Potential Topics for Future Workshops
The law surrounding the rights of fathers and their children in private custody cases has developed quite a bit over the past thirty years. The tender years doctrine, which presumptively favored mothers in such cases, has been eliminated and replaced by presumptions of joint legal and physical custody, which emphasize the importance of equal access to children for both parents. Similarly, the law surrounding children's rights in custody cases has developed as well. Most child custody statutes require courts to consider the wishes of mature children and permit judges to appoint lawyers to provide independent representation to children. Additionally, the American Bar Association has launched a major initiative to encourage attorneys to represent children in these cases pro bono and has provided grants to legal service organizations across the country to do so.
Yet despite the law's progress in private custody cases, considerable work still needs to be done in developing the associational rights of children and fathers, but in a different setting -- the child protection system. Fathers are systematically shut out of child welfare cases and often children are placed into foster care without any inquiry about the whereabouts or fitness of the father. Recent studies have confirmed this, indicating that often case workers do not even inquire about the location of the fathers or paternal relatives. Children are deprived of important familial relationships for no good reason.
What exacerbates this enormous problem is that in many states, the law permits this to occur. In at least five jurisdictions, including Michigan, appellate courts have specifically held that in order for a court to assume custody of a child, a finding of neglect or abuse only has to be made against one parent. Once such a finding has been made, the court can control all decision making regarding the child including his placement regardless of whether a fit and willing parent is available. The non-offending parent has no procedural rights and at no point does the court need to find him unfit. This doctrine has been used in case after case to the detriment of fathers, who are shut out of the process. In one case, a jury found that a mother had abused the child and specifically found that the father had not. Yet, the judge, based on the finding against the mother, assumed custody of the child and decided not to return the child to the father. Subsequent appeals by the father to the Michigan Court of Appeals and Supreme Court were unsuccessful. As it stands, the law permits state agencies to deprive children of important relationships with fathers without any due process. We need to challenge this. Endemic sexism spans the process. It isn't just that fathers get short shrift on the front end, they get less consideration throughout the process. For example, there are simply no programs for teen fathers to be placed with their babies while these programs do exist (probably in inadequate numbers) for teen moms. Even fathers with very effective parenting skills and the capacity to provide proper care for their children are denied custody in circumstances when children would be returned to their mothers.
Related to the parental due process issue above, but focusing on the child's legal interest, a workshop could ask: what is or ought to be a child's interest in biological relationships? What is the child's legally protected interest in preserving psychological nurturing relationships? What protection should the law extend to a psychological parent relationship between a child and a non-parent caregiver? How should this be done? David Meyers, a Michigan Law graduate teaching at the University of Illinois, has written a series of articles on the constitutional aspects of biological parents, non-biological parent figures and the scope of parents' rights. The changing realities of the American family will continue to challenge us as to the place of biology, continuity of caretaker and psychological parentage.
One idea, consistent with existing constitutional doctrine, would be extending standing to other significant persons in the child's life. That is, once the court adjudicates the matter, state laws should permit a broader participation in the court proceedings to take into greater account the needs and interests of children rather than focusing singly on whether the fault and failures of the parents is serious enough to warrant termination of parental rights. From a child well-being perspective, the ideal outcome is a figure who will provide perfect continuity of relationships, surroundings and environmental influence, and not necessarily the one whose due process claims over the relationship with the child trump all. At the dispositional stage of the child welfare process, when reasonable efforts to rehabilitate the family have failed, it may be wise to open the process up to whoever is interested in the future of the child so that they might present alternative visions of permanency for a given child. The child will be well served if the court, agency, and family consider the alternative permanency plan from as many perspectives as possible.
Sacha Coupet wrote "it bears repeating that once the issue of children's relationship needs and interests is framed a priority as a matter of competing rights of adults, we miss out on an opportunity to maximize the relational richness of children's real lives. More disturbing, our clumsy attempts to resolve what are incredibly complex connections that children have with significant others continue to miss the mark."
One workshop could review non-adversarial conflict resolution (NACR) mechanisms in children's legal cases. Mediation, family group conferencing and problem-solving courts are only a few of the experimental approaches used to focus more attention on addressing the underlying problems facing the child and his or her family and less attention and energy on adversarial litigation. Many commentators criticize the U.S. approach to child protection as too adversarial, encouraging conflict rather than collaboration, and defensiveness rather than open confrontational investigation as our case-finding mechanism and the adversarial character increases as a case reaches the legal system. Our system also focuses narrowly on the immediate family in child welfare proceedings. There is a strong body of support for the proposition that the extended family should be encouraged, engaged, and empowered to provide for children at risk of foster care.
Several scholars have observed that society needs to move away from a "rights-based" approach to these family problems. No amount of more careful calibration of those rights will solve the problems facing families in the child welfare system, they say. In the future, the child welfare system will have changed to be less confrontational in favor of a more therapeutic, problem-solving method that engages the entire family and other individuals in children's informal networks. Clare Huntington of Colorado is one scholar who says we need to shift our focus away from rights and towards problems. She urges use of family group conferencing and similar approaches as more effective at protecting the legal interests of both children and parents and in solving the underlying issues.
But, we need to incorporate these techniques into the broader jurisprudence. While a problem-solving approach is attractive, there must ultimately be mechanisms to protect rights of children and parents as well.
THE U.N. CONVENTION ON THE RIGHTS OF THE CHILD
One semester's workshop could have an international theme and draw upon international norms and practices affecting children in child welfare legal proceedings. The United Nations Convention on the Rights of the Child, the most widely supported human rights treaty in the history of the world, is still not ratified by the United States. When it was opened for signatories on January 26, 1990, it garnered the greatest number of signatories ever in a single day: 61. It proceeded to garner more ratifications than any other human rights treaty, 192 or 194 countries. Only Somalia and the United States have not ratified the Convention. Yet there are legitimate concerns on the part of the U.S. opponents. The organized resistance of the U.S. is generally based on a fear of eroding parental rights and encroaching on the traditional state control of family law issues. For a number of decades, religious and cultural conflicts over the family have been frequently litigated as constitutional issues, and the resulting decisions have left religious conservatives with a deep distrust of concentrating decision-making authority over family policy issues in small, elitist institutions like the Supreme Court. Another criticism raised is that, unlike other countries, America would not adopt a law unless we intend to follow it. The argument is that the U.S. is not as deviant as to children's rights and interests as we appear from the bald fact that we are the only government not to have ratified the Convention. Large numbers of countries, approximately 41 by one count, have no child protection proceedings or bureaucracy devoted to child welfare.
The national political climate is about to change and the Children and the Law Workshop could be influential in showing the direction for the next President and the U.S. Senate. We would seek to understand the objections more clearly and devise the appropriate RUDs (Reservations, Understandings and Declarations) that could accompany a U.S. Ratification. Perhaps the CRC can be understood so as not to unduly empower either the judiciary or international bodies such as the UN Committee on the Rights of the Child. Rather, the CRC, rightly understood, could empower the entire society, including families and parents, to seek the best interests of children. We would want to engage Jaap Doek again, the chair of the UN Committee on Children who participated in our 30th Anniversary Symposium. Jean Koh Peters of Yale Law School has done extensive work on the protection of children and their rights internationally as has Berndardine Dohrn of Northwestern. The American Bar Association has endorsed the CRC and their leaders participated in a conference in May 2006 urging its adoption. We would again invite Howard Davidson, Executive Director of the ABA Center on Children and the Law and include Jonathan Todres, author of The UN Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implication of U.S. Ratification. U.S. Senator Debbie Stabenow has been a strong supporter of children's issues and may be willing to participate and help disseminate our analysis and recommendations at the highest levels.
CHILDREN'S RIGHTS TO BASIC NEEDS
A central concern of child advocates today is the large number of American children who do not have a fair start in life. About 17% of America's children begin life in poverty and lack adequate health care from the beginning of their lives. These children often do not have sufficient food or clothing and may be homeless. Evidence shows that early childhood attachments shape lifelong learning competence. These children are not ready for school and even if they were, the educational opportunities offered in their neighborhood are sorely lacking. Child advocates would say that we should fight for the human right of all children to have a fair and healthy start to their lives.
How can the law address these issues? We might want to ask speakers to discuss a child's legally enforceable right to health care, basic food, clothing and shelter, a child's right to a reasonably decent education (educational funding disparities). Such a workshop would explore theoretical approaches to legal rights of children, but also draw on other disciplines. In this case, sociology could inform policy makers as to the link between childhood maltreatment and violent delinquency/criminality and the costs to society from failing to provide for our youth at the youngest ages. Psychology and public health would have very useful perspectives.
Examining how poverty affects child welfare issues could serve as an interesting and broad topic on which to focus. Some argue that the concept of family autonomy has been used to justify limiting governmental assistance to families before children are removed. The workshop could explore how to change this and provide a theoretical justification for general poverty relief efforts and the efforts to support American families. There is a strong view that for the most part, child abuse and neglect is not something that deviants commit but something that is often caused by conditions society creates. Addressing some of those underlying conditions would directly address many of the problems involving the child welfare system.