{"id":4463,"date":"2023-11-04T15:28:18","date_gmt":"2023-11-04T15:28:18","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=4463"},"modified":"2023-11-04T15:28:18","modified_gmt":"2023-11-04T15:28:18","slug":"better-than-best-interests-ensuring-childrens-wellbeing","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2023\/11\/04\/better-than-best-interests-ensuring-childrens-wellbeing\/","title":{"rendered":"Better Than \u201cBest Interests:\u201d Ensuring Children\u2019s Wellbeing"},"content":{"rendered":"\n\n\n

(Source<\/a>)<\/p>\n

<\/p>\n

Children must be protected. This<\/a> obligation<\/a> animate<\/a>s much<\/a> of<\/a> United States<\/a> political<\/a> landscape<\/a>. In the name of their protection, policymakers have pursued laws limiting not only children\u2019s access to<\/a> healthcare<\/a> and<\/a> to<\/a> information<\/a>, but also adults\u2019 access to<\/a> healthcare<\/a> and to<\/a> information<\/a>. In this way, children\u2019s protection is often instrumentalized to repress the autonomy of all. In decisions regarding children, courts are guided by a policy of protecting children\u2019s \u201cbest interests\u201d<\/a>; but does this policy unduly interfere with the freedoms of adults? And more importantly: is it effective in protecting children?<\/p>\n

Child maltreatment is an ongoing and pervasive problem. Over 1\/3 of children experience a child protective services investigation before they turn 18<\/a> and an approximated 600,000 children were maltreated in just 2021<\/a>, a prevalence rate<\/a> that<\/a> had not<\/a> changed much<\/a> in the prior<\/a> 7 years<\/a>. Children are maltreated both at the hands of family members and state-assigned<\/a> custodians<\/a>.<\/p>\n

Not only harmed by direct mistreatment, children are also structurally disenfranchised. Kicked out<\/a> of public spaces<\/a>, facing barriers to transit<\/a>, suffering from decaying school budgets<\/a>, and with only a limited legal voice of their own<\/a>, children as a political group are amongst the most<\/a> marginalized<\/a>. The United States especially lags behind other major developed countries in protecting children\u2019s rights.<\/a> How can policy simultaneously protect the child\u2019s interest in safety and demarginalization and the adult\u2019s interest in freedom and autonomy? In this article, I argue that bolstering children\u2019s rights against the state effectively addresses each of these interests.<\/p>\n

<\/p>\n

The Law<\/p>\n

Parents have a \u201cfundamental<\/a>\u201d right to direct the upbringing of their children, which courts have interpreted to mean that parents have a virtually<\/a> unreviewable<\/a> decision-making<\/a> power<\/a> over their children\u2019s lives. The federal or state governments may only interfere with a parent\u2019s decision when there is a \u201ccompelling state interest<\/a>\u201d to do so \u2013 such as protecting the child from harm.<\/a><\/p>\n

Omnipresent in family law is the \u201cbest interests of the child\u201d standard. This doctrine is relevant when the court assumes decision-making power over a child\u2019s life, such as during custody determinations<\/a>. Otherwise, courts presume that a parent\u2019s decision for their child<\/a> is in the child\u2019s best interest<\/a>, only rebutting that presumption through a finding of<\/a> parental unfitness<\/a>. When \u201cbest interests\u201d doctrine is used, it works within a framework of child welfare<\/a>, not child rights. Children deemed \u201cmature<\/a>\u201d gain access to more autonomy and rights<\/a> but are still largely covered by a child welfare framework<\/a>. Thus, the doctrine creates a fault-based system that awards control of children to an entity deemed fit.<\/p>\n

<\/p>\n

The Problem<\/p>\n

\u201cBest interests\u201d doctrine fails to protect the liberty interests of parents or the safety of children because it is a substitution for parental discretion rather than an actual balancing of interests in tension. The doctrine fails to protect parental interests in the sense that it too quickly<\/a> interferes with a parent\u2019s ability to advocate for their children<\/a> in the case of undervalued parents<\/a>. It fails to protect children\u2019s interests by assuming parents effectively advocate for their children; it has no tool<\/a> for better aligning that advocacy with the child\u2019s wants or needs aside from preventing maltreatment<\/a>. Conversely, when the doctrine assumes parents cannot or will not advocate for their children, it does not provide a useful alternative<\/a> \u2013 instead reassigning the child a new advocate in the form of the state or a foster custodian<\/a>.<\/p>\n

Even if \u201cbest interests\u201d was expanded to review any parental decision outside of a fault-based framework, it would still be ineffective in producing child safety because the doctrine is aimed less at protecting the interests of children and more at protecting the interests the state has in children. For example, community integration is deemed to be in a child\u2019s best interest when the child comes from a Christian<\/a> or middle-class household<\/a>, but not if the child comes from a working-class urban community<\/a> or a family deemed neglectful<\/a>. Children\u2019s interests do not explain these different outcomes; community integration has the same effect upon the child regardless of how conventionally \u201cgood\u201d the community is<\/a>. The interests of savior-adopters<\/a> \u2013 a more influential interest group than the families from which adoptees hail<\/a> \u2013 do explain the difference, as foster children from \u201ctragic\u201d homes make better adoptees if they are unencumbered by ongoing connections to their past.<\/p>\n

<\/p>\n

A Solution<\/p>\n

A system based on rights<\/a> rather than welfare<\/a> would continue to provide a floor of treatment for children without relying on the assumption of a willing and able advocate existing.<\/a> By reassigning power from the state to the child to represent the child\u2019s interests, the involvement of third-party interests is diminished in decisions regarding children\u2019s lives<\/a> while creating a tool to challenge poor parental care outside of a fault-based paradigm<\/a>. And incidentally, by using a rights-based system, children\u2019s dignity and personhood is affirmed, reducing the risk of adults being stripped of autonomy or dignity<\/a> through comparison to children.<\/p>\n

This solution moves child welfare policy in the right direction, but it alone does not completely resolve the issue of children\u2019s safety and demarginalization. A rights-based system does not<\/a> necessitate<\/a> and likely would not take the form of affirmative rights<\/a>. Without an obligation to intervene at the individual level, cases of severe maltreatment could continue regardless of a rights-based or interest-based system. Furthermore, the issue of competing rights is not yet resolved in US jurisprudence<\/a>. Where a child\u2019s rights are in direct conflict with their parent\u2019s, a court would likely rule in favor of the parent<\/a>, limiting the efficacy of the system to challenge non-maltreatment harm. To fully address a child\u2019s interests in wellbeing, broad human rights reform will be needed.<\/p>\n

<\/p>\n

Suggested Citation: Alecia Robins, Better Than \u201cBest Interests:\u201d Ensuring Children\u2019s Wellbeing, Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter (November 4, 2023), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/better-than-best-interests-ensuring-childrens-wellbeing\/.<\/p>\n

<\/p>\n

\"\"
Alecia Robins is a second-year law student at Cornell Law School. She received her Psychology degree from Hofstra University in 2021, and currently serves in a leadership role for the Cornell chapters of the Black Law Students Association, Outlaw, IF\/WHEN\/HOW, and Law and Political Economy.<\/figcaption><\/figure>\n","protected":false},"excerpt":{"rendered":"","protected":false},"author":1,"featured_media":4464,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[18],"tags":[],"class_list":["post-4463","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-feature"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/4463","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=4463"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/4463\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/4464"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=4463"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=4463"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=4463"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}