My Family Belongs to Me: A Child’s Constitutional Right to Family Integrity

Abstract

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—and the children have no constitutional say in the matter. The majority of these families are racial minorities and economically underprivileged. Under current law, children’s ability to assert a constitutional right to family integrity to keep their families free from government intrusion is not always clear. This is in part because a single piece of Supreme Court dicta has muddied an otherwise clear family integrity doctrine and many federal circuits are also silent on the issue. Further, many children’s advocates fail to assert this argument in court, or the children are without advocates at all. Accordingly, the law remains stagnant.

Under Fourteenth Amendment due process jurisprudence, it is clear that parents have a well-established Fourteenth Amendment fundamental liberty interest in their relationship with their children. Parents can therefore 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, has not been used with the same effect. As a result, the state is able to harm children without adequate constraints on its power. A child’s enforceable constitutional right to family integrity is necessary 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 their right to family integrity. As a result, a child can be an unintended victim of the criminal, immigration, and/or child welfare legal systems targeting her parents. A child could be separated involuntarily from her family because of an allegation of neglect or abuse, a conviction or plea leading to incarceration, or a deportation proceeding against her parent. Without asserting her constitutional right to family integrity, any resulting family separation is entirely—and inappropriately—out of the child’s control.

This article is the first to argue that children should assert their right to family integrity in legal proceedings against their parents that could result in the destruction of their family units. It comprehensively examines the legal, theoretical and international legal principles that support such arguments.

Keywords: immigration, child welfare, child separation, family separation, mass incarceration, cash bail, pretrial detention

JEL Classification: k37