Abstract

http://ssrn.com/abstract=2168805
 
 

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Parents' Self-Determination and Children's Custody: A New Analytical Framework for State Structuring of Children's Family Life


James G. Dwyer


William & Mary Law School

January 1, 2012

Arizona Law Review, Vol. 54, No. 1, 2012
William & Mary Law School Research Paper No. 09-227

Abstract:     
When adults exercise basic liberties, such as freedom of speech, association, or travel, their actions can adversely impact any child in their custody. In several topical areas of family and juvenile law, the prevailing view among courts and scholars is that the self-determination rights and interests of adults who happen to be parents trump or, at a minimum, must be balanced against the interests of their children, so that sometimes children’s welfare must be sacrificed for the sake of parents’ self-determination. This Article demonstrates that this view is mistaken, and that any deference to parents’ self-determining interests or supposed rights is inappropriate in resolving custody disputes between parents or between a parent and the state. The constitutional and normative analysis that ordinarily applies when the state constrains individual liberty is inapt in situations where the state acts as a proxy decision-maker for private individuals, and this Article shows that this is how we must view the state’s actions when courts and agencies decide with whom children will live. In such cases, it is inappropriate for state actors directly to consider the interests of anyone other than the children themselves.

Number of Pages in PDF File: 59

Keywords: child custody, First Amendment, parents' rights, religion, free speech, parent relocation, parent alienation, child abuse

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Date posted: October 30, 2012  

Suggested Citation

Dwyer, James G., Parents' Self-Determination and Children's Custody: A New Analytical Framework for State Structuring of Children's Family Life (January 1, 2012). Arizona Law Review, Vol. 54, No. 1, 2012; William & Mary Law School Research Paper No. 09-227. Available at SSRN: http://ssrn.com/abstract=2168805

Contact Information

James Gerard Dwyer (Contact Author)
William & Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
HOME PAGE: http://law2.wm.edu/faculty/bios/fulltime/dwyer-648.php
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