WHAT'S WRONG WITH CHILDREN'S RIGHTS
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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
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What's Wrong with Children's Rights?
By Martin Guggenheim
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=197411
New York University School of Law; New York University - School of Law
Abstract:
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.
HOW TO CONTROL ADULTS BY MEANS OF 'CHILDREN'S RIGHTS'
By Lynette Burrows