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Abstract:
Virtually everyone familiar with current child welfare practice in the United States agrees that it is in crisis. In particular, most observers of child welfare complain that too many children remain in foster care for too long. Those hoping to reform the system approach this task from many different directions. Some propose vastly increasing the state's role in assisting families. Others recommend sharply limiting the state's role to save scarce resources for those most in need.

In Nobody's Children, Professor Elizabeth Bartholet articulates a different premise from which to examine why the child welfare system is in crisis. She asserts that current practice fails to protect children from parental abuse and neglect. As this Review elaborates, she recommends an aggressive policy of removing children from their biological families and placing them for adoption. The principal question I address is whether Bartholet's definition of the problem and her proposals for change are appropriate for the children whose lives are at stake. Although I agree with Bartholet's contention that aggressive measures are needed to serve children at risk of entering foster care, I believe her proposals would gravely harm these children and their families. We must find ways to reduce reliance on out-of-home care for children so that their own families may successfully raise them.

Part I of this Review sets forth the core proposals in Nobody's Children. Part II examines the underlying premises of Bartholet's proposals: that the goal of family preservation is fundamentally flawed because keeping chil-dren with their families or returning them to their families after they have been in foster care is futile; that society is unwilling to commit sufficient resources to help families of children in foster care; and that families of children in foster care are so inherently inadequate that it is unwise to strive to fix them. Part III examines the validity of Bartholet's assumptions and concludes that although Bartholet is undoubtedly correct in her bleak assessment of our society's unwillingness to invest in families of children in foster care, she is unjustifiably dismissive of the potential for preserving and restoring such families in the event that the appropriate resources were to be made available. This Part also challenges Bartholet's formulation of the problem with child welfare. Part IV sets forth an alternative definition of the problem by arguing that the key issue is not the abuse and neglect of children, but rather the underlying social conditions endemic in these children's lives. In this Part, I also provide some proposals that seek to address the complex needs of the children and families who are the victims of a child welfare policy gone awry.

Abstract:
This article explains why the child welfare process was used in the 2008 San Angelo, Texas raid on the FLDS community which resulted in the removal of more than 400 children from their families. It argues that the criminal justice system, not the child welfare system, should be the preferred means by which state officials attempt to prevent the practice of polygamy. The criminal justice system contains many more time honored protections of civil liberties than the child welfare system. In addition, using the child welfare system contains one additional danger: the contamination and expansion of child welfare law to permit coercive intervention, authorizing state officials to remove children from families based on notions of morality. The article suggests that the ultimate danger of the San Angelo raid is that child welfare interventions will become too much about the (mis)behavior of parents, with a particular emphasis on conduct that is criminal or "immoral," and too little about what should always remain the central inquiry: whether children are in danger.

polygamy, child welfare, children's rights, criminal law

Abstract:
In this article, I critique an important report, the Report of the Matrimonial Commission to the Chief Judge of the State of New York issued in 2006 by a blue-ribbon commission calling for widespread changes in the way matrimonial cases should be handled in new York courts. Among the topics covered by the Report is the call for an increased use of lawyers for children in these proceedings. I take strong issue with this recommendation. One of the principal recommendations in the Report is that children's lawyers should, to an ever greater degree, be called upon to advocate for the outcome desired by their clients. As between assigning children's lawyers who would advocate for what the lawyers perceive to be the client's best interests and who would advocate for what the child wants, I agree that it is far preferable to ask children's lawyers to advocate for what the client wants. But I go further and demonstrate, through a careful analysis of New York caselaw, that judges and courts do not want children's lawyers to advocate for what children want and expect, sometimes even require, that the children's lawyer provide the court with the lawyer's recommendation on how to decide the case. My main thesis in this article is that, although many commentators increasingly want children's lawyers to advocate for what the clients want, that is not what children's lawyers tend to do in large part because courts do not want them to. Thus, there is a sharp disconnect between the literature and theory of what children's lawyers should do and what children's lawyers are expected to do by the judges who appoint them which, in turn, affects what the children's lawyers actually do.

children's lawyers, matrimonial proceedings

Abstract:
In this article, I examine a leading decision of New York's highest court (Matter of Ronald FF v. Cindy GG) which ruled in 1987 that non-legally recognized parents (de facto parents) may not go to court to seek court-ordered visitation over the objection of the legally recognized parent. This decision has meant that same-sex partners (or step-parents) who have helped raise children since their birth are entirely without a legal remedy to try to maintain a relationship with their children after the adult relationship has ended. Many have criticized this result on policy grounds. I do not do so in this article because New York's highest court did not decide the case on policy grounds. Instead, it purported to decide it in accordance with what it claimed are venerable common law principles. I attempt in this article to demonstrate, through a careful analysis of New York's common law, that the case was wrongly decided on its own terms and that New York's common law had longed allowed cases of this sort to be filed. The current understanding of the law is that Matter of Ronald FF refused to change the common law to adapt to changing circumstances of modern family life and, instead, held that any right to seek visitation would have to come from the Legislature. This article seeks to demonstrate that, properly understood, Matter of Ronald FF did the opposite. It actually was the case that changed the common law and, for the first time, denied persons who had a significant relationship with a child to seek court-ordered visitation over parental objection. I believe this article has important implications not only for reform in New York, but in those many other jurisdictions that today prohibit de facto parents from seeking visitation orders.

third-party visitation, de facto parents, custody and visitation

Abstract:
This article describes the Standards for the Representation of Children in Custody and Visitation proceedings recently promulgated by the American Academy of Matrimonial Lawyers. It also seeks to bring to life the remarkable politics of children’s representation, which came to a boil in recent years. In addition to describing the AAML Standards, the article also describes two other recent efforts to define the role of a child's lawyer, one by the Uniform Law Commission and the other by the American Bar Association and then tells the story of why both of those efforts ultimately failed to garner significant support in the field. The article tells the fascinating story of how the Uniform Law Commission came to be defeated by children’s rights advocates and how the ABA effort came to be defeated by very differnt forces. The article concludes by attempting to identify common ground among all three efforts and to reconcile the competing visions of children’s advocacy shared by these three organizations. The article offers a vision of how best to use court-appointed aides to serve children and their families when the parents are enmeshed in contentious disputes over custody and visitation.

children's lawyers, gualrdians ad litem, custody disputes, visitation disputes, role of counsel

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 minors 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.

Abstract:
This article focuses on two Supreme Court decisions (Planned Parenthood v. Danforth and Bellotti v. Baird) in which the Court redefined the entire conception of children's rights. The article suggests that the Supreme Court used a construct of children's constitutional "rights" to restrict the rights of children. By doing so, the Court decisively derailed an incipient children's rights movement that had the potential to liberate children from the dominion of adults. In Danforth, the Court considered for the first time the constitutionality of a state statute that contained a mandatory parental consent provision. The Court struck down that part of the statute that prohibited unmarried minors from procuring abortions during the first trimester of their pregnancies without a parent's consent. Magisterially declaring that "minors as well as adults are protected by the Constitution and possess constitutional rights," five members of the Court concluded that a state could not subject a minor's choice to terminate her pregnancy to a parent's absolute veto "without a sufficient justification for the restriction."

Even though Danforth has never been overruled, this article seeks to demonstrate that current law does not afford minors a constitutional right to terminate a pregnancy. Ever since Danforth, commentators have attempted to develop a coherent theory of the constitutional rights of children by treating the adolescent abortion cases as if they advanced children's constitutional rights. For the most part, these commentators have failed. But the failure did not stem from any deficit in reasoning. Rather, the fault lay with the underlying premise: that those cases do advance children's constitutional rights. The article's principal thesis is that these abortion cases are not really about constitutional rights of children in the first place.

Much flows from this. If correct, this would require a substantial reappraisal of the broader tapestry of constitutional rights of children. The larger network of doctrine and constitutional theory lacks a consistency which in no small part is the consequence of classifying the abortion cases within the subject of constitutional rights. Ultimately, we will be able to identify a more coherent theory of children's rights if we are able to categorize the abortion cases correctly. The article finally seeks to demonstrate that the abortion decisions are best understood as a conservative Court's efforts to create rules that allow pregnant minors to obtain abortions while ensuring that those rules will not be used to advance children's claims for greater constitutional rights in other areas of the law.