HERE YOU GO
Step-by-step explanation:
Parental rights are—and should remain—the backbone of family law.
State deference to parents is warranted not because parents are infallible, nor
because parents own their children, but rather because parental rights,
properly understood and limited, promote child wellbeing.1 This is true for
several reasons, but two stand out. First, parental rights promote the stability
of the parent-child relationship by restricting the state’s authority to intervene
in families. This protection promotes healthy child development for all
children, and it is especially important for low-income families and families
of color, who are subject to intensive state scrutiny.2 Second, parental rights
ensure that parents, rather than a private third party or state actor such as a
judge or social worker, make decisions about what advances a child’s
interests. The legal system defers to parents’ decisions both because parents
are well positioned to know what an individual child needs, and because state
intervention to vindicate the decision-making power of a nonparent would
expose the child to significant risks of family disruption and contentious
litigation.3
There are clear limits to parental rights, however, and the child-wellbeing
rationale for these rights, which we describe in this Essay, provides a
self-limiting principle. Unlike the traditional libertarian justification for
parental rights,4 the child-wellbeing rationale centers the interests of children. When a parent’s conduct poses a significant risk to a child, the state
may intervene, even when the parent’s actions are based on religious beliefs.5
And when there is broad societal consensus about what children need—such
as education and health care—the state properly preempts parental authority,
requiring all parents to send their children to school and to obtain necessary
medical care.6 But in many other instances, especially where there is no
societal consensus, the law properly defers to parental judgments, at least for
young children.7 (As we explain in this Essay, adolescents do and should
have more autonomy over some matters.)8 This deference to parents is
especially important for marginalized families because the judgments of
other parties may reflect bias and dominant parenting norms.9
Some scholars contend that to promote children’s interests, the legal
system should limit—rather than reinforce—parental rights.10 We share
these scholars’ commitment to the goal of promoting child and family
wellbeing, but we are concerned about their proposed means. Perhaps most
critically, these scholars underestimate the risk of displacing parental
judgment. Given the inability of young children to make consequential
decisions for themselves, the law can either defer to a parent’s decision or
substitute parental judgment with that of judges, social workers, and other
government actors who are strangers to the child.11 There is no reason to
believe these actors are better positioned to make decisions, and the process
of supplanting the parent can inflict harm on the parent-child relationship.
Alternatively, these scholars argue, the state could expand the role of third
parties in some circumstances. Third parties may know the child better than
government actors, but the process of enforcing third parties’ judgments over
the decisions of parents can also inflict harm on the child and still requires
government actors, such as judges, to determine who is better positioned to
make decisions for the child. In short, in our view, weakening parental rights
would create substantial disruption in families and harm children, especially
children in communities of color, who already experience heavy-handed
intrusion by the state.12
In this Essay, we demonstrate the enduring importance of parental rights,
building on previous scholarship as well as our work drafting the American
Law Institute’s Restatement of the Law, Children and the Law.13 In Part I,
we explain why parental rights promote child wellbeing and thus should Restatement clarifies that the core principle and goal of modern regulation is
the promotion of child wellbeing.21
Several features distinguish what we call the “Child Wellbeing
framework” of legal regulation.22 To begin, legal rules and policies are
increasingly informed by psychological and biological research on child and
adolescent development, as well as growing empirical evidence about the
effectiveness of policy interventions.