For the first time, the ALI is undertaking a comprehensive explanation of the legal issues related to children, which should be of great benefit to the legal community and to society generally. Traditionally, children had few rights, and full authority over their lives was vested in their parents. A paradigm shift began in the 1960s and was helped along by several Supreme Court decisions extending certain constitutional rights to children. Since then, children have gained stronger protection of their expressive and due-process rights and greater autonomy in some circumstances. At the same time, ceding independence to children in some spheres may have resulted in harsher consequences for delinquency and criminality. The historic justification for rehabilitative treatment for youth offenders—diminished culpability by virtue of immaturity—had been eroded. That trend itself has recently been reversed by courts and lawmakers in light of developments in social-science research into juvenile development.
The law regulating children, and their relationships with family and the state, has grown complex. We now grapple with creating a cohesive understanding of the law that balances children’s rights against parental authority and the state’s commitment to support child wellbeing. That is the purpose of this project. And though this is a Restatement rather than a model code, when there is no clear consensus, we aim to support progressive statements of the law. For example, the Restatement disfavors black‑letter formulations that allow unwarranted state intrusions into the workings of low‑income or cultural‑minority families.
The Restatement is organized into four broad, context-oriented Parts that overlap slightly. The first Part examines the law relevant to family relationships, namely the authority and responsibilities of parents as well as the grounds and consequences of state interventions in familial relations. The second considers children’s rights in public schools, where the state’s power over children is heightened. That Part also explains the state’s obligations to provide education and to keep students safe. Third, the Restatement deals with children in the justice system. Children possess procedural rights in delinquency proceedings that trace back to the Supreme Court’s 1967 In re Gault opinion, and the law regarding a child’s competence to stand for criminal proceedings has changed greatly in the last decade or so. Social science factors heavily into the developments in this Part. Finally, the fourth Part contemplates the relationship between the child and society outside the contexts of family, school, and the justice system. While children do not possess the full rights of adults, there are some situations in which children (and especially mature children) do enjoy more autonomy, such as in medical decisionmaking.
Part I first aggregates the obligations parents owe their children and the authority parents have over their children. Core parental rights include the abilities to inculcate a child in the religion of the parent’s choosing and to decide the type of education the child will receive. With power comes responsibility; among other things, parents must provide an education and economic support. Parents must also provide reasonable medical care to their children, though the law allows for religiously motivated alternatives in many circumstances.
Another power parents wield is the ability to make decisions about a child’s familial associations. While the Supreme Court, in Troxel v. Granville, held that a court cannot interfere with a parent’s associational decision under a best-interest standard, the Restatement recognizes that a court may interfere with such a decision under a harm standard. Significantly, harm is not an element of the claim when the third party claims to be a de facto parent, has lived with the child for a significant period of time, and has performed a majority of the parenting functions for the child or has shared parenting functions with a biological parent. The underlying policy consideration: a child is presumptively harmed when bonded relationships are severed. The relevant Section does not limit the right to seek visitation only to close family members, like siblings and grandparents. Instead, in recognition of diverse family dynamics across cultures, the Section refers simply to third parties.
Part I then looks to what happens when parents don’t live up to expectations. The state may intervene in cases of abuse and neglect, which each come in many varieties. Here, the guiding principle for the state is to protect the child’s wellbeing. That may mean removing a child from an abusive home, or, in egregious cases, terminating the parental rights of an offending parent. However, the societal presumption that a child is typically best off in the care and custody of his or her parents reveals a tension inherent in the cardinal rule. The Restatement attempts to make sense of these competing child-protection and family-protection interests.
Part II turns to the relationship between children and the state in the context of public schools. To begin, all states offer a constitutional guarantee of free education. When a child is in public school, the state takes on a quasi-parental role, and its authority over the child is necessarily heightened. Though a school may regulate students in many ways, its powers are not unlimited. The second Part deals largely with the First Amendment rights of children in schools. Students’ expressive rights and the limits on schools’ abilities to limit said expression have been the subject of much litigation, but the Supreme Court has as yet stitched an incomplete patchwork explaining the extent of those rights. The Restatement pulls the important principles from the Supreme Court’s five cases on the subject to give a fuller account of the law.
The third Part shifts focus to the interactions between children and the state in the justice system. How the state handles youth crime has changed drastically since the 1960s, and this Restatement aims to buttress the progressive reforms that have occurred. In 1967, the Supreme Court ruled in In re Gault that children are constitutionally entitled to counsel and other procedural protections in delinquency proceedings, just as are adults in criminal proceedings. Thus began the proliferation of the idea of children as rights-holding people. By the 1990s, perhaps spurred by this new view of children and by an increase in crime generally, laws regarding youth crime became more punitive. As such, more children were shifted into the adult criminal system. But the system again shifted in the 2000s when social-science research suggested that the mental immaturity of children made them less responsible and more prone to rehabilitation. It is this developmental approach that our project entrenches in its statement of the law. In that vein, Part III features explanations of the competence of minors to participate in delinquency proceedings as well as related procedural issues. This Part also discusses the age boundaries for delinquency and criminal proceedings, and the standards employed in transferring a child to adult criminal court. We mostly leave the topics of prosecution and sentencing to the Model Penal Code.
The fourth and final Part examines the broad area of children in society. That is, it considers children as rights‑holders outside the familial, educational, and judicial contexts explored in the previous three Parts. Part IV spans such topics as ability to contract, liability in tort, and child-labor laws. It also addresses children’s rights of access to various products and services, including those geared toward adults—tobacco, alcohol, pornography, and violent video games. And while parents have great authority over medical care for their children, the children themselves have complicated rights in this sphere, especially in relation to sexual and reproductive health decisions. The upshot is that the law affords mature minors more bodily autonomy to reflect the reality that a 16-year-old possesses vastly greater intellect than does a six-year-old. Importantly, the Restatement even summarizes the quickly developing law surrounding child sexual orientation and identity, including sexual (re)assignment procedures. This will no doubt be relevant to many practitioners.
This first Restatement of Children and the Law is a big undertaking. It takes a broad view of the law, hones in on important legal themes, and aims to create a comprehensive statement of the law. Two of the greatest challenges in the process are reconciling differences between jurisdictions and filling in gaps. To do this, we balance competing values. Foremost is protection of the wellbeing of the child, which acts as the guiding principle. But we must temper that against the core rights of parents to control the upbringing of their children and against the needs of the state to maintain order. We also look outside the law, to things like developmental science and principles of self-determination, for guidance. These threads are weaved throughout the Restatement to give readers a complete and coherent account of children and the law.
As a jurist who has devoted much of my professional career to the betterment of children, I am proud to work with the ALI on this important project. The willingness of this institution to embark upon this venture reflects society’s move towards recognition of children as autonomous beings with individual needs, desires, feelings, and concerns. Two competing realities present real challenges in this area of the law: (1) children frequently lack the maturity and knowledge necessary to protect themselves and to make appropriate decisions, and (2) children are worthy individuals entitled to varying degrees of independence, deference, and respect depending upon their maturity levels. I admire the ALI for rising to the challenge—our children deserve it.