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Thursday, July 06, 2006

"Relationship Rights of Children"

Professor James Dwyer (Wm & Mary) has a new book out, called "The Relationship Rights of Children." According to Cambridge Press, the book:

presents the first sustained theoretical analysis of what rights children should possess in connection with state decision making about their personal relationships, including legislative and judicial decisions in the areas of paternity, adoption, custody and visitation, termination of parental rights, and grandparent visitation. It examines the nature and normative foundation of adults’ rights in connection with relationships among themselves and then assesses the extent to which the moral principles underlying adults’ rights apply also to children. It concludes that the law should ascribe to children rights equivalent (though not identical) to those adults enjoy, and this would require substantial changes in the way the legal system treats children, including a reformation of the rules for establishing legal parent–child relationships at birth and of the rules for deciding whether to end a parent–child relationship.

From the sound of it, this book continues and develops arguments that Professor Dwyer has made elsewhere, including in an earlier book, "Religious Schools v. Children’s Rights," where he contended (among other things) that many religious schools damage, and violate the rights of, children by imposing upon them certain religious beliefs and religiously grounded constraints on their development and critically examined the idea (see, e.g., Pierce v. Society of Sisters) that, in a free society, parents have the right and duty to supervise and control the education and upbringing of their children.

I’ve tried elsewhere (for example, in "Taking Pierce Seriously: The Family, Religious Education, and Harm to Children") to engage, and indicate my disagreements with, Professor Dwyer’s approach and with some of his claims.  It strikes me, though – and this touches on matters raised in Brooks' post from a few days ago, and perhaps also to Dan, Ethan, and Jennifer's "Family Ties" paper – that a parents’ relationships with their children are morally and otherwise prior to the obligations and powers of the state, and that we should not regard the state so much as assigning rights to parents or as constructing the parent-child and other family relationships, but instead as standing outside those relationships, authorized -- of course -- to intrude in order to prevent harm (properly understood) to vulnerable persons.  (I recommend Steve Gilles' article, from a decade ago, "On Educating Children:  A Parentalist Manifesto").  In any event, and notwithstanding my very strong disagreements, I have found Dwyer’s work challenging and instructive.

Posted by Rick Garnett on July 6, 2006 at 11:20 AM in Constitutional thoughts | Permalink


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No man, no state, no government should take a
child from its Mothers' breast, only God himself.
When you lose your child, you lose your mind.
...and my child is supposed to fare better?

Posted by: DEBRA TAPPE | Sep 21, 2006 3:10:10 AM

Rick is correct that I ought to offer arguments for the position that the state should decide what legal family relationships children have without regard to the interests of concerned adults. As I noted, the prevailing view is that there should be a balancing of adults' and children's interests when the state decides such things as termination of parental rights and custody arrangements after divorce. So my position is contrarian, and that helps explain why the book is 350 pages. I hope I've said enough in the book to at least shake some people's confidence in the prevailing view.

On the other hand, I don't think I need to say much about why the state should be making these decisions at all. It's fairly obvious there is no good alternative. We can't say private adult citizens will just decide for themselves which children they will be in a relationship with. In addition, I can't think of any private institution we would want to make that decision, and in any event, the state would need to decide who that institution is to be and would need some reason for making that decision. Yet underlying the views of many who oppose (particular forms of) state regulation of child rearing seems to be the premise that state inaction is possible, that the state could stay entirely out of the realm of child rearing. But that premise is false, and what those holding those views (such as Gilles and Rick) actually argue for is just a different form of state action, a decision by the state to confer extensive legal power over children's lives on certain adults. So they need to offer reasons why the state should make that decision rather than a decision that is more protective of what the state regards as children's well being. Noises about the family standing conceptually outside the political or apart from and prior to the state are incoherent and can do no real work. If Rick argues instead on the basis of what is best for children, then we are on the same page morally, but one should not assert an answer to that empirical question without knowing an awful lot about child development, about the impact on children from particular parental behaviors, about the circumstances into which children are born who end up in the child protective system, about how the child protective system operates, about how children fare when raised by persons who are not biological parents, etc.. I read that empirical literature all the time, but I am still hesitant to assert any definitive conclusions about what is best for children. The point of my book is that children's welfare, and nothing else, is what should be discussed when figuring out what the legal rules should be for parentage, custody, termination, etc..

Posted by: Jim Dwyer | Jul 8, 2006 11:44:26 AM

Thanks to Jim and Marty for their comments. Marty's questions are all good ones; he is right to focus on the problem of defining "harm." As for the claim that there is "no such thing" as being prior to the existence of the state -- I don't get it. Of course there were families before there were states.

Jim's view is that adults "should have no right to actually be in a legal relationship with a child absent a reciprocal choice, by the child (if old enough) or most commonly by a proxy (which can be none other than the state)." I cannot agree.

Jim agrees with Marty "that there is a lot of question begging and vagueness in the natural law-type position that there is some relationship or right prior to state recognition." Perhaps. There is also a fair bit of "question begging" in utilitarian and "autonomy"-maximizing arguments for state intervention. Anyway, I had intended my point about the family's moral priority not so much as a "natural law" point as a garden-variety political-theory claim -- i.e., a claim about the limits imposed on the state's power by other moral commitments.

It seems to me that Jim needs to establish that it is morally justifiable -- either because it maximizes utility or for some other reason -- for the state to assert the power to decide, from the moment a child is born, that parents' preferences, plans, hopes, and rights are entirely irrelevant to the state's decisions regarding whom to permit to have custody over that child. I do not believe that this arrangement well serves children's welfare, nor do I believe it is one that well serves other concerns we justifiably have about maintaining a meaningfully free society by limiting government power.

In any event, I really appreciate Jim's reading and commenting.

Posted by: Rick Garnett | Jul 7, 2006 9:28:14 AM

I’m grateful to Rick for mentioning my book. It is actually quite a departure from my earlier work. The earlier books were about parents’ control rights and children’s educational rights when parent-child legal relationships have already been established and presumably will continue. This book is about the respective rights of adults and children to be in or out of relationships with each other in the first place. In the earlier books, I took the position that parents should not be viewed as having any rights per se to control children’s lives, just as guardians for incompetent adults are not viewed as having rights per se to control the lives of their wards (but rather a privilege to occupy a role that entails some state-prescribed authority and powers). In this book I grant that adults have relationship rights vis a vis children, but contend that those rights should be no greater than the rights we adults have in connection with our relationships with each other – that is, we adults have a right to decide for ourselves whether we want to be in a legal relationship with a child, and so to make ourselves available for and be considered for a legal relationship with a child, but we should have no right to actually be in a legal relationship with a child absent a reciprocal choice, by the child (if old enough) or most commonly by a proxy (which can be none other than the state). Similarly, we each have a right to choose whether we can potentially be in a relationship with another adult, but we have no right to actually be in a marriage or other relationship with another adult unless he or she chooses to be in a relationship with us. In the book, I explain why the theoretical foundation of the relationship rights we adults enjoy can and should be extended to confer equivalent (not identical) rights on children.

And in this book I’m not really arguing for a broader conception of harm. The kinds of harms to children that are at issue are ones recognized by pretty much everyone – serious physical or sexual abuse and severe neglect. My target is more the prevailing view that in making relationship decisions for children, the state should balance parental interests and children’s interests. I argue that the state should consider only children’s interests in deciding, for example, whether to confer legal parenthood on a mother who is addicted to drugs or whether to terminate the legal relationship between a child and a father who has been sentenced to ten years in prison. When I decide whether to be in a relationship with some other adult, I am not required to balance their interests against mine; I have a right to base my decisions on what I think is in my best interests. Thus, it would amount to conferring a lesser right on children to require legally that their surrogate decision maker (a legislature or judge) consider the interests of concerned adults in making the surrogate decisions. Adults’ interests receive all the attention they are owed when the adults are given the right to decide for themselves whether they want to be in a relationship with the child (as is the case today; biological parents can quite easily avoid a social relationship with their offspring, and fairly easily avoid or slough off a legal relationship).

Marty is right that there is a lot of question begging and vagueness in the natural law-type position that there is some relationship or right prior to state recognition. If the doctor in a delivery room decides she wants to take a child home instead of the biological parents’ doing so, the only thing that is going to help the biological parents are state-conferred legal rights. The state has to make a decision about what will happen the moment a child is born, in terms of what the child’s family will be, and it effectively decides at every moment of a child’s life thereafter whether the child will remain in the same family arrangement (by means of statutory rules for custody, termination of parental rights, etc.). My book asks and attempts to answer the question: on what basis does the state make these decisions? Con law scholars will be especially interested in my argument that the state should be entirely unconstrained by adults’ constitutional rights in making these decisions (and so, e.g., Palmore and Stanley were wrongly decided). Feminists will be unhappy with my argument that progressive societal aims like the social equality of women should also be irrelevant (which has implications for custody decisions at divorce, in particular).

Posted by: Jim Dwyer | Jul 6, 2006 1:39:25 PM

Rick: "parents’ relationships with their children are morally and otherwise prior to the obligations and powers of the state."

What's the "otherwise"?

And what work is "prior to" doing here? Before the existence of the state? (No such thing.) Does "prior to" mean "presumptively preferable to"? If so, on what basis -- other than a particular moral tradition that not everyone shares?

You concede that the state is "authorized -- *of course* -- to intrude in order to prevent harm (properly understood) to vulnerable persons." Ah, but doesn't that simply unravel the argument down to the question of how "harm" is "properly understood"? And by whom? *Whenever* the state acts to protect children against the wishes of their parents, it is doing so because of a collective judgment that the state's view of "harm "is superior to that of the parents. Dwyer would urge states to take a more capacious view of "harm"; you would propose a narrower view of "harm." State themselves are, naturally somewhere between the Dwyer and Garnett views. How are we to choose?

Posted by: Marty Lederman | Jul 6, 2006 12:27:18 PM

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