My Family Belongs to Me: A Child’s Right to Family Integrity
Posted: 13 Aug 2019
Date Written: 2019
Every day in the United States, the government separates children from their parents based on their parents’ immigration status, incarceration, or involvement in the child welfare system. Under current law, children’s ability to claim a constitutional right to family integrity to keep their families free from government intrusion is uncertain. The U.S. Supreme Court has left the issue unresolved. Many judicial circuits are also silent on this issue. While under Fourteenth Amendment due process jurisprudence it is clear that parents have a fundamental liberty interest in their relationship with their children, the reverse is less clear. A parent can forcefully assert a constitutional violation when the state seeks to infringe on their familial relationship through the child welfare, criminal and immigration systems. A child’s assertion of the same right, however, cannot rest on clear precedent and is less forceful as a result. Absent a distinct right to family integrity for children, the state is able to harm children without adequate constraints on its power. Many circuit court decisions and international conventions support the idea that children too should be able to assert a constitutional interest in their relationship with their families. But the legal doctrine is underdeveloped and not consistent across jurisdictions. A child’s right to family integrity is a necessary, enforceable constitutional right because without it courts may make decisions about what is in a child’s best interest without hearing from the child herself, without considering and addressing any conflicting interests between a parent and child, or on the basis of an incomplete record because the parent did not assert his right to family integrity. As a result, a child can be an unintended victim of child welfare, criminal, and immigration legal systems targeting her parents without any recourse by her. A child could lose her family integrity and be separated involuntarily from her family because of an allegation of neglect or abuse, a conviction leading to incarceration, or a deportation proceeding against her parent. Without the ability to assert her constitutional right to family integrity, any resulting family separation is inappropriately outside of the child’s control.
This article is the first to comprehensively examine whether and under what legal authority a child has an autonomous right to be with her family. The article analyzes the legal implications, as well as the benefits and disadvantages for children and their families, if such a right exists. In undertaking this exploration, the article also examines the historical, cultural, and theoretical principles supporting a child’s independent right to family integrity, including consideration of international laws and conventions.
Keywords: immigration, child welfare, child separation, family separation, mass incarceration, cash bail, pretrial detention
JEL Classification: k37
Suggested Citation: Suggested Citation