)

        All this is not to say that parental rights should play no role in children's lives. Parental rights may foster pluralism and diversity among families, protecting children from state standardization and indoctrination. (91) They also clearly further parents' own interests in raising their children free from governmental control. They promote children's interests in developing and maintaining close, stable attachment relationships with caregivers, particularly in the early years. And finally, parental rights serve children's interests because parents often know what is best for their children. Yet under the authorities framework, parental rights have had an outsized influence, overshadowing conflicts within the family as well as alternative ways of supporting children's interests. Indeed, many U.S. policymakers have opposed ratification of the U.N. Convention on the Rights of the Child specifically on the ground that the treaty would undermine parental authority. (92) The United States, in contrast to almost every other country in the world, (93) continues to overprioritize parental rights at the expense of children's interests.

      3. Perpetuation of the Myth of Nonintervention in the Family

        The authorities framework's strong emphasis on parental rights also perpetuates a myth of nonintervention in the family and particularly in children's lives--a myth that does not accurately describe family life and that stands in the way of developing a robust regime of parental responsibilities to children. (94) Under the authorities framework, common-law and constitutional notions of family privacy assign parents control over their children unless and until the state intervenes. (95) Such privacy is commonly understood to place families--and children --beyond the reach of law. (96) In fact, it is conventional wisdom to assume that law is irrelevant to children unless they are subject to a state's abuse and neglect jurisdiction, have been adjudicated delinquent, or are involved in custody proceedings.

        Despite this narrative of nonintervention, law in fact regulates children's lives on a daily basis. The authorities framework generally renders this regulation invisible, but two modes of analysis bring it to light: first, an examination of the law affecting children's lives outside of the traditional domain of the authorities framework; and second, an examination of the ways in which decisions not to regulate do in fact have regulatory effects.

        First, the field of children and law currently considers only some of the laws affecting children's lives. For example, a leading casebook organizes law's regulation of children by type of authority and location, with parental authority governing in the home and state parens patriae authority governing in schools and in the juvenile justice system. (97) But law mediates children's interactions with multiple actors in multiple spheres across public and private divides. For example, law often dictates when children may work for wages, when they may enter into enforceable contracts, how they may access social media, to which advertisements they may be subject, how they may manage property, when they must be vaccinated, what they must waive to participate in sports and other activities, and how daycares and summer camps must be structured. (98) When these broader forms of regulation are taken into account, we see that law mediates children's experiences on a daily and ongoing basis, even if most children and their families never end up in court. By failing to offer a satisfying account of the legal regulation of children's lives apart from their involvement in hierarchical relationships of control with parents and state actors, the authorities framework obscures these other forms of regulation. In doing so, it perpetuates the myth that law generally does not affect children's lives and that, when it does, it is largely a subset of family law.

        Second, the authorities framework fails to fully examine the effects of its myopic focus on the hierarchical parent-child relationship. The authorities framework posits the parent-child relationship and parental authority as natural and preexisting, with law entering the relationship only when courts or government agencies explicitly intervene. Yet both the recognition of the parent-child relationship and the grant of parental rights are state decisions. (99) Parental authority also flows from laws specifying that children lack the legal capacity to make most decisions on their own. (100) Parental rights and family privacy are therefore always already "constituted and regulated by law, even if what is constituted includes a domain of autonomous judgment that can come into conflict with law." (101) In other words, a state's decision not to regulate most parent-child relationships is itself a form of regulation. By respecting parental rights and family privacy, law touches every child's life. This involvement constructs children as objects of parental control. By failing to recognize such regulation, the authorities framework perpetuates the myth that the law does not intervene in children's lives, both inaccurately describing family life and limiting the potential of law to better serve children's interests.

      4. Reliance on Limited Conceptions of Dependency and Autonomy

        Finally, the authorities framework fails on its own terms to the extent it embraces limited conceptions of dependency and autonomy. Its consistent focus on children as developing persons produces a system premised on a greater degree of dependency than children may actually experience. (102) Moreover, some forms of children's dependency are direct consequences of the law, forcing children to rely on their parents when they otherwise might not. For example, because children generally are not permitted to engage in wage labor (103) or to consent to medical care, (104) they are dependent on adults to perform those functions for them. In this respect, a child's legal status as a "child" overrides all other potentially relevant individualized factors, like the actual age, maturity, or dependency of the particular child. (105)

        Here it may be useful to consider how law has both addressed and constructed dependency in other contexts. Disability, for example, is an apparently objective condition that nonetheless has been shaped by the law's ability-disability binary in profound ways. (106) An impairment is constructed as a disability only against law's assessment of what it means to be "able-bodied." Marital status, too, once constructed dependency by conferring virtually all legal rights on husbands, purportedly for the benefit and protection of wives. (107) Although this legal regime was, in part, a response to dependencies arising from childbearing and childrearing, that response also shaped perceptions of women's abilities both in and out of the home. By virtue of law, women were thought to lack the constitution to work long hours in factories and the capacity to vote. It took centuries for courts and legislatures to reject these limitations as legal and social constructs not reflective of real differences between men and women. (108) Today, the law of marriage and divorce continues to respond to the dependencies of childbearing and childrearing, but in a way that better reflects the coexistence of dependence and autonomy with respect to both spouses. (109)

        Children's dependencies, of course, are much more a function of biological age or maturity than are the dependencies of spouses or people with disabilities. At birth, children are completely dependent on adults, and only over time do they acquire the mental and physical capabilities to pursue more independent courses of action. Yet the dependency of infants and young children masks important aspects of children's experiences that are not controlled by their developmental status. And by relying on a one-dimensional understanding of children as either dependent or autonomous beings, the authorities framework fails to recognize and value children's capacities as agents of their own lives even at relatively young ages. (110)

        The authorities framework also offers an impoverished conception of autonomy. Under that framework, autonomy acts as an on-off switch, obscuring the fact that certain capacities for independent thought and action--what we might call "agency"--often exist alongside dependency. (111) Consider an especially stark example: the case of a young adolescent girl who herself becomes a mother. In most states, she will be considered a dependent vis-a-vis her own parents--without power, for example, to make educational decisions for herself. But she will nevertheless likely have parental control over healthcare decisions for her baby. Similarly, children might have strongly held views about bodily privacy

        or about their choice of friends in school, despite being dependent on their parents in other ways. The authorities framework leaves little room for law to develop a vision of children's agency within multidimensional relationships of which their dependency is only one small part. (112)

        Moreover, autonomy as a basis for children's rights goes only so far. The authorities framework presumes that autonomous decision making is the precondition for children's rights. In this way, the framework defines children's rights just as constitutional law defines adult rights--as negative liberties protecting a sphere of autonomous decision-making. (113) So long as children are treated as dependents, they are presumptively excluded from the class of rights-holders. (114) The authorities framework thus fails to acknowledge an alternative, positive conception of rights better suited to furthering children's unique interests as children. This exclusive focus on negative liberty provides yet another reason why the United States remains the only member nation not to ratify the U.N. Convention on the Rights of the Child, (115) a treaty granting children affirmative rights to certain fundamental goods such as healthcare, education, and housing.

        Notably missing from the authorities framework, then, is any robust, comprehensive vision of children's affirmative rights. At the state level, children may claim the right to education, but not much else. (116) Almost all governmental goods and services are governmental benefits--as opposed to entitlements--extended at the discretion of the state. (117) The authorities framework's equation of rights with autonomy excludes children's affirmative claims to maintain certain relationships or to receive certain services and goods to secure their present and future well-being. In fact, the Supreme Court has made it exceedingly clear that the U.S. Constitution confers no affirmative entitlements on children, (118) a position directly at odds with the broader interests of children set forth in Part II and the new framework we propose in Part III.

        The authorities framework does more than fail to reflect certain features of children's lives; it also shapes children's lives by signaling that aspects of their lives beyond dependency and autonomy are, or should be, unimportant to children, parents, and the state. The authorities framework therefore constitutes children as lesser adults, leading to a legal regime grounded in a distorted vision of children's lives, parental rights, and the potential for state support of families.

        As we explain in the next Part, law can and should expand its conception of children's interests beyond dependency and autonomy. While children are diverse in many ways, they share relational interests beyond hierarchical relationships of control. All children have present, noninstrumental interests, desires, experiences, and needs. By moving beyond the authorities framework's shortcomings, a broader conception of children's lives in the here and now comes into view.

  2. CHILDREN'S INTERESTS IN THE HERE AND NOW

    The new law of the child set forth in the rest of this Article demonstrates why law should, as a prescriptive matter, regulate children's lives based on a clearly articulated, broad range of children's interests. Our analysis is powered by a vision of children living meaningful lives in the here and now--a vision drawn from developmental literature, scholarship on children and law, and what we take to be the best of judicial decision making. Children's lives encompass an array of experiences outside the developmental trajectory that moves children from dependency to autonomy. This Part identifies these broader, more inclusive interests, specifying the nuanced ways in which they intersect with--but often transcend--dependency and autonomy concerns.

    This Part identifies five fundamental interests that we believe best capture children's experience in the here and now. These are children's interests in: (1) parental and nonparental relationships; (2) exposure to new ideas; (3) expressions of identity; (4) personal integrity and privacy; and (5) participation in civic life. These five interests are not meant to be exhaustive, but rather to serve as a starting point for further inquiry by courts, legislatures, and scholars. We are cognizant of the fact that any compilation of children's interests cannot be definitive or absolute. What we present here is a provisional account, open to debate and revision. By setting forth our best rendering of children's broader interests, we hope to stimulate that debate.

    The discussion that follows acknowledges and embraces diversity among children. Children's interests vary from child to child, are deeply situational, and change with the passage of time. The authorities framework's narrow focus on parental rights and children's dependency has prevented law from more fully attending to children's differences. Parental rights in particular, while justified in part on the ground that freedom from governmental control will promote family diversity and social pluralism, (119) reinforce a norm of governmental nonintervention that prevents law from recognizing differing needs and privileges among children. Children's economic, racial, religious, gender, and other differences are lost under a legal framework designed to promote adult authority over all else. Our approach, in contrast, resists the impulse to essentialize children or parents, instead acknowledging the diverse ways children experience the interests we identify.

    In articulating children's broader interests in the here and now, this Part lays the foundation for a radical reworking of the field of children and law while also reinvigorating existing standards. As explained in Part I, the authorities framework's narrow conception of children's interests has produced a weak and largely ineffectual "best interests of the child" standard that typically gives way in the face of parental rights. Our approach aims to transform the best interests standard into a robust mechanism for evaluating and weighing children's broader interests in legislative, administrative, and judicial decision making, with parental rights coming into play only to the extent that they advance those interests in a particular case. (120) Thus we retain the phrase "best interests standard" as a useful legal term that allows for balancing children's broad interests in the context of legislative, administrative, and judicial decision making.

    Our account of children's lives resonates to some extent with the work of Joseph Goldstein, Anna Freud, and Albert Solnit in their path-breaking 1973 book, Beyond the Best Interests of the Child. (121) Like their approach to child custody "from the child's vantage point," (122) our new law of the child seeks to go "beyond" the existing categories of autonomy and dependency to capture the richness, diversity, and uniqueness of children's experience as children. Although Goldstein, Freud, and Solnit importantly focused on children's emotional connections to others in light of children's sense of time and perspective on the world, they remained tied to a theory of development that emphasized children's relationship with their "psychological parent" above all others. (123) The new law of the child aims to revive Goldstein, Freud, and Solnit's child-centered, psychologically attuned perspective while at the same time recognizing the value of children's varying relationships and experiences. Ultimately, Goldstein, Freud, and Solnit did not break free of the authorities framework's emphasis on parents' rights as the touchstone for children and the law. It is precisely this paradigmatic centering of parental control that our new law of the child leaves behind.

    We thus seek to directly promote the diversity of children's broader interests without sacrificing core legal protections for parental rights and family privacy. This Part first sets out the normative foundation for the recognition of these broader interests and then examines each of the five interests in turn.

    1. Normative Foundations

      Our vision of children's broader interests embodies prescriptive goals for children's lives under the law. We seek to better capture who children are in an empirical sense, but we also aim to build a normative account of children under the law. The new law of the child is attentive to parental rights and the developmental needs of children, while also focusing on children's distinct abilities, needs, and experiences as children. In particular, our approach recognizes and promotes children's capacities to develop relationships; explore the world of ideas; express their identities; feel secure in their bodily integrity and personal privacy; and be fulfilled through work and political engagement.

      This elaboration of broader interests breaks free from the limitations of the authorities framework we identified in Part I. In addition to promoting children's broader interests, we draw attention to law's involvement in all dimensions of family life, beginning with legal definitions of childhood and the assignment of children to their biological parents' custody. The elaboration of children's broader interests also eschews easy binaries such as the dependency-autonomy polarity that currently structures the authorities framework. We emphasize that children experience agency within dependency, while acknowledging that children's present interests are always filtered through the lens of their future lives as adults.

      To that end, we acknowledge the difficulty of labeling the interests we wish to promote. In many ways, they may be described as children's present interests in contrast to the developmental interests at the core of the authorities framework. Children have interests as children, separate from and in addition to their interest in developing into autonomous adults. (124) At the same time, describing these interests as present interests risks setting up a false binary between present and future interests. Children, like adults, experience the present while looking toward the future. (125) They experience a range of emotions and pursue a range of purposes, some of which are related to the concerns and aspirations of their future selves as they are imagined in the present. By emphasizing that children's present and future interests are inextricably linked, the new law of the child helps to unseat the prevailing dependency-autonomy binary, whereby children are viewed either as dependent on adults or as autonomous individuals nearing adulthood.

      We thus refer to the broad range of children's interests presented in this Part as children's "broader interests" or "interests in the here and now." Of course, children's developmental needs and experiences--their interest in becoming future adults--are not excluded from our analysis. But, while developmental concerns are relevant and should be taken into account, adult autonomy is not the endpoint of the analysis nor the only foundation for children's rights. We therefore distinguish our analysis from that of commentators emphasizing children's right to an "open future." (126) These commentators focus on eliminating barriers to children's future choices as adults, but they fail to recognize that children also have robust interests in the here and now, well before those futures are realized.

      Our account of children's broader interests aligns with fundamental commitments and aspirations already embedded in American law and legal discourse. Recognition of the central value of intimate relationships in human affairs has a long history in constitutional law and commentary. (127) Law has come to define the sphere of adult intimate relationships in terms of parenting, sexuality, and marriage; this normative understanding of relationships as central to human flourishing applies equally if not more so to children. Similarly, children's interest in exposure to new ideas resonates with many of the same values underlying adults' rights to free expression and access to ideas. (128) Adult interests in bodily integrity and personal privacy--interests that children share--are also an established fixture of American law. (129) And the right to participate in civic life, most notably through voting, has a long, albeit contested, history in which children can and should be recognized. (130)

      To be clear, we do not simply seek to transfer a regime of adult liberal values to children. Our normative account of children's interests goes well beyond an understanding of the core values that animate law's regulation of persons more generally. The governing liberal ideal for adults--the principle of individual autonomy--plays a lesser role in our scheme of children's interests. In contrast to the authorities framework's focus on children's attainment of autonomy, we envision children's lives freed from the ideal of the autonomous, freely acting adult individual. We elaborate a new law of the child that better reflects the full breadth of children's experiences in the here and now, as children and not simply as future autonomous adults. Some of these interests resonate with the interests of adults, but some are distinct to children's interests.

      The new law of the child thus exposes an unresolved conundrum within traditional liberal theory: how to account for the interests of children under a legal regime organized around the fundamental principle of individual autonomy. (131) Our approach pushes the liberal legal framework to its limits--or even beyond--by insisting that children's interests be given priority over adult autonomy rights. (132) We also break free from a single-minded devotion to a choice framework of rights rooted in the liberal legal ideal of individual autonomy. Older adolescents may lay claim to modified autonomy rights--what we call agency rights--but autonomy is not the central concern under our new law of the child. Instead, we aim to tie children's rights to adult responsibilities, opening up avenues for recognizing children's affirmative entitlements to certain goods, services, and access to ideas and people in their lives.

      Our new framework thus seeks to build a different normative account of children's lives that gives rise to new ways of imagining the law's regulation of children. This normative account will be contested; we aim here only to open a dialogue rather than to impose a final, authoritative statement of children's treatment in law. Nevertheless, the framework we offer is more than simply one alternative among many for promoting the interests of children. The new law of the child represents our best attempt to engender a legal regime that values children as full persons with broad interests and rights of their own.

    2. Children's Five Broader Interests

      The new law of the child expands law's reach to incorporate a broader range of interests in the here and now beyond the dependency and autonomy interests already recognized by law. As already explained, these broader interests encompass developmental needs and goals, as children's present well-being cannot be neatly separated from their future aims. We identify and discuss five interests: (1) parental and nonparental relationships; (2) exposure to new ideas; (3) expressions of identity; (4) personal integrity and privacy; and (5) participation in civic life. These five broader interests are offered here in the spirit of opening a more focused and sustained dialogue over the present and future well-being of children.

      1. Parental and Nonparental Relationships

        Our approach recognizes the importance of children developing a primary attachment relationship with at least one adult committed to their care over time. (133) Young children need emotional security and care to ensure their wellbeing and development, and the parent-child relationship is the first and primary attachment relationship in most children's lives. Ideally, parental or other custodial caregivers provide the conditions most likely to produce basic loving environments for children. (134) These attachment relationships have the potential to foster children's pleasure and propel their development in physical, emotional, and cognitive ways.

        Law already vigorously protects the parent-child relationship, (135) yet it does so by consistently placing children at the bottom of the vertical parent-child relationship, thus focusing primarily on children's developmental needs and interests. (136) This emphasis on hierarchical relationships undervalues the relationships children form with other children, including siblings and peers, as well as with noncustodial adults in their lives.

        We value the parent-child relationship while also emphasizing that parents are not the only important persons in children's lives. Developmental researchers study the ways in which "[y]oung children experience their world as an environment of relationships, and these relationships affect virtually all aspects of their development." (137) Many relationships in children's lives are not defined by a legal right to control, as the parent-child relationship is, yet these diverse relationships are important to children's development. Other relationships are not necessarily tied to children's dependency or developmental needs, but they nonetheless play important roles in children's lives.

        With a focus on children's broader range of relationships, the new law of the child positions children as more than passive recipients of adult childrearing. Rather than placing children at the bottom of hierarchical relationships of control, the new law of the child positions children as active participants at the center of a web of multiple relationships, including those with other adults, siblings, and peers.

        1. Relationships with Other Adults

          Many children live with adults who are not their legal parents, and all children interact with a diverse group of adults. Law currently recognizes the value of these relationships with other adults only to the extent that the adults are fulfilling a caregiving role similar to parents. (138) Stepparents, unmarried partners of legal parents, and a limited number of other adults playing caregiving roles in children's lives may therefore enjoy parent-like rights so long as they continue to function like parents. (139)

          These relationships, while meaningful to many families, reinforce the importance of parental bonds to the exclusion of children's other relationships with adults. (140) Under the authorities framework, children's relationships with individuals other than their parents are fully within their parents' control. Because children are always...

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