Those Privileges Long Recognized: Termination of Parental Rights Law, the Family Integrity Right and the Private Culture of Family

86 Pages Posted: 16 Jun 2008 Last revised: 5 Apr 2018


The first section of this paper discusses the scope and nature of the familial rights at stake in a termination of parental rights action. This section demonstrates that familial rights are defined as relational rights throughout our Anglo American tradition and constitutional jurisprudence and thus protect the relationship between the parent and child rather than an individual right of either.

The second section of this paper establishes that family life is a "private culture" which, like culture viewed on any scale, shares learned behavior among members and functions as a means of protecting the group and insuring the continuity of its values, beliefs and organization. This section describes United States Supreme Court decisions which expressly protect the familial activities constituting and reflecting the private culture of the family. In view of the United States Supreme Court's recognitions of private family culture, this second section concludes by suggesting that a family's private culture is entitled to the same deference accorded to larger cultural groups in other contexts. Taken together, then, the first and second section stand for the proposition that the proper inquiry is never whether removal from parental custody is in the child's best interest but rather whether a "family" exists, in the constitutional sense. If a family exists, the inquiry must end. There should be no inquiry into whether the child's emotional needs are fully met, whether some future likelihood of harm exists or whether it would be "better" for the child to spend some time with grandmother, or indeed with anyone else. The state is neither permitted to evaluate the "private culture" of a functioning family nor, as an "impersonal political institution" is it qualified to do so.

The third section of this paper provides a selective overview of termination of parental right statutes focusing on recent trends which have increased the incidence of both procedural and substantive due process problems within the statutes. This third section also describes Congress' own, quite different response to some of the criticism of child welfare legislation, a response which is embodied in the Indian Child Welfare Act (hereinafter "ICWA"). The third section concludes by proposing a more constitutionally acceptable approach to child welfare legislation utilizing the general principles embodied in the ICWA.

The fourth and final section of this paper argues that the appropriate burden of proof to place on state actions to remove a child from his or her parents' custody or to terminate parental rights to the child is proof beyond a reasonable doubt. The ICWA requires proof beyond a reasonable doubt in termination of parental rights actions falling within its jurisdiction; the principles Congress endorsed in enacting the ICWA should be applied to all families. This paper reaches this conclusion despite Santosky v. Kramer's apparently different resolution of the issue of the burden of proof required in parental termination actions.

Keywords: termination of parental rights, family integrity right, private culture of family, familial rights, burden of proof on state actions to remove a child from parents' custody

JEL Classification: K10, K19

Suggested Citation

Bohl, Joan Catherine, Those Privileges Long Recognized: Termination of Parental Rights Law, the Family Integrity Right and the Private Culture of Family. Cardozo Women's L. J., Vol. 1, No. 323, 1994. Available at SSRN:

Joan Catherine Bohl (Contact Author)

Stetson University - College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States

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