Below is the abstract for “The Enduring Importance of Parental Rights,” available for download on SSRN.

In this symposium contribution for The Law of Parents and Parenting, we argue that parental rights are—and should remain—the backbone of family law. State deference to parents is warranted not because parents are infallible, but rather because parental rights, properly understood and limited, promote child wellbeing. This is true for several reasons, but two stand out. First, parental rights promote the stability of the parent-child relationship by restricting the state’s authority to intervene in families. This protection promotes healthy child development for all children, and it is especially important for low-income families and families of color, who are subject to intensive state scrutiny. Second, parental rights ensure that parents, rather than a private third party or state actor such as a judge or social worker, make decisions about what advances a child’s interests. The legal system defers to parents’ decisions both because parents are well positioned to know what an individual child needs, and because state intervention to vindicate the decision-making power of a nonparent would expose the child to significant risks of family disruption and contentious litigation.

There are clear limits to parental rights, however, and the child-wellbeing rationale for these rights, which we describe in this Essay, provides a self-limiting principle. When a parent’s conduct poses a significant risk to a child, the state may intervene, even when the parent’s actions are based on religious beliefs. And when there is broad societal consensus about what children need—such as education and health care—the state properly preempts parental authority, requiring all parents to send their children to school and to obtain necessary medical care. But in many other instances, especially where there is no societal consensus, the law properly defers to parental judgments, at least for young children. This deference to parents is especially important for marginalized families because the judgments of other parties may reflect bias and dominant parenting norms.

In this Essay, which builds on previous scholarship and our work drafting The American Law Institute’s Restatement of the Law, Children and the Law, we also evaluate scholars’ proposals to limit parental rights. We explain that we share with these scholars the goal of promoting children’s interests but differ on the importance of parental rights. In our view, the legal system can best promote child wellbeing by enforcing a strong, but self-limiting, regime of parental rights.

Clare Huntington

Associate Reporter, Children and the Law

Clare Huntington is an expert in the fields of family law and poverty law. Her book, Failure to Flourish: How Law Undermines Family Relationships (Oxford 2014), won an Honorable Mention for the Professional and Scholarly Excellence (PROSE) Award in Law and Legal Studies from the Association of American Publishers. She has published widely in leading law journals, exploring the intersection of poverty and families and with a recent focus on non-marital families.

Elizabeth S. Scott

Reporter, Children and the Law

Elizabeth S. Scott is the Harold R. Medina Professor of Law at Columbia Law School. Scott teaches family law, property, criminal law, and children and the law. She has written extensively on marriage, divorce, cohabitation, child custody, adolescent decision-making, and juvenile delinquency. Her research is interdisciplinary, applying behavioral economics, social science research, and developmental theory to family/juvenile law and policy issues.


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