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Abstract:
Major federal legislation since the mid-90s has embodied a philosophical shift away from trying to salvage grossly unfit parents and toward ensuring children good families before they incur permanently damaging abuse, neglect, or foster care drift. That legislation has created a widespread perception that the state is now more proactive in preventing child maltreatment. This Article explains why that perception is false and what further reforms are needed to give children the protection they deserve from unfit parents, beginning at birth. This Article integrates moral and political theory, extensive social science research, and a canvassing of state and federal child protection law in order to mount a compelling and novel indictment of the current child protection system and to advance bold proposals for making child protection a reality rather than a pretense.

Abstract:
State parentage laws, dictating who a newborn child's first legal parents will be, have been the subject of constitutional challenges in several U.S. Supreme Court and many lower court decisions. All of those decisions, however, have focused on constitutional rights of adults (especially unwed biological fathers) who wish to become, or to avoid becoming, legal parents. Neither courts nor legal scholars have considered whether the children have any constitutional rights that constrain legislatures and courts in deciding which adults will be their legal parents. If a state enacted a parentage law that said, for example, that any child born to a birth mother who already had two children would be placed in a parent-child relationship at birth with applicants for adoption rather than with the birth mother, would that infringe on any constitutional right of the child? Or would the birth mother be the only person with standing to challenge the law? Such a law would be purely hypothetical in the U.S. (though not far from reality in some other parts of the world). But the actual current parentage laws in the United States, which confer legal parent status in almost all instances on biological parents, with no regard for fitness, also have a seriously adverse effect on a subset of children -- specifically, children whose birth parents are manifestly unfit to raise children, as evidenced by serious child maltreatment histories, criminal records, substance abuse, mental illness, and/or imprisonment. This Article is the first to consider whether states violate a constitutional right of some children when their parentage laws consign the children to legal relationships with, and into the custody of, adults whom the state knows to be unfit. It identifies opportunities for children's advocates to advance constitutional challenges to state parentage laws as applied to newborn offspring of adults unfit to parent, and it presents a robust legal theory to underwrite such challenges.

Abstract:
This paper is an attempt to summarize the current state of the law in all areas of family law in which the state makes decisions, directly or indirectly, about what legal relationships children will have or which relationships of children will receive legal protection. It does so from a perspective that aims to discern whether children have any rights in connection with such decisions. The law rarely speaks of children having rights, but I posit and apply a test for determining whether the law effectively accords rights to children even when it does not speak explicitly in those terms. This effort to develop a comprehensive account of children's existing relationship rights is a prelude to a normative analysis of what the rights of children ought to be in connection with their intimate relationships, the topic of a book on which I am working. I would welcome and be very grateful for off-prints of articles on that topic written by others in the field.