I am listening to a guest lecturer in my Child Protection class — she is explaining the constitutional framework for parental rights in the U.S., with an emphasis on what it takes to overcome the burden of strict scrutiny and take away a parent’s custody of his/her children.
What is interesting to me is this idea I keep taking away from both this class and my Family Law class: that what we are really (still) talking about are the rights of parents to own children as a form of property, as a form of chattel even. This is the way women were conceived in our legal system and that of Europe until the 19th century with the advent of the Married Women’s Property Acts. Now I am not advocating for a lower standard for taking children away from their parents — I am a big fan of constitutional protections for people’s fundamental rights, which I believe does include the right to parent as one sees fit. That is not necessarily the same thing, however, as having a caregiver who is fit to be a parent.
The discourse around child protection seems to be geared towards the concept of how to secure safe custody for children once they are already deemed to be better off separated from their parents (or other legal custodians). It doesn’t seem that we address the problematic constitutional interest undergirding the scrutiny we use to evaluate court actions seeking to deprive a parent of his/her rights. That constitutional interest is actually the property rights of a parent played out in their, essentially, ownership of a child. The constitutional right that is NOT created or protected in our system are the rights of a CHILD…
I will end here for today, but my ears are pricked for further information since finding that the U.N. actually endorses an “holistic approach” to child protection — meaning, the international community does what we don’t. It recognizes the rights of children as being the fundamental right calling for protection. Not the property rights of parents and THEN balancing that against the interests of a child. It’s about children FIRST. See the actual document and the Slate article below for more of a flavor of how American politics are in many ways set up to resist this type of change in paradigm…
http://srsg.violenceagainstchildren.org/document/a-hrc-res-16-12_406
http://www.slate.com/blogs/xx_factor/2012/06/27/texas_gop_children_are_property_not_people_.html
holistictoolkit.com 