THE RELATIONSHIP RIGHTS OF CHILDREN

Vol. 16 No. 12 (December, 2006) pp.975-978

THE RELATIONSHIP RIGHTS OF CHILDREN, by James G. Dwyer. New York and Cambridge: Cambridge University Press, 2006. 378pp. Hardback. $55.00/£30.00. ISBN: 0521862248. e-book format. $44.00. ISBN: 0511218060

Reviewed by Catherine J. Ross, The George Washington University Law School. Email: cross [at] law.gwu.edu.

THE RELATIONSHIP RIGHTS OF CHILDREN is ambitious to say the least. It aims to develop a “general theory” about the principles that should govern the state’s decisions about “children’s personal relationships.” The book focuses on a cluster of issues that have attracted a great deal of attention in the courts, the legislatures and from scholars over the last few decades: the role the state plays in defining parenthood and distributing children among potential parents, with some attention to classic third-party relationship rights such as those of grandparents. As a proponent of children’s rights, I valued James Dwyer’s earlier work, which was grounded in the real world. In this book, however, he engages in a philosophical thought experiment that takes a laudable democratic impulse to protect children and turns it into nothing less than a call for an all-powerful therapeutic state that intervenes beginning at birth.

At first glance, this volume promises to enhance the work of the many scholars and judges who have grappled with the difficult choices that arise in custody disputes between parents or when the state intervenes to remove children. Few would quarrel with Dwyer’s insistence that the needs of children should come first in both of these complex situations. The hard part is, first, to identify the child’s needs correctly, and second, to account for the doctrine of parental rights and overcome the adult decision-maker’s common tendency to empathize with parents. Dwyer initially focuses on the first issue, and advises the reader to abandon the second.

Relying on applied moral and political philosophy, and drawing from the Rawlsian perspective, Dwyer offers a theory of children’s relationship rights premised on the idea that the legal rights of parenthood should not be rooted in biology in the first instance. His proposal arguably relates to broader themes about children’s rights which are generally thought to take two forms. First is the right to have their needs met, to be taken cared of, and under the best of circumstances, loved. This vision of rights is at the heart of Dwyer’s notion that the “best” parents, assigned by courts through substituted judgment attributed to an individual child, may not be the biological parents. The second form of children’s rights allows more mature children to claim autonomous rights, and this view too is implicated in Dwyer’s proposal to the extent it challenges state decision-makers to act as “surrogate for the child” rather than arbiter of competing claims among adults and children (p.173). He offers the familiar conclusion that “every child who has the potential to become autonomous has a right – as against society as a whole and/or against [*976] specific persons [parents or guardians] to receive the care necessary to their successful development toward autonomy” (p.144).

Where does this get us as applied to the question of allocating parenthood? By Dwyer’s own account, right back to the best interests standard, the vague doctrine applied to child custody decisions in the vast majority of American jurisdictions. If that standard sounds conventional, in Dwyer’s hands it is used for novel and unsettling ends. Dwyer initially challenges us to think about the very foundations of many principles we take for granted. En route, he presents us with a thought experiment so untethered from reality that it would alter the legal landscape throughout the western world. As Dwyer blithely concedes, his approach would “require transforming much of family law in most western countries” (p.6).

Dwyer is given to broad statements in setting out his vision. Even his more routine propositions are frequently propped up by straw men. For example, Dwyer argues at length to knock down the “fiction” (p.67) that the private family occupies a private sphere neither touched nor regulated by the state, a proposition no one likely to read this book could possibly accept.

But the real problem is substantive: Dwyer’s most original, and startling, proposal calls for assignment of parents at birth. He urges that the state should, in every instance, attempt to match newborns with the parents that the child would choose if he or she could, with the goal of placing children in a position equivalent to that of a competent adult who is free to form or disavow a personal relationship. His faith in social engineering is apparent throughout his theoretical discussion, which occupies the first six chapters of the volume. But when Dwyer applies his ideas to the real world in the last two chapters, while repeatedly exhorting others to do the empirical work, the utopian nature of his vision jumps off the page.

Dwyer suggests a convoluted and costly system in which a married woman must execute a Parental Vow issued by the state’s department of social services, committing to provide her baby with “love and emotional support” as well as financial, medical, educational and other resources, and the like. The married woman who is over a certain age, is not in prison, has not abused an earlier-born child and satisfies other requirements, will then become the legal mother, and if her spouse executes the vow, he will become the legal father. This seems a lot like what happens today (except for the major change that minors would lose their children – a development that would outrage many children’s rights advocates since those cases involve two children with arguably conflicting rights). I have no theoretical objection to any measures designed to focus parents on the importance of the job they are undertaking. Of course the Parental Vow is only hortatory, like many of the promises in the traditional marriage vow (e.g., to honor and obey). Dwyer does not propose any enforcement mechanism short of the existing standards applicable to neglectful or abusive parents. [*977]

So far, this seems like just a lot of extra apparatus that results in assigning the vast majority of children to their biological parents. But Dwyer also proposes that if the married parents fail to execute the Vow within two days, “any person” (including the biological parents themselves), may petition the court for parenthood within 30 days of the birth, and the infant child shall be a party to the proceedings, represented by a guardian ad litem (GAL). (This of course also skirts the whole debate over the role and function of a GAL in general, and particularly the difficulty of representing an infant). The court would then assign the child to legal parents, based on enumerated factors that largely mimic existing best interests statutes, but with a number of disturbing class- and values- biased twists. These include “the living circumstances of the petitioner, including home environment, family resources” (a factor that sounds a lot like well-known abuses of the neglect label in the child welfare context), and commitment to “positive socializing experiences,” a category that leaves a great deal to the discretion of the observer (p.261). This is not surprising given Dwyer’s cavalier attitude toward the link between neglect and poverty. Acknowledging that the U.S. lacks the willingness to devote resources to eliminating poverty, Dwyer declines to enter the battle on the side of those who advocate alleviating childhood poverty through social programs. Instead, he says the added cost of child welfare agency and court personnel required to assign parents to all children will be much less than the cost of reducing poverty. Moreover, he predicts that since children will be assigned to “good” parents, reported instances of abuse and neglect will decline. But we know that even fully vetted adoptive parents sometimes abuse their children.

Dwyer acknowledges that his plan “would likely result in a substantial increase in the number of newborn children available to biologically unrelated applicants for parenthood (i.e., . . . ‘adoption’)” (p.264). Is he intentionally fuelling the flames of discord among those like the National Association of Black Social Workers which already views the child welfare system as a modern baby-farm for adoptable infants of color? No, he says, “the demand is principally for healthy white babies” (true enough), so infants who now fall in the “hard to place” category (nonwhite, children with disabilities or prenatal exposure to harmful substances) will by default be awarded to their biological parents if no alternative appears within thirty days of birth. How can this intrusion possibly promote early bonding between parent and child, who will end up together after all this extra process? And, since the mother is the “core” parent, according to Dwyer, he calls for genetic testing of all newborns born to unmarried women to identify fathers eligible to execute the Parenting Vow. What happened to all the debates about gender and motherhood of the last fifteen years? Can one imagine a greater state intrusion into family matters than required DNA testing in the absence of controversy?

So far, we have only covered babies born to parents Dwyer views as unproblematic. Dwyer proposes even more draconian treatment of parents [*978] considered likely to abuse or neglect their newborns based on categories of “bad” parents, easily recognizable to any reader with a passing knowledge of the child welfare system. Some of the less controversial categories are not only identical to routine recommendations from experts in the field — for example, removing a child from a parent who has killed another child actively or by failing to provide medical care – they are already embedded in federal law (Adoption and Safe Families Act (ASFA), 1997). Indeed, once again, Dwyer himself says his proposals will on the whole affect only “those who are highly likely to lose custody of their children anyway” (p.256).

The more controversial categories are deeply troubling. Despite Dwyer’s preference for the individualized decision-making of the best interests standard, he displays remarkable disregard for the complexity of individual cases well known to those who have worked with children in both the pre- and post- ASFA regimes. He proposes that all mothers in prison or facing a jail term as well as all biological parents who already have four children and are receiving public assistance would have to petition the court for legal parenthood. In Dwyer’s Leviathan state, these biological parents would come to the attention of child protection services through laws requiring providers of pre-natal services to report any evidence suggesting that an expectant mother falls into one of the enumerated categories of suspect biological parents. In the real world, such a regime would likely both inhibit many women from seeking pre-natal care and encourage abortions.

The Supreme Court roundly condemned the communal approach to childrearing in Plato’s Republic and ancient Sparta when it first enunciated the notion that parenting is a fundamental right in the U.S. (MEYER v. NEBRASKA, 1923). Dwyer goes to the opposite end of the spectrum from ancient Sparta. Instead of turning children over to the community, Dwyer would force some parents to hand over their newborn infants to substitute parents with better profiles to raise in their own private families. In the end, Dwyer’s utopian vision looks more like the dystopia of 1984.

REFERENCES:

Adoption and Safe Families Act, 1997. Pub. L. 105-89, 111 Stat. 2115 (codified in scattered sections of 42 U.S. C. (1998).

CASE REFERENCES:

MEYER v. NEBRASKA, 262 U.S. 390 (1923).

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