Children’s and Parents’ Rights: Choice and Interest Theories Revisited

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Parent, child and state


Child custody law normally is conceived as a set of rules for the decision of contests between two competing parties (usually parents) for possession and control of children. In reality, though, every custody dispute also involves two additional sets of rights and interests: those of the child; and those of the state. Sometimes the rights and interests of parents, children, and the state coincide, but often they do not. Custody law is the mechanism by which the rights and interests of children, parents (or other caregivers) and the state are ordered when they do not.


Interests vs. rights


Considerable confusion in child custody law and policy has resulted from the failure to distinguish rights from interests. In response to a parent’s assertion of a right to custody of her children, the state may assert a “right” to determine what is in children’s best interests, as a corollary to its “right” to promote the best interests of children. Children’s advocates, meanwhile, will assert children’s “right” to be raised in only one home by only one parent, or the “right” to spend an equal amount of time with both parents, or the “right” to be raised by whomever they choose, and so on.

Although it wasn’t always this way, the trend in modern times is to treat the difference between a right and an interest as merely a matter of degree along a spectrum of individual desires and value judgments. Under this approach, a right is defined as a highly desirable interest, or as an interest that is supported by policy arguments with which the user of the term agrees. In other words, if an individual’s  desire is supportable by policy arguments with which the person determining whether it is a right or an interest agrees, then it is called a right; otherwise, it is called an interest.

Judicial decisions frequently reflect this view of rights. Judges often refer to a claim as a “right” if their decision affirms or vindicates the claim, but will call it an “interest” if their decision does not affirm or vindicate the claim. In Pierce v. Soc’y of Sisters1 the Court, in the course of affirming a parent’s decision to send children to parochial school instead of public school, described a parent’s decision-making authority over her child’s religious upbringing as a “right.” Several years later, when the Court, in Prince v. Massachusetts,2 decided to reject a parent’s decision to engage her children in Jehovah’s Witness proselytizing activity, the Court described parental decision-making authority over her child’s religious upbringing as an “interest.”

There is an important difference in the core meanings of these terms, though. Right connotes something more than simply a strong or important interest. It is something that is “due to a person by just claim, legal guarantee, or moral principle.”3 An interest, on the other hand, is simply anything that may be advantageous or profitable to a person, whether justly so or not. It is unfair and unjust to deprive someone of a right. It is not always unfair or unjust to deny someone a desired benefit, advantage or profit.

One way to tell the difference between a right and an interest is that a right entails a reciprocal obligation; an interest does not. Saying that someone has a right to something implies a duty on the part of  someone else to provide it. A citizen’s right to vote, for example, implies a duty on the part of government to make a ballot available to him. Interests do not have this feature. A pedophile may have an interest in access to children, but no one has an obligation to make children available to him.

The United States Supreme Court has recognized a right of parents to the custody, care and companionship of their children.4 Today, a growing number of non-parents are asserting the same “right” – step-parents, foster parents, de facto parents, “psychological” parents, contractual parents (e.g., individuals using the services of a surrogate and/or a sperm or egg donor to conceive a child.) At the same time the state, through its judiciary, is asserting an ever-expanding “right” to evaluate and reorder family relationships “in the best interests of children.” Children’s advocates, for their part, are asserting that children have “rights” and that their rights are superior to those of all others, including parents. Much of the apparent conflict between these competing claims of “right” disappear, though, when the distinction between a right and an interest is clearly and properly understood.


Moral, legal, and natural rights


All rights are traceable to three general sources: nature, morality, and positive law.

Moral rights are rights that are determined with reference to a moral code, that is, a system of right and wrong that can exist independently of any legal enactment. Depending on one’s philosophical point of view, the source of the code may be God, social contract, utilitarianism, biological imperative, phenomenological coherence, emotion, or something else. Whatever the source, though, a moral code provides a means by which to assess the propriety of a particular act or course of conduct, and it is not entirely dependent upon the existence of a governmental edict or proclamation.

Legal rights, by contrast, arise entirely from positive law, i.e., man-made laws. A legal right may or may not be coincident with a moral right. Some laws — such as those against murder, theft and prostitution – reflect moral judgments so widely and strongly held as to have been enacted into law, thus yielding both legal and moral rights. Others, such as traffic regulations and social welfare programs, give rise to legal rights but not necessarily moral rights.

Natural rights are not determined with reference to any moral or legal code. They are determined with reference to the laws of nature. More specifically, they are deduced from an analysis of observable, nearly universal aspects of human nature. The right of parents to raise their children is sometimes said to be a natural right because it is an observable, nearly universal aspect of human nature for parents to rear their young.

Prince v. Massachusetts5illustrates the differences among the three kinds of rights. The Jehovah’s Witness parent in that case asserted a right to have her child distribute religious literature to the public. That asserted right was a moral right because it was something that may be determined with reference to a moral code; specifically, the moral code comprised of Biblical passages as they have been interpreted by members of the Jehovah’s Witnesses denomination. She did not have the legal right to do this, however, because the state of Massachusetts had enacted child labor laws prohibiting it. Since having one’s child distribute literature in public is not an observable, nearly universal aspect of human nature, it was not a natural right, either. Natural rights would have been implicated if the state had gone one step further and removed the child from the parent’s care. Then the parent’s natural rights would have been implicated because the state, in that case, would have been acting contrary to the observable, nearly universal feature of human nature that children are raised by their parents.


Parents’ rights


Justice James McReynolds, writing for the majority of the U.S. Supreme Court in Pierce v. Society of Sisters,6 declared, “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”7 With these words the Court, for the first time, announced that parental rights are fundamental rights that are constitutionally protected from governmental interference. Indeed, they are so plainly and obviously fundamental natural rights that they do not need to be explicitly spelled out in the Constitution to receive protection.8

Parental rights are not quite as plain and obvious to some lower courts today as they were to Justice McReynolds. In one relatively recent case, for example, a West Virginia family court awarded custody of a four-year-old girl to her babysitters, despite the presence of an able, willing, fit parent. Eventually the court restored primary custodial status to the mother, but still required her to share the child with the babysitters. It was only by pursuing an appeal to the West Virginia Supreme Court of Appeals that the mother was finally able to secure full custody of her child. In reversing the lower court, the West Virginia appellate court noted that it was “deeply troubled by the utter disregard” for parental rights the family court had demonstrated.9

Regard for parental rights has waned in non-judicial circles, too. Some modern writers have gone so far as to suggest that the entire notion of parental rights should be scrapped; that parenthood should be considered a privilege rather than a right; and that the state should have the power to grant or withhold the license as it sees fit.10

The idea of parental licensing probably would have suited former United States Supreme Court Justice Oliver Wendell Holmes just fine. In Buck v. Bell 11 he pointedly declared that “three generations of imbeciles are enough” before proceeding to affirm the state’s power to sterilize “socially inadequate” people in order to improve the quality of the human gene pool.

Opponents of eugenics and parental licensing, on the other hand, maintain that procreation and child-rearing are not privileges, but rights – specifically, natural and moral rights.12

Do human beings have a right to procreate and raise the children they produce, or do they merely have an interest in doing these things? To answer that question, a good place to start is to ask whether it would be unfair or unjust to prevent people from procreating and raising their offspring themselves. If so, then procreation and child-rearing can be said to partake more in the quality of rights than interests.

If fairness is determined with reference to a moral code that posits the existence of a God who has issued the commandment, “Be fruitful and multiply,” as the Bible of the Christian faith does in Genesis 1:28, then a ban on parenting would violate that code. That is to say, it would be an unjust law. At least from the Christian perspective, then, parenting is not merely an interest; it is a moral right.

If justice and fairness are determined with reference to natural law rather than moral codes, then the relevant question to ask is whether it is an observable, nearly universal aspect of human nature for human beings to procreate and rear their young. The answer to this question, of course, is yes. If it were not human nature to procreate, then the human race would have become extinct long ago. It is an observable, nearly universal aspect of mammalian species to procreate and care for one’s own offspring. Human beings are mammals. Therefore, it can be concluded that parenting one’s children is not merely an interest; it is a natural right.13

Seventeenth century philosopher Thomas Hobbes argued that only mothers have natural rights; that fathers’ rights are a matter of positive law, coming into existence only if, and to the extent, a sovereign creates them. His reasoning was that “in the condition of mere nature, where there are no matrimonial laws, it cannot be known who is the father, unless it be declared by the mother. And therefore the right of dominion over the child dependeth on her will and is consequently hers.”14 As science has now demonstrated, the notion that a child’s paternity cannot be established in any way other than through the mother’s testimony is not true. Paternity can be established in other ways, most notably through genetic testing. Even if that were not the case, though, Hobbes’ argument would still be unsound. There is a difference between the existence of a right, on one hand, and knowledge of who the holder of the right is, on the other. It is possible for a person to have a right to claim a deduction on his taxes without being aware of it, or for a person to be an heir to an estate and not be aware of it.  It cannot logically be concluded from the fact that the sole surviving heir of a decedent is not aware that he is the sole surviving heir, or is not aware of the decedent’s death, that he therefore has no inheritance rights. Of course, it may be necessary for a person to become aware of the existence of a right in order to effectively exercise it, but that is a different proposition from saying that the right does not exist.

In short, parental rights are both natural and moral rights. Since the U.S. Supreme Court has held that they are protected by the Fourteenth Amendment of the Constitution, they are now legal rights, as well.


Definitional challenges


While it is relatively easy to conclude that parents have natural, moral and legal rights to the custody of their children, defining who is a parent is not as simple. Historically, the term was understood to refer to a male and a female who produced a child by engaging in sexual intercourse with each other. This is still the most common understanding of the term. Sometimes, though, someone other than the biological parent assumes responsibility for a child. The best example is adoption, wherein the law confers all the rights and responsibilities of a biological parent on a person who has no biological connection to the child. But what about the person who raises an abandoned child as her own without the benefit of an adoption order? Or the husband who raises a child born during his marriage to the mother, under the mistaken belief that he is the father? And what about the person who raises a child under the mistaken belief she has adopted a child, when in fact the adoption was invalid for some reason? She may not have all the legal rights that a formal adoption would secure to her, but does that mean she does not have any rights at all? More to the point, should people under circumstances such as these be permitted to assert a right to custody on the basis of the care they have provided and a child’s emotional attachment to them?

Some courts have answered that question in the affirmative, describing such  persons as standing in loco parentis to a child.

In the case of a biological parent’s abandonment of a child, the abandonment may be treated as a voluntary relinquishment of parental rights. The de facto parent does not have any legal rights as a parent, but since nobody in this situation has any parental rights, the court is free to make a custody decision solely on the basis of what it believes to be in the child’s best interests. The harder questions arise in cases in which the biological parent has not relinquished his parental rights. In these cases, courts balance the natural rights of biological parents against what they believe is in a child’s best interests.

As difficult as this has been for courts to work out, advances in assisted reproduction technologies have complicated things even more. By making it possible for people to produce children without coital coupling, assisted reproductive technology has forced a re-examination of the fundamental concepts of parenthood and parental rights.

Most of us would not see any valid reason to distinguish between the parental rights of a couple that produces a child by ordinary sexual intercourse, on one hand, and a couple that produces a child by placing the man’s own sperm cells in the woman’s vagina with a device other than the man’ penis, on the other. We would readily say that the woman is the mother and the man is the father in both cases. But what if the man is sterile and, instead of using the man’s sperm cells, they visit a sperm bank and acquire some from an anonymous donor? The “psychological parent” doctrine is of no avail to the man in this situation because an embryo cannot form a psychological attachment to the man while it is in utero, and the man will not be able to assert a record of performing parental functions until the child has been kicking around outside the uterus for some time. Still,  does it make sense to say that the anonymous sperm donor has a superior right to custody simply because he contributed a single cell, while a man (usually, but not always, the husband) who pledges to undertake a lifetime of care, love and responsibility has no rights?

Embryo donation and surrogate parenting have added more layers of complication to things. Is the woman in whose body (or from whose egg) an embryo is formed the mother, or is it the woman who actually carries the baby to term and gives birth? If the answer depends on the existence of a contract, then what of the public policy against allowing parents to contractually evade parental responsibilities, or the public policy against trafficking in babies?

Moreover, since fatherhood is not dependent on marriage (unmarried men are nevertheless the fathers of their illegitimate children), the answers to none of these questions should depend on whether the couple is married or not. But if that is true, and if it is not the donation of a sperm or egg that defines a person as a parent, then there would seem to be no logical reason why a gay or lesbian couple should not be regarded as the parents of a child conceived through assisted reproductive technology even in a state that does not authorize same-sex marriage, and with no greater need for a formal adoption than a married couple would have.

The question whether this is a good outcome, as a matter of public policy, is currently a matter of some debate. Underlying it, though, is a more fundamental legal problem. If a marital connection is not required in order to acquire parental custody rights, and if neither a biological nor an adoptive connection is required, either, and if not even an established psychological attachment achieved through works is necessary, then it would seem that nothing is left to qualify a person as a parent other than the simple desire to be one. That being the case, there would seem to be no logical reason why a collective association of individuals, or the board of directors of a corporation, or indeed, a complete stranger to a child, would not have standing to assert “parent” status and, as such, enjoy a constitutionally-protected fundamental right to custody.

Is all of this a reductio ad absurdum argument against the very notion of parental rights? If so, that would seem to necessitate the conclusion that there are no real limits on the power of the state to place children with any person at all, irrespective of any biological, marital, adoptive or psychological connection between the child and the child-care provider the state selects for the child. While Socrates may have liked this idea,  others (including former – and, to some extent, current — members of the United States Supreme Court) believe there is still something of value in the idea of two people coming together to procreate and raise the product of their union together, with the right to provide for their children what the parents decide for themselves is in their children’s best interests.


The state’s interest


In its role as  parens patriae15 the state is responsible for the care of all infants within its jurisdiction. More precisely, the state has an interest in protecting children from harm when their parents either cannot or will not do it themselves.

The state’s  parens patriae power is of ancient origin.16 In England, it was exercised by the chancery (equity) courts. It still is today, but in the United States it is exercised by family courts in marital dissolutions and other custody proceedings. It is also reflected in laws establishing juvenile courts and providing for the protection of children from abuse and neglect. When necessary, it includes the power of the state to remove children from parents and place them in the care of another person (guardian, foster parent, etc.)

In its most radical formulation, the  parens patriae doctrine posits that parents transfer their natural rights to the state upon entering into the social contract with the state. Under this view, a person is deemed to have entered into the contract upon acquiring citizenship in a country. For persons born in the United States, this would mean that immediately upon being born a person transfers all his natural rights to the state. The theory then posits that parental rights, having been delegated to the state at the outset of a person’s life, exist only to the extent the state chooses to dole them out. Carried to its logical conclusion, this would mean that a parent does not have any right to the custody of her own child at all unless, until and only to the extent that the state specifically grants her that right. A responsible state will only grant that right to a parent if placement with the parent will promote the welfare and advance the interests of the child.17

A more moderate formulation of the  parens patriae doctrine views the state as neither the conqueror nor the assignee of its citizens’ rights. Instead, it is viewed as a body that has been formed for the purpose of advancing its citizens’ collective interests. The state’s interest in promoting the welfare of the children within its borders is viewed as a facet of the general governmental interest in promoting the well-being of its citizenry. Under this approach, people do not surrender all their rights to the state immediately upon being born. Rather, they retain their natural rights while at the same time authorizing the state to take such actions as may be necessary and proper to advance the collective interests of its citizenry so long as it can be accomplished without abrogating the fundamental natural rights retained by the people. One of the interests the state is authorized to advance and protect is the general welfare  of those of its citizens who are children.

Under either formulation, it can readily be seen that two general governmental interests are served by ensuring that children grow and develop into healthy, well-adjusted adults. First, a steady supply of strong, healthy adults is needed for a nation’s defense. Second, healthy, well-adjusted adults tend to be more capable of earning incomes than unhealthy, maladjusted adults are. This is an important consideration to governments that generate revenue through income taxes.

The state also has an interest in preserving its own funds. Preventing the dependency of children on the state furthers that interest.


Children’s rights and interests


The legal status of children

The question whether children can have rights, as distinguished from interests, depends at least in part on their legal status within a society. The legal status of children in America has always been somewhat ambiguous. The Fourteenth Amendment of the U.S. Constitution unequivocally declares: “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” and prohibits states from abridging any citizen’s privileges or immunities, and from denying any citizen the equal protection of the laws. Children who are born or naturalized in the United States meet the Fourteenth Amendment criteria for citizenship. Yet, many laws clearly deny them equal protection. Children, for example, do not have the right to vote.18 They do not have the right to bear arms.19 Even though they may, upon reaching a certain age, have the same ability to procreate, they do not have the same reproductive rights that adults do.20 They do not have the same rights of privacy that adults do.21 They do not have the same right to freedom of speech that adults have.22 They do not even have the same right to protection from physical assault that adults have. 23

The reason for these inconsistencies is that although the Fourteenth Amendment defines them as citizens, the law does not regard children as fully developed persons with the capacity for well-reasoned, independent thought. They are dependent on others to care for them and make decisions for them. The law anticipates and expects children to acquire and develop their capacities over time. In the interest of uniformity and certainty, the law specifies an age by which this is deemed to have occurred. In most states, and for most purposes, the age that has been selected for this purpose is eighteen.

This explanation, however, raises another question: If the reason children do not possess the same rights as adults is that they are not yet persons in the eyes of the law, then what exactly are they? Are they simply a kind of property, like their parents’ cars, houseplants and pets? It doesn’t seem appropriate to think of them that way. Yet if they are not people and they are not property, then what are they?

At various times, and to varying degrees, children have been regarded in the law as being an extension of the mother’s body, as the abortion rights cases and common law rules affording unwed mothers the exclusive right to place their children for adoption illustrate.24 At other times, such as the nineteenth century, the law has treated children as something similar to the property of their parents, having a legal status akin to that of slaves or livestock.25 To the drafters of the mid-nineteenth century Civil Rights Amendments, it probably made no more sense to worry about whether “all persons” might someday be interpreted to include children than to worry about whether they were inadvertently giving cows and sheep legal rights.

Juxtaposed against the legal view of children as livestock, slaves or tissue is the Christian view that children actually are persons. There is Biblical support for the view that children not only are people, but they are to be exalted as such.26 According to World Vision International, the Christian philosophy is that children should not be treated as miniature adults, the property of adults, or mere extensions of adults. Rather, “they need to be prioritized as persons whose God-given rights are just as important as any other component of society.”27

From the Christian perspective, children have moral rights, the most important of which is the right to be protected from sin (moral harm) at the hands of adults.28 Laws prohibiting child pornography, child sex abuse, and contributing to the delinquency of a minor are some examples of laws that codify the Christianity-based moral right of children to be protected from sin at the hands of adults.

To determine whether children have any natural rights, it is necessary to ask whether the claimed right is an observable, nearly universal aspect of human nature. If so, then it is a natural right. It is an observable, nearly universal aspect of human nature for parents to nurture, care for, protect and provide companionship for their children, and for children to depend on their parents for those things. Therefore, it may be said that children have a natural right to the nurture, care, companionship and protection of their parents. The natural obligation reciprocal to this right, of course, is the obligation parents owe to their children to nurture, care for, protect and provide for their children.29

Children also have certain legal rights that do not find their origin in either a moral code or the laws of nature. The right to a free and appropriate education is one example.30 The body of child labor laws giving children certain legal rights with respect to hours, wages and conditions of employment is another.

Recognition that children have moral, natural and legal rights may reflect increasing legal acceptance of the Christian perspective of children as people. On the other hand, like the animal rights movement, it may simply reflect a greater societal willingness to extend legal protections to sentient non-persons.


The “choice” theory of children’s rights


Choice theory understands rights as being dependent upon the free will (autonomy) of an individual to make choices. The theory posits that people who lack that capacity, such as mentally incompetent adults and young children, cannot have rights; they can only have interests.31 They do not acquire rights until they grow into adults because it is only then that they can be assumed to have acquired powers of reason and judgment sufficient to enable them to make truly autonomous choices.

Choice theory, however, is vulnerable to several criticisms. First, children do not develop at the same rates. Some children reach a level of reason, maturity and judgment in their teens that others do not reach until their twenties or later. That being the case, it would make no sense for laws to differentiate between groups of people with respect to their legal rights on the basis of chronological age. Indeed, application of choice theory would seem to mean that laws classifying people on the basis of age with respect to fundamental rights such as the right to vote, the right to travel, the right to work, the right to freedom of expression and other fundamental rights could not survive Fourteenth Amendment challenge because they could not be said to be narrowly tailored to achieve a compelling state interest. Administrative convenience traditionally has not been considered a sufficiently compelling state interest to justify discrimination in connection with the exercise of a fundamental right.

Next, choice theory does not explain how it is that an adult can continue to have rights even if his capacity for independent thought and judgment becomes impaired. In the United States, developmentally disabled and mentally ill adults continue to possess fundamental constitutional rights, such as the right to vote, the right to due process of law and so on, even though they may have lost the capacity for rational thought, and even though they have become dependent on others to make decisions and exercise their wills for them.

Finally, making all rights contingent upon reaching a sufficient level of maturity and judgment to make reasonable decisions is not easily squared with the fact that rights entail reciprocal obligations. For example, it is universally agreed in every jurisdiction that all people have an obligation to refrain from intentionally, and without excuse or justification, shooting other people. Reciprocal to that obligation is the right of every citizen to freedom from being intentionally shot by another person without excuse or justification. By tying the existence of a right to an individual’s having attained adult levels of reason, intelligence and judgment, choice theory would suggest that only those who have attained that level would have the right to be free from being shot. Since children have not attained that level, this would seem to mean that while adults have a right to be free from being shot, children do not. Carrying choice theory to its logical conclusion, then, would seem to lead to the declaration of open season on children. Clearly, something must be missing from the theory.


Rights equivalency: children as miniature adults


John Holt, an early advocate of children’s rights, enumerated eleven rights that he believed children should have: the right to vote; the right to equal treatment under the law; the right to be legally responsible for one’s actions; the right to work for money; the right to privacy; the right to financial independence and autonomy (the rights to own, buy and sell property; to borrow money; and to enter into binding contracts); the right to manage one’s own education; the right to travel and to live away from home; the right to whatever minimum income the state guarantees to adult citizens; the right to choose guardians other than one’s own parents; and the right to do anything and everything that an adult may legally do.32 In other words, in Holt’s view, the law should treat children exactly the same as it treats adults.

Discarding altogether the notion that developmental levels of maturity, intelligence and judgment have any relevance at all to rights, Holt’s approach has the advantage of avoiding all of the criticisms to which choice theory is vulnerable. But does treating children as miniature adults really make sense from the standpoint of fairness to children? Should a child as young as two really have the right to choose his parents and caretakers? What if the guardian the child selects is not willing and able to properly raise children? Worse, what if the child’s proposed caretaker seeks to exploit children in harmful ways? It is common for pedophiles to groom children for victimization by gaining their trust, buying them gifts and the like, while at the same time working to alienate them from their parents. Some cults have been known to engage in similar tactics. Should a parent really be made legally powerless to countermand the child’s wishes in these situations?

The same kinds of questions can be asked regarding the other rights Holt has proposed. Should the state really allow eight-year-olds to do anything an adult can do, such as drive a car and buy alcohol and tobacco?33 Should a child really have the right to enter into binding contracts? Suppose a ten-year-old child enters into a contract to lease a fleet of jet planes for hundreds of thousands of dollars per year and then neglects to cancel the contract. Does it really make sense to saddle him with millions of dollars of debt for the rest of his life simply because he lacked the intelligence and maturity to make a reasonable adult decision at the age of ten?


Interest theory


At the other end of the spectrum from the idea that children and adults have equivalent rights stands interest theory. As its name suggests, interest theory simply equates rights with interests.

Amnesty International’s definition of children’s rights is an example of this approach. Because children have interests in receiving an education, being paroled if convicted of a crime, being spared the death penalty, and not being exploited for military service, Amnesty International defines these things as their rights.34

The American Academy of Matrimonial Lawyers (AAML) has used interest theory to define children’s rights in the family law context. According to the AAML, children have rights to a physically and emotionally safe environment; to be loved by their parents; to express a desire to be with one or another parent; to refrain from expressing a choice between one or another parent; to freedom from being put in the middle of their parents’ disputes; to contact with extended family members; to have feelings; and “the right to be a child.”35

Probably the most controversial application of interest theory is the United Nations’ Convention on the Rights of the Child (CRC.) The CRC defines children’s rights to include, inter alia: the right to live; to be protected from physical and mental maltreatment; to a free education; to healthy development; to have adults act in their best interests; to parental care; to live with their parents and to have continuing contact with both parents unless harmful to the child; to have a say in parental decisions affecting them; to special care enabling them to live full and independent lives if they are disabled; to the best health care possible; to safe drinking water; to nutritious food; to a safe and clean environment; to a good standard of living; to help from the government if they are poor; to participate in a wide variety of cultural, artistic and recreational activities; to play; and to relax.36

The United States is one of two countries that has not yet ratified the CRC.37

Some of the items listed in the CRC certainly sound like good ideas. Children should be allowed to play, relax and enjoy different kinds of cultural and recreational activities. Remembering that rights imply reciprocal obligations, though, does it really make sense to describe these things as “rights”?


Example. June tells her eight-year-old son Theodore that he must clean his room. Theodore wants to relax and play video games instead. Meanwhile, twelve-year-old brother Wallace announces that he plans to meet up with some juvenile gang member buddies to attend a rap concert featuring Brotha Lynch Hung and the Insane Clown Posse. June says no. Theodore grabs the video game controller and lies down on the couch to play. Wallace, meanwhile, starts getting ready for the concert. June tells Ward the children are being disobedient. Ward addresses the boys as follows: “Theodore, you are to clean your room right now. Wallace, you may not attend the rap concert.” The boys try to voice their opposition to Ward’s decision but he cuts them off, saying, “I don’t want to hear a word from either of you. I’ve made my decision.”


If the items listed in the CRC are deemed to be rights rather than interests, then Ward would be guilty of violating CRC Article 12 (“the right to express…views freely in all matters affecting the child”); Article 13 (“the right to freedom of expression”); Article 15 (“freedom of association”); and Article 31 (“the right of the child to rest and leisure, to engage in play and recreational activities…and to participate freely in cultural life and the arts.”)

Rights imply remedies.38 Does it make sense to think of Ward’s conduct toward Theodore and Wallace as providing grounds for a formal complaint against Ward in an international court of human rights? Or does it make more sense to think about the things identified in the CRC as interests rather than rights?

The foregoing example illustrates what is probably the most significant shortcoming of interest theory: It does not address the implications of the fact that rights entail reciprocal obligations. To see this even more clearly, consider whether the fact that a child’s interests are better served by having an entire warehouse of toys rather than merely an entire room full of them means that his parents have an obligation to provide more than a roomful of toys for him. Interest theory would say that it does. But this does not comport with our intuitive sense of fairness. Without more information, the fact that a parent gives his child an entire roomful of toys instead of an entire warehouse full of toys would not lead most of us to conclude that the child is being treated unfairly.

In short, although interest theory avoids some of the conundrums in which choice theory is mired, it is less than satisfactory as a workable theory for the determination of the nature and content of children’s rights.


Developmental rights


Neither choice theory nor interest theory yields a very satisfying solution to the problem of children’s rights. Professor Anne C. Dailey has suggested a third approach. Dailey suggests that a separate category of rights exists especially for children, a category which she calls developmental rights.

As we have seen, a strict application of choice theory would mean that children do not have any rights at all until they attain the age at which the law deems them to have acquired the ability to make autonomous decisions. Clearly, children do have some rights, though, such as the right to be free from physical and sexual abuse. Professor Dailey reconciles choice theory with the existence of children’s rights by suggesting that children’s rights derive not from the fact that they are autonomous beings with the capacity to make choices, but from their need to develop into autonomous beings who someday will have that capacity. These rights, collectively referred to as developmental rights, “operate to secure children’s future autonomy by promoting their socialization into autonomous adults.”39

Dailey argues that children have a fundamental developmental right in the caregiving relationship, the principal manifestations of that right being: (1) freedom from state intervention into established caregiving relationships; (2) rights arising under constitutional provisions “where the rights at issue touch upon their caregiving interests” and (3) a right to a minimum level of caregiving services from the state, focusing on state support for the caregiving relationships needed to become autonomous adults.40

Although not articulated as such, the notion of developmental rights was applied by the U.S. Supreme Court in West Virginia State Board of Education v. Barnette41  to reach the conclusion that public schools cannot constitutionally force Jehovah’s Witness children to recite the Pledge of Allegiance. On the surface, the decision appears to stand for the proposition that children are fully autonomous persons entitled to the same constitutional rights as adults. On closer scrutiny, though, what the Court actually said was that the fact that schools “are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to… teach youth to discount important principles of our government as mere platitudes.”42 The Court was not saying that it is the child’s character as an autonomous person that makes him worthy of constitutional protection. Rather, the Court was saying that it is the utility of an asserted right as a means of promoting, or at least not impeding, children’s development into autonomous individuals and their socialization into a democratic society that imbues it with constitutional protection.

This notion was reiterated in Tinker v. Des Moines Independent Community School District,43 the U.S. Supreme Court decision holding that schoolchildren have a First Amendment right to wear black armbands to express their opposition to war. “Students in school as well as out of school are ‘persons’ under our Constitution,” the Court declared, “They are possessed of fundamental rights which the State must respect….”44 As later cases have made clear, though, the constitutional rights of schoolchildren are not coextensive with those of adults.45  The Court has clarified that the rationale for protecting children’s speech rights is not that they are autonomous persons, or miniature adults, but that doing so “prepares students for active and effective participation in the…society in which they will soon be adult members.”46

The theory of developmental rights is a useful one for understanding how courts have interpreted and applied important provisions of the Constitution, but does it bring us back to treating interests as rights, at least insofar as children are concerned? It seems that an argument could be made that each of the interests described as rights in the CRC helps develop children into autonomous adults and prepares them for active and effective participation in the society in which they will become adults. That being the case, it would seem that the developmental rights theory is just as vulnerable as interest theory is to the criticism that it fails to account for the fairness and reciprocity aspects of rights.

Further, it may be asked whether it makes sense to condition the existence of a child’s right on the acceptance of one or another theory of child development. The radically different conclusions that are being reached in the school speech cases by the conservative Court today as compared to those that were being handed down by the more liberal Court of the 1960’s and 1970’s certainly seem to suggest that it doesn’t. How prudent is it to make fundamental rights contingent upon whatever happens to be the most popular child development theory of the day?

Child development theories are not constant. To the contrary, they undergo significant changes with some degree of regularity. In 1914, child-rearing authorities maintained that parents should avoid playing with their children, should not comfort their children, should not pick a baby up when he is crying, as these things supposedly condition children for dependence.47 Expert opinions on child-rearing changed radically with the publication of Dr. Benjamin Spock’s Baby and Child Care in 1946. In Dr. Spock’s view, it was the absence of parent-child interaction (play, touching, etc.) that damaged children. Dr. Spock’s views held sway for much of the second half of the twentieth century, but now they are being called into question by new experts who say that Dr. Spock’s permissive approach is harmful to children. Should fundamental legal rights be made contingent upon changing psychological theories about what children need for their proper development into adults, when even the psychological experts themselves cannot agree on what that is?


Choice theory revisited


Interest theorists maintain that rights are simply things that make the rights holder better off, i.e., that they are merely interests. To an interest theorist, a right arises anytime some aspect of a person’s well-being (an interest he has) is strong enough to justify imposing a duty on another person or group of persons to provide the benefit to him.Choice theorists (sometimes called will theorists) posit that the function of a right is to give its holder power over another person’s duty through an exercise of the will, so that a rightholder is basically “a small scale sovereign.”48

As we have seen, a major problem with interest theory is that it does not comport with the ordinary understanding of rights as entailing reciprocal obligations. A person may have a very strong interest in winning the top monetary prize on the Who Wants to Be a Millionaire program, but that does not mean that the show’s producers therefore have a duty to ensure that he is given only those questions which they are certain he will be able to answer correctly. A proponent of interest theory might respond that interest theory does not elevate an interest to a right unless the interest is important enough to justify imposing a duty on another person to do something. Going back to our game show example, suppose the person is dying from a rare disease that can only be cured through an expensive form of medical treatment that is not covered by insurance. This would seem to give him a very strong interest in having the prize money awarded to him. Does it really follow from this, though, that the show’s producers now therefore owe him an enforceable duty to ensure that he is given sufficiently easy questions to enable him to win the prize money? What if two people have the same rare disease, such that each has an equal interest in getting the prize money? Since both interests are strong enough to justify imposing a duty on the contest sponsors, the contest sponsors would then owe both contestants a duty to award each of them the prize money.49 No matter which contestant got the money, the contest sponsors would be fulfilling an obligation to one while breaching an obligation to the other. That is to say, applying interest theory leads to the absurd result that the same act can simultaneously be both right and wrong.

The principal criticism of choice theory, on the other hand, is that it does not account for the possession of rights by beings who are incapable of exercising sovereignty, such as mentally incompetent adults, animals and children.50 Properly understood, however, choice theory does not necessarily have to mandate the ability to exercise power over another person’s duty as a precondition to the existence of a right. Rather, the theory may be understood as predicating the existence of a right on a person’s authority to exercise power over another person’s duty, not his actual ability to do so.


Example. Testator dies leaving a will in which he bequeaths his automobile to his comatose wife, Karen, and his newborn baby boy, Tommy. The will appoints Edgar the executor of the will, giving him full powers of alienation over the estate. The automobile is drivable but due to its high mileage it has no significant market value. Edgar is poor and is badly in need of a car.


Here, the will clearly has conferred a duty upon Edgar to convey the automobile to Karen and Tommy, but neither of them would derive any benefit from owning the car. Under a comparative benefit or interest theory of rights, Edgar would have a right to convey the car to himself because the balance of interests in ownership of the car weighs heavily in his favor, even though doing so is self-serving and contrary to the express provisions of the will.

Traditional choice theory would not seem to be of any avail to Karen and Tommy in this situation. Neither of them has the ability to exercise any power over Edgar’s duty (or anybody else’s duty, for that matter) because one is an infant and the other is comatose. Accordingly, it would seem that neither choice theory nor interest theory would yield any rights for Karen and Tommy. This outcome, however, is contrary to the law. Most people would most likely find it repugnant to their intuitive sense of right and wrong, as well. Karen and Tommy are the intended beneficiaries under the will. The car should go to them.

What is missing from traditional choice-theory analysis here, of course, is recognition that while Karen and Tommy may not have the ability to exercise power over Edgar’s duty with respect to the disposition of the car, nothing gives Edgar any greater authority over his duty than what Karen and Tommy possess. In fact, Karen and Tommy have more authority over Edgar’s duty than Edgar does because the same will from which Edgar derives his power to re-title the car also limits it to the power to re-title it in the names of Karen and Tommy only. As a result, Karen and Tommy have a greater right to the car than Edgar does, even though they may not have the personal ability to exercise that right.

The same kind of analysis can be applied in the custody context.


Example. Fred and Wilma, an unmarried couple, have a newborn baby, Pebbles. Wilma belongs to a religion that believes babies must be exposed to rattlesnakes to determine whether it is God’s will for them to live or die. Fred disagrees, so Wilma evicts him from their home and does not allow him to see the baby anymore.


Under the laws of most states Fred, as an unmarried father, would have no legal rights at all in this scenario unless and until he obtains a court order declaring that it is in Pebbles’ best interests for Fred to have parental rights. Wilma may have duties, as the child’s mother, to protect her child and to allow her child to form a bond with her father, but Pebbles, as a newborn baby, does not have the ability to exercise power over those duties. Under the ability-to-exercise-will approach to choice theory, Pebbles would not have any rights at all in this situation. On the other hand, Wilma does not have any greater authority to waive her duties than Pebbles does. Pebbles may not have the ability to exercise a choice with respect to Wilma’s duty, but she has greater authority to do so than Wilma does.

Understanding choice theory as being founded on the authority to make choices rather than on the ability to make choices overcomes the objection that choice theory does not yield any rights for children. Viewed in this way, it becomes unnecessary to postulate the existence of a new category of rights founded in interest-theory. Of course, it will still be necessary to analyze natural, moral and positive law to determine the specific contours and limits of a child’s authority in each of those contexts. Those determinations will not always be easy to make. They may be aided, however, by asking two principal analytical questions: (1) Is the proposed authority merely beneficial to the child, or would the failure to recognize it seem unfair? and (2) Is there a corresponding duty on the part of another person to recognize and comply with the proposed authority?


Parental vs. state authority


Reconstructing choice theory in terms of the authority to make choices rather than the ability to make choices salvages choice theory, but it raises a question that is at least as difficult to answer as the question whether children have rights at all, namely, what (or who) is the source of a child’s decision-making authority? When the source of the authority is positive law, the answer is easy. A statute, regulation, judicial precedent, will, trust or contract establishes the authority. But what if there is no statute, regulation, judicial precedent, will, trust or contract that applies to the situation? Does the child’s authority to make choices then derive from the same source as that from which adults derive their authority (that is, the same moral code or law of nature) or is it something a child possesses only because, and only to the extent that, it has been delegated to him by his parents and/or the state?

Young children generally are not mature enough to know what is in their best interests in the long-term. Children tend to select options that provide immediate gratification, options that do not always promote long-term health. An eight-year-old, for instance, may think it is in his best interests to stay home eating candy and playing video games all day instead of going to school. A prudent society will reserve at least some of a child’s decision-making authority to an adult until such time as the child develops sufficient maturity, intelligence and judgment to make responsible decisions for himself.

In the natural order of things, parents normally are the adults to whom a species delegates the power to make decisions for children. This is congruent with one of the oldest presumptions recognized in the law: that natural bonds of affection normally lead parents to act in the best interests of their children.51  Of course, the fact that there are thousands of cases of child abuse, neglect and infanticide every year casts some doubt on the tenability of that presumption. Still, the fact that some parents abuse their children does not mean that no parent ever acts in the best interests of her children. If that were the case, then children’s best interests would be served by removing all children from their parents and placing them in the protective care of the state immediately upon birth. Of course, even if that could be done, there would still be no guarantee that the state would do a better job of raising children than most parents do.

Perhaps the proper inference to be drawn from the fact that so many parents mistreat their children is not that the presumption must be discarded, but simply that it needs to be stated more precisely. Perhaps it would be more accurate to say that natural bonds of affection lead most parents to act in the best interests of their children most of the time.

Parents are human beings. As such, they are possessed of both species-preservation interests (food, shelter, sexual reproduction, etc.) and aesthetic interests (recreation, cultural events, etc.) long before they have children. They do not shed those interests when they have children. Rather, becoming a parent means becoming responsible for two sets of interests – the parent’s and the child’s. Frequently, those interests conflict. At two o’clock in the morning, a parent may have an interest in sleeping, but her newborn baby may have a strong interest in ingesting food or having a diaper changed. A child may have an interest in getting help with his homework, while his parent may have an interest in watching a television program. A parent may have an interest in playing football with his son, while his son may only be interested in reading books. An isolated mother may have an interest in the companionship of a teenage daughter, but the daughter might prefer to spend her time dating members of the opposite sex. A child may have an interest in listening to Alvin and the Chipmunks songs, while a parent may have an interest in listening to anything but that. And so on.

In reality, no parent acts in his child’s interests all of the time. Parents will sometimes act in their own interests, and sometimes they will act in their children’s interests. Sometimes a parent will stop watching the television and help her child with his homework. Sometimes she will continue watching the television and tell her child to wait until the program is over. Unquestionably, it would be in children’s best interests if their parents would always turn off the television and help them with their homework promptly upon being asked. It is unrealistic, though, to think that parents behave this way all the time. It makes more sense, therefore, to say that most parents act in the best interests of their children most of the time, not that they all do so all of the time.

Determining what is in a child’s best interests is difficult. There are almost as many different opinions about what is in children’s best interest as there are people on the planet. Whose opinion should matter? If children are viewed as the property of their parents, then the answer is obvious: the child’s parents are the only ones whose opinions matter. The right to determine for oneself whether and how to use a thing is one of the basic incidents of property ownership. If, on the other hand, children are viewed as creatures of the state, i.e., as a sensate form of public property, then only the state’s opinion about what is in children’s best interest would matter. If, instead of either of these approaches, children are viewed as persons rather than as property, then neither their parents nor the state would have a superior right to determine what is in their best interests.

Applying the theory of developmental rights, the decision whether a particular act, standard, policy, rule or practice is in a child’s best interest would be determined by analyzing the extent to which it promotes and enhances a child’s development into a healthy, autonomous adult.52 Viewed in this way parental rights are important and worthy of preservation, not because parents always act in the best interest of their children, but because children are dependent on parents not only for their sustenance and nurture, but also for the discipline and guidance that the close bond of love and affection between parent and child makes possible. Children’s best interests are served by preserving, as a societal norm, the kind of parent-child relationship in which parents have the authority, in their children’s eyes, to make and enforce rules applicable to the children in their care.53 A policy that preserves the right of parents to determine, in the first instance, what is in the best interests of their children is in children’s best interests. A prudent society therefore will empower the state to countermand parental authority only when absolutely necessary to protect children from parental determinations of what is in their best interests that are actually detrimental to them.

Properly viewed, then, the state’s parens patriae power is not a “right.” There is no obligation on the part of a child or a parent that is reciprocal to it. Rather, it is a delegation of parental authority to the state, granted on the implied condition that it will be exercised only when necessary to protect children from harm, not simply to serve the state’s vision, at any particular point in time, of what is in children’s best interests. Since it is presumed that parents generally strive to advance their children’s best interests, and since it is contrary to a child’s best interests for the state – or anyone else — to undermine parental authority unnecessarily, it must be presumed that parents would delegate to the state only such power as is necessary to protect children from the kinds of harm that are more damaging to children  than the damage that is done to the parent-child relationship when the state acts to supplant parental authority with its own. In consideration of this delegation of authority, the state has an obligation to respect the natural, moral and legal rights of parents as it exercises its delegated authority to protect their children from harm. Custody law is — or should be —  the means by which the state fulfills that obligation.

  1. 268 U.S. 510, 535 (1925)
  2. 321 U.S. 158, 165 (1944)
  3. Black’s Law Dictionary 361, 613 (2nd Pocket ed. 2001); see also John Finnis, Natural Law and Natural Right 206 (1980).
  4. Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)
  5. 321 U.S. 158 (1944)
  6. 268 U.S. 510 (1925)
  7. 535
  8. Parental rights are implicitly protected as liberty interests under the Due Process Clauses of the Fifth and Fourteenth Amendments. Id.
  9. In re Visitation and Custody of Senturi N.S.V., 652 S.E.2d 490, 499 (W.Va. 2007)
  10. See, e.g., Peg Tittle, We License Plumbers and Pilots – Why Not Parents? Seattle Post-Intelligencer (October 3, 2004) (arguing that the state should license parents and noting that the state has been screening and licensing adoptive parents for years); see also David Tebaldi, Do You Have a License to Carry That Child? The Valley Advocate (August 18, 2008).
  11. 274 U.S. 200, 207 (1927)
  12. See, e.g., William E. May, Do Married Couples Have a ‘Right’ to a Child? in Catholic Controversies: Understanding Church Teachings and Events in History 475 (Stephen Gabriel, ed., 2010).
  13. See State ex rel. Harmon v. Utterback, 108 S.E.2d 521, 527 (W. Va. 1959) (describing parental rights as “founded in nature and wisdom.”)
  14. Thomas Hobbes, Leviathan 254 (C.B. MacPherson ed., Penguin Books 1982) (1651).
  15. Literally, “parent of the country.” In legal circles, the term refers to the state in its capacity as protector of those who are unable to care for themselves. Black’s Law Dictionary 511 (2nd pocket ed. 2001).
  16. Cowles v. Cowles, 3 Ill. (Gilm.) 435 (1846).
  17. This was the rationale for the decision in People v. Mercein, 8 Paige Ch. 47 (N.Y. Ch. 1839) and Mercein v. People ex rel. Barry, 25 Wend. 64, 103 (N.Y. 1840), cases frequently cited for the proposition that custody decisions are to be made on the basis of a consideration of what is in a child’s best interests, not parental rights; see also Finlay v. Finlay, 204 N.Y. 429, 433 (1925), in which Justice Cardozo explains that “The Chancellor…does not proceed upon the theory that the…father or mother has a cause of action against the other or indeed against anyone. He acts as  parens patriae to do what is best for the interests of the child.”
  18. Cf. U.S. Const. Amend. 26
  19. See 18 U.S.C. § 922(b)(1) (2011)
  20. Planned Parenthood v. Casey, 505 U.S. 833 (1992)
  21. New Jersey v. T.L.O., 469 U.S. 325 (1985)
  22. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) (noting that the rights of schoolchildren “are not… coextensive with the rights of adults….”)
  23. Ingraham v. Wright, 430 U.S. 651 (1977) (approving corporal punishment)
  24. Cf. Associated Press, Judge: Unborn Children Don’t Count When It Comes to Carpool Lanes (January 11, 2006)
  25. Michael Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America 235 (1985); Andre P. Derdeyn, Child Custody Contests in Historical Perspective, 133 Am. J. of Psychiatry 369 (December 1976)
  26. See, e.g., Mark 9:37, 10:14-16
  27. World Vision International, Protecting Children: A Biblical Perspective on Child Rights 20 (2003)
  28. It is reported that Jesus recommended the penalty of death by drowning for any person who leads a child into sin. Mark 9:42.
  29. That children have natural rights was certainly clear to seventeenth century philosopher John Locke, who viewed children as persons (property only of God) with rights extant in the state of nature. John Locke, The Second Treatise of Government (an essay concerning the true original, extent and end of civil government) (J.W. Gough ed., 3d ed., Oxford 1966) (1690); see also 2 James Kent,Commentaries on American Law 189, 190 (llth ed. 1867) (1827) (“The duties of parents to their children, as being their natural guardians, consist in maintaining and educating them during the season of infancy and youth, and in making reasonable provision for their future usefulness and happiness in life….”)
  30. See20 U.S.C. § 1400 (2010)
  31. See, e.g., David Archard, Children: Rights and Childhood 54 (2004) (“If, as many will argue, children are incapable of exercising choice then, according to the will theory at least, they do not have rights.”)
  32. John Holt, Escape from Childhood (1974)
  33. Cf. In re Holly H., 128 Cal. Rptr. 2d 907 (Cal. Ct. App. 2002) (observing that the state has greater power to restrain children’s freedom to protect them from harm than it has to restrain the freedoms of adults.)
  34. Amnesty International, A Safe Childhood Is a Human Right,(retrieved on July 19, 2011),
  35. American Academy of Matrimonial Lawyers, Children’s Bill of Rights (2005),
  36. United Nations Convention on the Rights of the Child, 1577 Treaty Series 3 (1989)
  37. The other country is Somalia.
  38. The Federalist No. 43 (James Madison)
  39. Anne C. Dailey, Children’s Constitutional Rights, 95 Minn. L. Rev. 2099, 2103 (2011)
  40. Id. Earlier proponents of developmental rights tended to assign the reciprocal obligation corresponding to the child’s developmental rights to the child’s parents rather than the state. See, e.g., 2 KENT, supra note 29.
  41. 319 U.S. 624 (1943)
  42. Id. at 638-39
  43. 393 U.S. 503, 506 (1969)
  44. Id. at 511
  45. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U. S. 260 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U. S. 675 (1986).
  46. Board of Educ. v. Pico, 457 U.S. 853, 868 (1982)
  47. Max West, U.S. Dep’t of Labor, Care of Children Series No. 2, Bureau Pub. No. 8, Infant Care 59-61 (1914); Linda A. Pollock, Forgotten Children: Parent-Child Relations from 1500 to 1900 (1983); Martha Wolfenstein, Fun Morality: An Analysis of Recent American Child Training Literature, in Childhood in Contemporary Cultures 168-78 (Margaret Mead and Martha Wolfenstein, eds. 1955)
  48. H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory183(1982)
  49. Assume for the purpose of this example that the prize money is not capable of being divided, or is of value only if the entire amount is awarded to a single recipient.
  50. See, e.g., Neil MacCormick, Legal Right and Social Democracy 154-66 (1982)
  51. See Parham v. J.R., 442 U. S. 584 (1979); 1 William Blackstone, Commentaries *447; 2 James Kent, Commentaries on American Law *190.
  52. John Locke was of a similar mind. SeeClaire Breen, The Standard of the Best Interests of the Child: A Western Tradition in International and Comparative Law 35 (2002).
  53. Cf. Parham v. J.R., 442 U.S. 584, 602 (1979) (noting that American law has always “reflected Western civilization concepts of the family as a unit with broad parental authority over minor children”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925) (“|T|he fundamental theory of liberty…excludes any general power of the State to standardize its children.”)

Gender Polarization


The era of equality-oriented feminism that began in the 1970s and resulted in the gender-neutralization of laws in the 1980s was relatively short-lived. It was followed close-upon by a movement opposing equal rights, and demanding, instead, special legislation exclusively for the benefit of women. This movement, at times, has included a demand that even the legislative processes by which such legislation is secured be reserved exclusively for women. For example, male victims of domestic violence reportedly were not permitted to testify at Congressional hearings when the federal government’s entry into the field of domestic violence was under consideration. Those hearings yielded a Violence Against Women Act.1 Objecting to proposed changes to custody laws “because they are deliberately gender neutral,” feminists have made similar demands for the exclusion of men from legislative hearings on proposed changes to custody laws.2

The last decade of the twentieth century saw a flurry of special interest legislation, and the trend has continued unabated into the first and second decades of the twenty-first century.3 Federal and state governments have even gone so far as to pass laws directing courts to issue outcomes favorable to specific women in pending custody proceedings regardless of what the judge assigned to the case has determined the facts to be. The Civil Contempt Imprisonment Limitation Act4 and the Elizabeth Morgan Act,5 for example, legislatively freed a mother who was illegally concealing a child in violation of the father’s court-ordered visitation rights. The legislation directed the court not to enforce its own order.

Men, for their part, got “responsible fatherhood” programs. The objective was said to be to help men to be better fathers. The focus, however, was not on educating men about child development, or teaching them how to raise children. Rather, the stated objective was to enhance the flow of money from male parents to female parents. Responsible Fatherhood grants have been used to fund workshops for unemployed and underemployed fathers, the goal being to increase male compliance with family support orders; to train child support enforcement personnel; and to provide direct grants of millions of dollars to state child support enforcement agencies.6

Feminist legislative enactments at the end of the twentieth century and the beginning of the twenty-first century have tended to be premised on stereotypes of men as violent, oppressive, privileged, and irresponsible; and stereotypes of women as passive, nonviolent, instinctively protective of children, dependent, and victimized. It is not surprising, therefore, that arguments for the resurrection of the maternal preference are being advanced.7

Meanwhile, Professor Daniel Amneus, reacting to the historical preference for mothers in custody cases, and to increased marginalization of males in general, published a book in 2000 making the case for the establishment of a preference for fathers in custody cases.8

Notwithstanding the trend toward greater polarization of the sexes in the twenty-first century, it does not seem likely that an explicit maternal preference will be fully restored to American custody jurisprudence at any time in the near future. It seems even less likely that a paternal preference as propounded by Professor Amneus will be established. Significantly more women than ever before have chosen to pursue careers outside the home than to devote themselves full-time to nurturing children. In fact, women now outnumber men in managerial and professional occupations, and there are roughly an equal number of women and men in the workforce in general. In 2010, for example, 57.4% of professional positions, 68.9% of sale and office positions, and 56.8% of service jobs were held by women. The unemployment rate is higher now for men than for women. In 2010, the unemployment rate for men was 10.5%; for women, it was 8.6%. In that year, 71.3% of mothers with minor children worked outside the home; and this rate has held steady for several years.9 Meanwhile, social acceptance of the performance of child-nurturing functions by fathers seems to be increasing, albeit at a somewhat slower rate than the social acceptance of women’s performance of traditionally male functions has progressed. These forces, together with the obliteration of any meaningful qualitative difference between parental visitation and joint physical custody rights, have contributed to a general movement toward shared parenting and equality as the paradigms for child custody outcomes.

Of course, it is never possible to predict the future with absolute certainty. It seems likely, though, that the momentum for shared parenting will operate, at least for the time being, as a counterbalance to any movement for the resurrection of sex-based preferences in custody law.

As the battles for sole ownership of children rage on, it may be hoped that some day, when the dust has cleared, somebody will notice that the children have been there all along, watching. They are waiting for adults to think about – to really think about – what is in their best interest.


The History of Custody Law is available in paperback and as a Kindle e-book:

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  1. Cathy Young, The Sexist Violence Against Women Act, WALL ST. J. A15, March 23, 1994.
  2. Chris Cobb, Feminists Might Be Granted Own Hearing on Divorce Law, NATIONAL POST, July 5, 2001; Donna LaFramboise, When Dad Becomes a Dirty Word, NATIONAL POST, June 14, 2001; Ontario Women’s Network on Custody and Access press release , June 19, 2001.
  3. In addition to the federal Violence Against Women Act (Title IV, §§ 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, codified as amended in scattered sections of U.S.C.), other examples of special interest legislation for women include, inter alia: programs to educate men and boys not to be violent toward women and girls; programs to address the “heightened vulnerabilities of women and girls to HIV that are targeted specifically at reducing HIV infection rates among women and girls;” mandated use of “gender-specific indicators to monitor progress on outcomes and impacts of” programs designed to reduce women’s HIV infection rates; mandates for executive branch participation in “activities to enhance educational, microfinance, and livelihood opportunities for women and girls.” 22 U.S.C. § 7611 (2012). Further examples include: laws prohibiting female genital mutilation while encouraging male genital mutilation, compare 18 U.S.C. § 116 and 22 U.S.C. § 7611 (2011); establishment of an Office of Women’s Health within the Centers for Disease Control, 42 U.S.C. § 242S (2011); establishment of an Office of Women’s Health within the Health and Human Services Department, 42 U.S.C. § 237a (2011); establishment of an Office of Women’s Health and Gender-Based Research, 42 U.S.C. § 299b-24a (2011); establishment of a national data system and clearinghouse on research on women’s health, 42 U.S.C. § 287d-1 (2011); establishment of Women’s Business Center programs, 15 U.S.C. § 656 (2011); establishment of an Office of Research on Women’s Health, 42 U.S.C. § 287d (2011); establishment of an Interagency Committee on Women’s Business Enterprise and Women’s Business Enterprise Development Council programs, 15 U.S.C. §§ 7101, 7107 (2011); grants to programs and to individual women to further women’s educations and advance their careers in science and engineering, 42 U.S.C. § 1885a (2011); state battered women’s protection acts; programs for female offenders with children but not for male offenders with children, see, e.g., MINN. STAT. § 241.70 (2012). The Patient Protection and Affordable Care Act of 2010, Public L. 111-148 (codified as amended in scattered sections of U.S.C.) contains a host of special protections exclusively for women. In addition to authorizing grants to private organizations exclusively for the purpose of improving women’s health, the Act (as codified at 42 U.S.C. §§ 300gg-13 and 18022 (2012)) requires private health insurance plans to cover “women’s health care needs” and to provide no-cost coverage of any preventive care and screenings recommended by the Health Resources and Services Administration (“HRSA.”) The HRSA’s Required Health Plan Coverage Guidelines require insurers to provide no-cost coverage of “comprehensive preventive services for women,” including the following preventive services for which men may be required to continue to pay: HIV screening and counseling; sexually-transmitted infections counseling; contraception (including birth control and sterilization for women; insurers may require men to pay for condoms and vasectomies); domestic violence screening and counseling; and health checkups annually or more frequently as recommended by a doctor. Men may still be required to pay for this coverage out of their own pockets. The cited statutes represent only a tiny fragment of the special interest legislation for the exclusive benefit and protection of women that has been enacted since the end of the era of equality-feminism. It is not an exhaustive list. See generally Nancy Levit, Feminism for Men: Legal Ideology and the Construction of Maleness, 43 UCLA L. REV. 1037, 1114 (1996) (“In many ways, current legal doctrines foster a separatist ideology. They reflect and reinforce the sharp separation of the genders.”)
  4. Pub. L. 101-97, 103 Stat. 633 (1989)
  5. D.C. CODE § 11-925 (2001). Ultimately, a federal court of appeals struck down the Elizabeth Morgan Act as an unconstitutional bill of attainder. Foretich v. U.S., 351 F.3d 1198 (D.C. Cir. 2003)
  6. See 42 U.S.C. § 603 (2011); see also U.S. Dep’t of Health & Human Services press releases, June 18, 1999; January 2, 2003; May 9, 2003.
  7. See, e.g., MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 12–28, 176–93 (2002); BARBARA K. ROTHMAN, RECREATING MOTHERHOOD: IDEOLOGY AND TECHNOLOGY IN A PATRIARCHAL SOCIETY (1989); Mary E. Becker, Double Binds Facing Mothers in Abusive Families: Social Support Systems, Custody Outcomes, and Liability for Acts of Others, 2 U. CHI. L. SCH. ROUNDTABLE 13 (1995); Mary Becker, Maternal Feelings: Myth, Taboo, and Child Custody, 1 REV. L. &WOMEN’S STUD. 133, 139 (1992) (asserting that “judges should defer to the fit mother’s judgment of the custodial arrangement that would be best”); Mary Becker, Strength in Diversity: Feminist Theoretical Approaches to Child Custody and Same-Sex Relationships, 23 STETSON L. REV. 701 (1994); Nancy S. Erickson, The Feminist Dilemma Over Unwed Parents’ Custody Rights: The Mother’s Rights Must Take Priority, 2 LAW & INEQ. J. 447 (1984); Martha Fineman, Dominant Discourse, Professional Language, and Legal Change in Child Custody Decisionmaking, 101 HARV. L. REV. 727 (1988); Mary Ann Mason, Motherhood v. Equal Treatment, 29 J. FAM. L. 1 (1990).
  9. BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, REP. 1034, WOMEN IN THE LABOR FORCE: A DATABOOK 1, 8-9 Table 2, 18. Table 7, 28-38 Table 11 (2011). Id. at 1, 18 Table 7 (2011)

Rules without reason: visitation, good; joint physical custody, bad


Definitional challenges

The early twentieth century expansion of the term visitation to include intermittent periods of physical possession of the child (as distinguished from merely visiting with the child while the child was in another person’s physical possession) had the effect of obscuring the distinction between visitation and joint physical custody. In Taylor v. Taylor1 the court found no practical difference between the rights and obligations of a parent with temporary physical custody and those of a parent with possession of a child as an exercise of visitation rights. As a result, some courts in the early- and mid-twentieth century started using the terms interchangeably. Thus, in an arrangement calling for one parent to have the children during the school months and the other parent to have the children during the summer months, a court could elect to call the summer months either “custody” or “visitation.”2 A court might say that one parent will have visitation two weekends per month, while the other will have custody the rest of the time; or it might, to the same effect, say that one parent will have custody two weekends per month, while the other will have custody the rest of the time.

Of course, judicial hostility toward joint physical custody conflicted with the principle that visitation normally is in a child’s best interests. Consequently, courts sometimes found themselves struggling to explain the difference between the two concepts.

In some cases, reviewing courts did not even try to explain the difference, conceding that it really was not possible to do that.3 Rather than admit that there was no real doctrinal basis for asserting that frequent stays in a parent’s home is in a child’s best interest when it is denominated “visitation” but is detrimental to a child’s interests when it is denominated “alternating custody” or “joint custody,” these courts adopted an approach similar to that of Justice Potter Stewart in Jacobellis v. Ohio.4 While admitting he could not articulate a definition of obscenity, Justice Stewart nevertheless insisted, “I know it when I see it.”5 Courts could not define the difference between visitation and joint physical custody, either, but they were certain there had to be one, and they were certain that a person could instinctively know the difference simply by looking at an order. Of course, that was not true. What looked like a joint physical custody arrangement to one judge could very easily look like a liberal visitation arrangement to another.6

In Pierce v. Pierce7 the Louisiana Supreme Court struck down the portion of an order purporting to grant “visitation” to a parent on weekends, on the grounds that such frequent periods of parenting time amounted to divided (joint physical) custody, not visitation. At the same time, the court left undisturbed a portion of the order describing a two-month period in the summer as “visitation.” Another court might be more inclined to describe weekend periods as visitation, and months-long periods in the summer as joint physical custody.

The only thing that was known for certain was that the difference between visitation and joint physical custody was not quantitative. In Doty v. Morrison,8 for example, the Arkansas Supreme Court held that an arrangement under which a parent would take the child to his home on weekends would be in a child’s best interests, and therefore acceptable, if it was called visitation, but that the same arrangement would be considered detrimental to the child’s best interests if it was called joint physical custody. Similarly, in Bush v. Bush,9 it was held that a school/summer division of time between the parents would be acceptable if it was called visitation, but it would not be acceptable to the court if it was called joint physical custody.

Sometimes courts attempted to explain the distinction in terms of the reasons for the judicial hostility toward joint physical custody. That hostility originally was an outgrowth of the maternal preference doctrine, i.e., the notion that children need to be raised by their mothers, not by their fathers. The demise of the maternal preference doctrine in the latter half of the century, however, eliminated the possibility of using the judicial reverence for motherhood, or the presumed inferiority of male parenting, as the explicit rationale for distinguishing between visitation and joint physical custody. New justifications for judicial hostility toward joint custody were needed.

The first attempt to articulate a gender-neutral rationale for the judicial aversion to joint physical custody was the argument that frequent shuttling of children between homes exposes children to parental conflict, undercuts a child’s need for a single home, and undermines a child’s attachment to a single authority figure. None of these arguments is sound.

First, since most courts recognize a distinction between legal and physical custody, the qualitative difference between joint physical custody and visitation cannot have anything to do with the level of authority or control over a child that a parent has a right to exercise. Decision-making authority is an attribute of legal custody, not physical custody.

Next, it is not the case that joint physical custody necessarily entails more “shuttling” between residences than visitation does. In fact, an alternating weekend visitation schedule requires more exchanges between homes than does a joint physical custody arrangement under which a child spends summers with one parent and the school year with the other parent.

The argument about the desirability of a single home is also unavailing. The noncustodial parent’s residence is the home for the child when he is there, even if it is only a temporary home, irrespective of whether a court order labels it the home of a joint custodian or the home of a noncustodial parent.

One of the few cases in which a court attempted to provide a reasoned basis for distinguishing visitation from joint physical custody was Holley v. Holley.10 There, the court was called upon to decide whether the division of time between the parents the lower court had ordered amounted to a divided custody arrangement, and therefore was presumptively detrimental to the children, or whether it was visitation, and therefore in their best interests. Acknowledging there could be no quantitative “bright line” between the two concepts, the court instead analyzed the propriety of the award in terms of whether it was likely to cause the children to “become so confused as to divided authority, or differences in views on the proper way to rear a child, that it would affect their welfare.”11

The difference between joint physical custody and visitation, then, was an outcome-based one; it was a qualitative rather than a quantitative difference. If a particular allocation of time operated in such a way as to have the effect of confusing a child about parental authority to such an extent as to be detrimental to the child’s welfare, then it was a joint custody arrangement. If it did not have that effect, then it was visitation. (The notion that a period of time must be of a particular (albeit arbitrarily-defined) duration in order to qualify as “custodial” rather than “visitorial” is of only very recent origin.)12

Of course, defining the terms in this way makes any argument that joint physical custody is detrimental to children a circular one:

Joint physical custody is any visitation that has bad outcomes.
Therefore, joint physical custody has bad outcomes.

In any case, no state has adopted an outcome-based definition of joint physical custody. A few states have attempted to define it in quantitative terms, but most simply say that it means that each parent has a right to spend time with the child.

A more adequate explanation for the judicial preference for labeling the time a child spends with his mother “custody,” and the time the child spends with his father “visitation,” is that judges know the amount of child support will not be as high if the arrangement is called joint physical custody as it will be if it is called sole physical custody with visitation rights. Judges generally tend to believe higher child support awards are in children’s best interests, the assumption being that the custodial parent will use the money for the benefit of the child. Of course, an award of child support that is set so high that the noncustodial parent cannot afford to maintain a home, furnishings and food for his children when they come to visit him obviously is not in children’s best interests, either. Historically, though, judges only concerned themselves with ensuring that mothers had adequate homes and financial resources with which to provide for children while they were in their care. They did not concern themselves with ensuring that noncustodial fathers had adequate resources to maintain homes and care for children during the times they were with them for visitation. The self-support reserve that states have begun building into their child support guidelines did not exist in the twentieth century.

To the extent a particular judge is less averse to using the “joint physical custody” label when the “best interests” factors line up more on a father’s side than when they are favorable to a mother, the resulting decision may be seen as a modern application of the maternal preference. On the other hand, if a judge is always averse to joint physical custody, even when the alternative is to award sole physical custody to a father, then the aversion to the “joint physical custody” label has to be attributable to something else. It could be a general desire to maximize the flow of federal money into the state. Or it could be an unreflective, erroneous belief that the time a parent spends with a child pursuant to a court order that calls it “visitation” time is somehow qualitatively different from the same period of time a parent spends with a child pursuant to a court order that calls it “custodial” time.

Shared parenting

The concept of visitation underwent a transformation in the twentieth century. It began as a judicially granted privilege of access to one’s child that was subject to considerable control by the custodial parent. While state laws imposed severe criminal penalties on those who interfered with a custodial parent’s rights, there were no criminal penalties for interference with visitation. Numerous laws to help custodial parents protect and enforce their rights were enacted, but it was not until near the end of the century that similar kinds of remedies were made available to noncustodial parents for the protection and enforcement of their visitation rights. Much of the impetus for this change was the U.S. Supreme Court’s declaration in Stanley v. Illinois in 1972 that parental rights are constitutionally protected fundamental rights even when the parent in question is a father – and a putative one, at that.

Now that visitation has come to be thought of as a parental right rather than a privilege, a judge may – and arguably is constitutionally required to – order it even over the custodial parent’s objection, unless some compelling reason is shown for denying it. And a judge may order it to occur at such times and places, and under such conditions, as he decides is best for the child, even if the custodial parent does not agree. Moreover, now that most states prohibit judges from making sex-based decisions, they may no longer simply assume that fatherly care is detrimental to children. Except in those individual cases where a compelling need to protect a child from abuse, neglect or endangerment has been demonstrated, there is no longer any justification for automatically subjecting one parent’s time with his child to the other parent’s supervision and control. As a result, there is no longer any supportable qualitative difference between periods of parental joint physical custody and periods of parental visitation anymore.

That being the case, a growing number of policy-makers are reconsidering the entire project of trying to classify some parents as “physical custodians” while relegating others to the status of “visitor.” Consequently, there has been a general movement away from the concept of children as property, or as a prize to be won by one, and only one, parent, to a model that views them as people, and treats parenting as a shared responsibility: “shared parenting.”




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  1. 306 Md. 290, 297 (1986)
  2. McDonald v. McDonald, 253 P.2d 249 (Or. 1953); Patrick v. Patrick, 117 N.W. 2d 256 (Wis. 1962)
  3. See, e.g., Doty v. Morrison, 476 S.W.2d 241, 251 (Ark, 1972)
  4. 378 U.S. 184 (1964) (Stewart, J., concurring.)
  5. Id. at 197.
  6. Cf. McDonald v. McDonald, 253 P.2d 249 (Or. 1953); Patrick v. Patrick, 117 N.W.2d 256 (Wis. 1962)
  7. 35 So. 2d 22 (La. 1948)
  8. 476 S.W.2d 241 (Ark. 1972)
  9. 163 So. 2d 858 (La. Ct. App. 1964)
  10. 58 So. 2d 620 (La. 1963)
  11. Id. at 622.
  12. See, e.g., LaRocca v. LaRocca, 135 S.W.3d 522 (Mo. Ct. App. 2004.)

Author’s Guild v. HathiTrust

Author’s Guild, et al. v. HathiTrust, et al., no. 12-4547-cv, (2d Circ., June 10, 2014)

The second in a set of lawsuits commenced by the Author’s Guild in an attempt to stem the tide of mass violations of the copyrights of book authors, this one seems to be a much more reasonable application of the “fair use” doctrine than the Second Circuit’s decision in Author’s Guild v. Google last year was.

In 2004, the University of California at Berkeley and a few other universities embarked upon a program to create scanned digital copies of the books in their collections. Four years later, the HathiTrust was set up to manage this digital library. By 2013, more than 80 institutions were participating in the program, and over 10 million works had been added to the collection. Since permission to reproduce these books had not been obtained, the program appeared to involve as many as 10 million copyright violations. The Court held, however, that the copying fell within the “fair use” exception to copyright protection.

HathiTrust makes its digital collection available free of charge to readers with “print disabilities,” i.e., people whose physical condition (such as blindness or inability to hold a book) makes them unable to read printed books. The Court reviewed the legislative history demonstrating Congress’s intention to allow, as “fair use,” free copies of copyrighted works to be made available to blind individuals. The Court extended the rationale for this rule to bring individuals with any kind of “print-disability” within the “fair use” doctrine.

The Author’s Guild also complained that HathiTrust furnishes digital copies to libraries to replace lost, stolen or destroyed physical copies. The Court dismissed this latter set of claims for lack of standing and ripeness.

Next, the Author’s Guild made the same kind of claim as it did in the Google case, that copying for the purpose of creating a searchable database of books infringes on the rights of individual copyright owners. Unlike Google Books, though, HathiTrust search results do not display pages-long “snippets” of text. In fact, no text at all is displayed. Instead, the user is only told if and how often the term appears. The Second Circuit Court of Appeals appropriately ruled this to be a transformative use that is permitted as “fair use” of copyrighted material. This limited kind of use does not involve unnecessarily excessive copying , and does not dilute the market for the works.

It is difficult to argue with the Court’s decision in this case. Accordingly, the Second Circuit is now one-for-one on its decisions relating to the permissibility of engaging in mass copyright violations for the purpose of creating searchable databases of copyrighted works.



In re Sanders: A victory for parents, children, and the constitution

After the South Carolina and U.S. Supreme Court rulings in the Baby Veronica case last year, and the 40-year line of cases whittling away the rights of unwed male parents that were established in Stanley v. Illinois, I tend to get a bit nervous whenever an appellate court accepts for review a case asserting the constitutional rights of a parent who is male. Like a Skinnerian rodent, I’ve come to expect an electric shock rather than a food pellet whenever that lever is pushed. On June 2, 2014, however, the Michigan Supreme Court delivered a very large metaphorical food pellet instead of an electric shock — and not just for male parents, but for mothers and children, too.

The facts

The case, In re Sanders (Mich. Supreme Court docket No. 146680) involved an unwed mother who gave birth to a baby that was found to have drugs in his system. The department of human services promptly petitioned the court to remove the child from her custody. The court did so, and placed the baby with the father, who already had custody of the couple’s older child. The department then moved the court to remove the child from the father’s custody. The father contested the removal, on the basis that only the mother had been adjudicated unfit to parent. There had been no determination that he was unfit. The department initially tried to assert that he, too, was unfit to parent, but then withdrew those allegations. Despite the absence of any adjudication, or a petition for an adjudication of the father’s unfitness to parent, the court nevertheless proceeded to impose a variety of conditions on the father’s contact with his child anyway. Among other things, he was ordered to complete a substance-abuse evaluation, a psychological evaluation, and parenting classes. In the meantime, the court placed the child in the care of a third party, and prohibited the father from having any unsupervised contact with his child. The father filed a motion to remove these conditions, on the basis that he had not been adjudicated an unfit parent and therefore the court had no authority to restrict his parental rights. The court denied his motion, so he petitioned the court of appeals for review. The court of appeals, in an unpublished decision, denied his petition. He therefore took his case to the Michigan Supreme Court, which granted review.

The holding

The Michigan Supreme Court reversed both the trial court and the court of appeals, and ruled that courts do not have authority to restrict the rights of a parent who has not been found to be a danger to his child or an unfit parent. In so holding, the Court overruled a prior appellate court decision, In re C.R., 250 Mich. Ct. App. 185 (2002), which had held that if either parent is charged with abuse, neglect or endangerment, then the court has jurisdiction to make dispositional orders affecting both parents.

The rationale

The rationale for the Michigan Supreme Court’s decision was really quite simple: Parental rights are part of the “liberty” that the Fourteenth Amendment guarantees to every citizen. A state is not permitted to deprive a person of parental rights without due process of law. Of course, a state has a legitimate interest in protecting children from harm. Parental rights are not absolute. But the U.S. Supreme Court has ruled that the Due Process clause mandates a presumption that parents act in their children’s best interests. It also mandates procedural protections, such as a right to a hearing on a parent’s fitness, before the state may burden an individual’s fundamental rights. The one-parent doctrine essentially embraces a guilt-by-association rule. Guilt by association is the antithesis of due process.

What the heck has been going on?

On its face, the decision seems like it should have been a no-brainer. Of course a state shouldn’t have the power to take a person’s children away and require him to jump through a whole bunch of hoops to get them back, unless she or he has done something wrong. Of course the state shouldn’t have authority to come between a parent and a child unless it has reason to. America is supposed to be “the land of the free,” not “the land of arbitrary totalitarianism.” So how is it that so many learned judges, not just in Michigan but all across the country, could have failed to see this for so long? To give a complete answer to that would require a lengthy dissertation on sex role conditioning and the socio-psychological dynamics of jurisprudence. From a legal standpoint, however, I believe it can be traced back to Quilloin v. Walcott, 434 U.S. 246 (1978), the first significant parental rights decision the U.S. Supreme Court issued after Stanley v. Illinois.

In Stanley v. Illinois, 405 U.S. 645 (1972), the U.S. Supreme Court declared, for the first time, that mothers are not the only individuals whose parental rights are constitutionally protected fundamental rights. Instead, the Court announced, unmarried fathers’ rights are also constitutionally protected.

It seemed as though the Court was saying that because of the Equal Protection clause, the parental rights of unwed fathers are entitled to same level of constitutional protection as the parental rights of unwed mothers are. Six years later, though, in Quilloin v. Walcott, the Court declared that it had no problem with state laws making men’s parental rights conditional on conduct (and a “best interests” analysis) even though the state, at the same time, does not impose the same kinds of conditions on mothers’ parental rights. The Court ruled that unlike mothers, whose rights arise naturally upon the birth of a child, the father must earn his constitutional rights through good conduct. Specifically, even though a mother need do nothing to demonstrate her commitment to parenting before her parental rights will acquire the status of constitutionally protected fundamental rights, a father does. He has to either marry the mother; adopt the child; or demonstrate his parenting ability and responsibility in some other way. In other words, the Court constitutionalized the early English common law principle that only mothers have natural rights that arise simply by virtue of a biological relationship to the child. A biological father’s rights, by contrast, do not arise automatically. Rather, they must be earned through conduct of some kind.

Put another way, upon the birth of a child, the biological mother has rights of custody and contact that are automatically entitled to constitutional protection. The biological father, by contrast, has only an inchoate interest. His interest does not receive constitutional protection unless and until he takes some action to prove his parental worthiness to the satisfaction of a state legislature and/or judge.

Apparently the U.S. Supreme Court did not find anything ironic about applying a double standard to determine whether a person is entitled to protection against double standards.

I believe it is this two-tiered “more equal than others” approach the U.S. Supreme Court has articulated for the analysis of parental rights issues under the Equal Protection clause that accounts for the widespread belief among lower court judges that their power over the parental rights of unwed fathers is virtually limitless. It would certainly help explain why state legislatures and courts almost universally seem to believe that it is perfectly acceptable to place the burden of proof on a father to prove himself worthy of parental rights, rather than placing the burden of proof on the state to prove that he is not.

A victory for all parents, children, and the constitution

The Michigan Supreme Court’s decision is a victory not just for fathers, but for mothers and children, too. The one-parent doctrine isn’t limited in application to fathers. It can be applied to innocent mothers, too. Although fathers do not have sole custody of their children as often as mothers do, it is coming to be more common now than it has been in the past. Under the one-parent doctrine, a custodial father’s abuse or neglect of a child would provide a state grounds for preventing the mother from seeing her children even though she has done nothing wrong.

It is a victory for children because unnecessary disruptions of a parent-child relationship are not in a child’s best interests.

It is a victory for the constitution because arbitrary state intrusions on individual liberty are precisely what the Due Process clause of the Fourteenth Amendment is supposed to have been preventing all along.