CHILDREN’S RIGHTS
The opportunity for children to participate in
political and legal decisions that affect them; in a
broad sense, the rights of children to live free from
hunger, abuse, neglect, and other inhumane conditions.
The issue of children’s rights is poorly
defined in legislation and by the courts, partly
because U.S. society as a whole has not decided
how much autonomy to grant children.
Although the United States is built on protecting the interests of individuals and the twentieth
century saw the rights of people with special
needs recognized, the nation has yet to extend to
children legal standing (the right to bring a
court case) and legal protection similar to that
of adults.
When most children’s advocates talk about
children’s rights, they are not referring to the
same rights held by adults, such as the rights to
vote, drink, smoke, and run for office. Instead,
they mean that more emphasis should be placed
on children’s status as “natural persons” deserving
of benefits under the law as provided in the
U.S. Constitution and its BILL OF RIGHTS.
The U.S. legal system grants rights to people
who are deemed competent to exercise those
rights. This qualification poses a dilemma for
advocates of children’s rights because most children
lack the skills to advocate for themselves in
the political, judicial, or economic arena. Yet,
children’s rights supporters believe that because
of this powerlessness, children must be granted
more protections and power than has been provided
in their legal status.
PARENS PATRIAE (“the state as parent”) is the
philosophy that guided many court decisions in
the 1990s. This approach basically assumes that
the government has a duty to make decisions on
behalf of children to ensure that their best interests
are met. But the doctrine can be interpreted
as allowing government interests to replace
interests children may wish to express on their
own behalf. It also assumes that what the government
wants matches what the child needs,
which may or may not be true.
How U.S. society defines and provides children’s
rights has implications for many areas:
how children are represented by attorneys; how
resources are distributed, for example, in a family
experiencing DIVORCE; how long some children
will live in abusive situations or foster care;
how the role of families is viewed; and more.
Court Standing
Twelve-year-old Gregory Kingsley made the
news headlines in 1992 when he went to court to
sever his legal ties to his parents—and won (In re
Kingsley, No. JU90-5245, 1992 WL 551484 [Fla.
Cir. Ct. Oct. 21, 1992; Kingsley v. Kingsley, 623
So. 2d 780 (Fla. Ct. App. 1993)]). A year later,
Kimberly Mays, age 17, won her legal battle to
end any parental rights her biological parents
might attempt to exercise (Twigg v. Mays, No.
88-4489-CA-01, 1993 WL 330624 [Fla. Cir. Ct.
Aug. 18, 1993]).What was unusual in both cases
was that children were allowed to advocate for
their interests on their own behalf. Some children’s
rights advocates believe that competent
children like Mays and Kingsley must be allowed
to use the courts to pursue their interests. But
these particular cases may have done more to
promote the discussion of children’s rights than
to promote actual rights.
For example, when Kingsley’s mother subsequently
appealed the termination of her rights,
the appellate court ruled that as a minor, Kingsley
alone did not have standing (Kingsley v.
Kingsley). It was ultimately the support of adults
who later joined Kingsley in bringing the case
(including his adoptive parents), along with his
parents’ inability to care for him, that influenced
the appeals court to affirm the lower court’s
decision.
The situation surrounding Mays’s parentage
is so unusual that few similar cases are anticipated
to arise. Mays was raised by Robert Mays
and Barbara Mays after being mistakenly identified
as their daughter in the hospital where she
was born. When Mays’s biological parents discovered
the switch more than a decade later,
they sought visitation with Mays, starting a battle
between them and the man who had believed
that Mays was his daughter and had raised her
alone after his wife’s death.
Except when there is evidence of neglect or
abuse, parents usually retain their status as preferred
caretakers of their children. The case of
Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67
L. Ed. 1042 (1923) established that the Liberty
Clause of the FOURTEENTH AMENDMENT gives
parents the right to raise their children. The government’s
assumption is that parents’ priorities
match their children’s.
The situation is less clear when the conflict is
between children and their parents, as in the
cases of Mays and Kingsley.When a family court
is considering a CHILD CUSTODY or support
petition, it may become aware that the parents
are not acting in their children’s best interests. In
these cases, the court may appoint a GUARDIAN
AD LITEM to identify the children’s needs and to
advocate that those needs be met. This caretaker
“for the lawsuit” may be an attorney chosen to
act on behalf of the child in court. But heavy
increases in child protection and family court
caseloads nationwide have led to long delays in
making determinations on behalf of children—
and have led many advocates to suggest that a solution may lie in allowing children to initiate
actions for themselves.
Many situations in which children and parents
do not share common interests have not
been resolved in favor of the minors. These
include cases that challenge laws requiring
minors to get their parents’ consent before an
ABORTION or that challenge parents’ efforts to
commit their children to psychiatric institutions.
For example, in Parham v. J. R., 442 U.S.
584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979), the
Supreme Court decided that when parents seek
to institutionalize their children in mental hospitals,
the DUE PROCESS provided to the children
need be no more than an evaluation by an independent
medical decision maker. Again, the
Court upheld the government’s assumption that
what is best for the children is what the parents
and the state decide, despite criticisms that this
is not always true.
Juvenile Justice
Some advocates of children’s rights believe
that children should be afforded the same constitutional
and procedural safeguards that adults
are given in court. The juvenile justice system is
cited by some experts as an area in which the
protections granted to children lag behind those
provided to adults. For example, children may
be detained in situations where adults would not
be. Bail is not set for children, and children do
not receive the benefit of a jury of their peers. In
some states, as recently as the late 1980s, minors
could receive longer incarceration sentences
than could adults.
Some constitutional protections were won
in the late 1960s on behalf of juveniles who
could be tried as adults. These protections
included the right to an attorney’s advice at the
time when the court was deciding whether to try
the juvenile as an adult, the right to a hearing on
that issue, and the right to the same information
the court would use in making a decision (IN RE
GAULT, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d
527 [1967]; Kent v. United States, 383 U.S. 541,
86 S. Ct. 1045, 16 L. Ed. 2d [1966]). However,
advances in this area have not kept pace with
federal and state legislation expanding the punishment
of juveniles as adults.
Constitutional Issues
Legal commentators have noted that the
courts were seemingly willing to recognize the
constitutional rights of children during the 1960s
and 1970s. A series of U.S. Supreme Court decisions
recognized minors’ RIGHTS TO COUNSEL in
criminal proceedings, to protection from SELFINCRIMINATION,
as well as other procedural
rights and general privacy rights. However,
according to some commentators, the 1988 case
of Hazelwood School District v. Kuhlmeier, 484
U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988)
marked a turning point in the Court’s recognition
of children’s constitutional rights. In that
case, the Court limited the right of children to
exercise free speech and free expression. According
to the decision, children’s rights “are not coextensive
with the rights of adults in other settings.”
One 1993 study of constitutional decisions
concluded that from the 1960s to the early
1990s, the U.S. Supreme Court was increasingly
less supportive of expanding children’s claims to
constitutional rights. The study showed that
under the liberal WARREN COURT, 100 percent of
decisions about constitutional cases upheld children’s
claims. The Burger Court, which followed,
upheld children’s claims in 59 percent of
such decisions, and the Rehnquist Court in 22
percent of such cases to 1993. The cases in the
survey concerned issues of EQUAL PROTECTION,
due process, privacy, free expression, and free
exercise of religion.
Statistics such as these prompted concern
among experts as to the denial of basic legal
rights given to children.During the mid- to late-
1990s, a number of scholarly article were published
advocating expanded rights for children.
However, the trend toward restricting children’s
rights continued into the early 2000s. Courts,
with some frequency, find that children are not
capable of managing full legal rights and of
making decisions on their own behalf. The question
of how far society should go in allowing
children to participate in determining their destiny
remains a difficult challenge.
FURTHER READINGS
Archard, David William. 2003. Children, Family, and the
State. Aldershot, Hants, England, Burlington, Vt.: Ashgate.
Cannon, Scott A. 1994. “Finding Their Own ‘Place to Be’:
What Gregory Kingsley’s and Kimberly Mays’ ‘Divorces’
from Their Parents Have Done for Children’s Rights.”
Loyola Law Review (winter).
Coons, John E., Robert H. Mnookin, and Stephen D. Sugarman.
1991. “Puzzling over Children’s Rights.” Brigham
Young University Law Review.
Dale, Michael J. 1992. “The Supreme Court and the Minimization
of Children’s Constitutional Rights: Implications
for the Juvenile Justice System.”Hamline Journal of
Public Law and Policy (summer).
Federle, Katherine Hunt. 1993. “Constructing Rights for
Children.” Family Law Quarterly (fall).
Jackson, Rochelle D. 1999. “The War Over Children’s Rights:
And Justice for All? Equalizing the Rights of Children.”
Buffalo Human Rights Law Review. 223.
John, Mary. 2003. Children’s Rights and Power: Charging Up
for a New Century. London, New York: Jessica Kingsley.
Mezey, Susan Gluck. 1993. “Constitutional Adjudication of
Children’s Rights Claims in the United States Supreme
Court, 1953–92.” Family Law Quarterly (fall).
Ramsey, Sarah H., and Douglas E. Abrams. 2003. Children
and the Law in a Nutshell. 2d ed. St. Paul, Minn.: West
Group.
Sommer, Cristina Dugger. 1994. “Empowering Children:
Granting Foster Children the Right to Initiate Parental
Rights Termination Proceedings.” Cornell Law Review
(July).
CROSS-REFERENCES
Child Abuse; Child Custody; Child Support; Divorce; Family
Law; Guardian ad Litem; Parent and Child.
