What's Wrong with Children's Rights?

By Martin Guggenheim





This book will provoke a welcome storm of debate in family, custody, and child welfare law. Martin Guggenheim makes a powerful case that it is in the most humane American tradition to support parents' rights, not as a denial of children's humanity but an affirmation of their best chance to grow and be supported within a family, with an edifice of significant barriers to state control and intervention. The issues addressed by What's Wrong with Children's Rights? are timely, and will impact millions of children in the U.S. Guggenheim's arguments make us think and rethink the role of lawyers for children, guardians, social workers, and the great battery of professionals who advise judges and administrative decision-makers.
   --Bernardine Dohrn, Northwestern University





What's Wrong with Children's Rights?

By Martin Guggenheim



New York University School of Law; New York University - School of Law


This book explores the subject of "children's rights" as a phenomenon: how the rhetoric of children's rights is used, by whom, and to whose advantage. It describes how the modern Children's Rights Movement began and how an emphasis on "rights" became its fashionable choice of language. An important claim presented is that although adults need to pay greater attention to the way they treat children and how they might change their behavior to serve them better, they should learn to do these things outside of the rubric of "children's rights." For better or worse, the words no longer do very much to advance the conversation (if they ever did). The book suggests that the Movement has not proven to be of much help to children and that we may have reached the point in our history where children would be better served by returning to a time when we treated children like children; when the mistakes they made were understood to be part of the natural process of growing up; and when adults understood their obligations to do right by children.

The book also carefully examines a number of debates across various subject areas. One of the book's principal theses is that the Children's Rights Movement - particularly in the areas carved out for extended discussion - has been advanced by adults because they have something to gain by making claims on behalf of children. Across a wide range of subject matter, including disputes over adoption, third-party visitation (grandparent rights), custody and relocation arising out of divorce, child welfare and foster care, and even adolescents' rights to abortion, the book shows how adults use the rhetoric of children's rights to advance agendas that serve adults' interests. In the process, though children's interests are invoked, they are rarely furthered.

In this sense, to a far greater degree than is commonly appreciated, "children's rights" is really more about adults than it is about children. Because the subject matter is so broad, however, this book does not cover its entirety. Among the prominent children's rights topics not discussed in depth are the rights of children in schools and their rights in the criminal and juvenile justice arenas. Some of the major theses of the book do not apply to these areas or apply in distinctly different ways than suggested here.

Despite "children's rights" having become a familiar and often used phrase over the past generation, it is replete with contradiction and inconsistency. At its worst, it borders on being incoherent. This book fills an important gap in our understanding of the Children's Rights Movement by highlighting many of most contentious topics. Written by an experienced litigator and nationally known expert on children's rights, the book challenges a core claim of "children's rights": that it is possible - let alone desirable - to isolate children from the interests of their parents or society as a whole. The book also shows how courts have come to be the battleground for the Children's Rights Movement and how the Movement is dominated, in an unprecedented way historically, by lawyers.

The book shows how some in the Movement have succeeded in treating children's interests as antagonistic to those of their parents, a trend that has much affected foster-care laws and policy. The book reveals the extent to which the Movement is driven by adults who often have more to gain, and often gain more, than the children in whose name they advance claims. The book also reasons that children's interests are not necessarily the only ones to which adults should attend; that often it is sensible to subordinate children's interests to others in society; and that the child-centered perspective claimed by many advocates ultimately fails as a meaningful test for determining how to best to decide disputes concerning children.

Chapter 1 offers a brief history of the two children's rights movements in the
United States in the 20th century and traces when and how the public rhetoric regarding children shifted from "needs" to "rights." Chapter 2 provides a constitutional analysis of the parental rights doctrine, how that doctrine furthers core values of American constitutional law, and the relationship of the doctrine to children's rights. Chapter 3 describes the Baby Jessica case in detail and explains why the common understanding of why Jessica should have been allowed to remain in the custody of the parents who sought to adopt her is far too simplistic. The chapter also shows how so many children's advocates rallied around the case on the side of Jessica remaining in her pre-adoptive home and the incoherence or inadequacy of their argument that the proper means by which the custody dispute should have been decided was based on a "child-centered" approach.

Chapter 4 discusses the deeply contentious issue of "third-party visitation" (the effort by adults who are not legally recognized as parents to secure the parent-like right to visit with someone else's child. The chapter discusses both the substance of these varied claims (which arise in the context of grandparent lawsuits, but also in same-sex co-parenting or other unmarried partners who raise children together.

Chapter 5 describes the historical and modern changes in American law as it affects divorce, custody, visitation, relocation, and the appointment of lawyers for children. This chapter shows how adults came to agree on the "best interests of the child" as the formal basis upon which their disputes should be resolved. The chapter suggests that the best interests standard serves adults well by making it possible of them to win their case and by masking their guilt over the harm their personal choices may cause their children. Even worse, the chapter suggests, the best interest standard actually harms children because it encourages litigation.

Chapter 6 focuses on child welfare issues involving children in foster care and recent federal efforts to accelerate their adoption. This chapter demonstrates how politicians and the American public benefit by emphasizing the adoption of foster children as a prominent goal of current foster care policy and suggests that the modern child welfare system denies any public obligation to bolster marginal families before the need to place children in foster care even arises.

Chapter 7 describes the law of pregnant minor's who wish to terminate their pregnancy with a larger focus on how the law uses the subject of a child's "right" to secure a result that works well from a public health perspective.

Chapter 8 shows the degree to which the modern children rights movement has contributed to an ever larger number of children ending up in state custody and having their fate determined by state officials. This chapter suggests that there is a relationship between the unprecedented number of children who end up in foster care and who are sentenced to serve adult-like sentences for criminal conduct and that the modern children's rights movement has been singularly unsuccessful in developing strategies to protect children from the harshness of the criminal justice system.



By Lynette Burrows










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