Doing Better for Child Migrants
17 Washington University Global Studies Law Review 615 (2018)
13 Pages Posted: 27 Dec 2018
Date Written: May 15, 2018
This essay responds to Ann Laquer Estin’s Child Migrants and Child Welfare: Toward a Best Interests Approach. Writing before the tragic spectacle of parent-child separations on the U.S. southern border at the hands of the federal government during summer 2018, Estin’s analysis emerges as both prescient and acutely needed in its call for prioritizing family law’s familiar best interests principle in fashioning official responses to the arrival of unaccompanied child migrants in the United States.
My response in no way disputes Estin’s argument in favor of child-centered immigration policies and their implementation. Rather, it explores whether the notoriously indeterminate best interests principle is up to the job. This indeterminacy, first identified in conventional child custody disputes, has also surfaced in the context of child migration, in which bias, political considerations, and the personal value judgments of decisionmakers can shape outcomes. To demonstrate this downside of the best interests principle, my response revisits two highly publicized controversies from the past, the cases of child migrants Walter Polovchak and Elian Gonzales, and examines contemporary contests that have arisen when young pregnant migrants have sought abortions and when LGBT families have sought to provide foster care for child migrants.
Whether or not the best interests principle proves to be the most effective vehicle, Estin and I agree that conversations about reforming the legal treatment of children generally must include child migrants, who are often forgotten and especially vulnerable. Their current wellbeing and future lives, even more than others’, depend directly on law.
Keywords: children, immigration, best interests, abortion
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