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The opportunity for children to participate in political and legal decisions that affect them; in a broad sense, the rights of children to live free from hunger, abuse, neglect, and other inhumane conditions.
The issue of children's rights is poorly defined in legislation and by the courts, partly because U.S. society as a whole has not decided how much autonomy to grant children. Although the United States is built on protecting the interests of individuals and the twentieth century saw the rights of people with special needs recognized, the nation has yet to extend to children legal standing (the right to bring a court case) and legal protection similar to that of adults.
When most children's advocates talk about children's rights, they are not referring to the same rights held by adults, such as the rights to vote, drink, smoke, and run for office. Instead, they mean that more emphasis should be placed on children's status as "natural persons" deserving of benefits under the law as provided in the U.S. Constitution and its Bill of Rights.
The U.S. legal system grants rights to people who are deemed competent to exercise those rights. This qualification poses a dilemma for advocates of children's rights because most children lack the skills to advocate for themselves in the political, judicial, or economic arena. Yet, children's rights supporters believe that because of this powerlessness, children must be granted more protections and power than has been provided in their legal status.
Parens Patriae ("the state as parent") is the philosophy that guided many court decisions in the 1990s. This approach basically assumes that the government has a duty to make decisions on behalf of children to ensure that their best interests are met. But the doctrine can be interpreted as allowing government interests to replace interests children may wish to express on their own behalf. It also assumes that what the government wants matches what the child needs, which may or may not be true.
How U.S. society defines and provides children's rights has implications for many areas: how children are represented by attorneys; how resources are distributed, for example, in a family experiencing divorce; how long some children will live in abusive situations or foster care; how the role of families is viewed; and more.
Twelve-year-old Gregory Kingsley made the news headlines in 1992 when he went to court to sever his legal ties to his parents—and won (In re Kingsley, No. JU90-5245, 1992 WL 551484 [Fla. Cir. Ct. Oct. 21, 1992; Kingsley v. Kingsley, 623 So. 2d 780 (Fla. Ct. App. 1993)]). A year later, Kimberly Mays, age 17, won her legal battle to end any parental rights her biological parents might attempt to exercise (Twigg v. Mays, No. 88-4489-CA-01, 1993 WL 330624 [Fla. Cir. Ct. Aug. 18, 1993]). What was unusual in both cases was that children were allowed to advocate for their interests on their own behalf. Some children's rights advocates believe that competent children like Mays and Kingsley must be allowed to use the courts to pursue their interests. But these particular cases may have done more to promote the discussion of children's rights than to promote actual rights.
For example, when Kingsley's mother subsequently appealed the termination of her rights, the appellate court ruled that as a minor, Kingsley alone did not have standing (Kingsley v. Kingsley). It was ultimately the support of adults who later joined Kingsley in bringing the case (including his adoptive parents), along with his parents' inability to care for him, that influenced the appeals court to affirm the lower court's decision.
The situation surrounding Mays's parentage is so unusual that few similar cases are anticipated to arise. Mays was raised by Robert Mays and Barbara Mays after being mistakenly identified as their daughter in the hospital where she was born. When Mays's biological parents discovered the switch more than a decade later, they sought visitation with Mays, starting a battle between them and the man who had believed that Mays was his daughter and had raised her alone after his wife's death.
Except when there is evidence of neglect or abuse, parents usually retain their status as preferred caretakers of their children. The case of Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) established that the Liberty Clause of the Fourteenth Amendment gives parents the right to raise their children. The government's assumption is that parents' priorities match their children's.
The situation is less clear when the conflict is between children and their parents, as in the cases of Mays and Kingsley. When a family court is considering a Child Custody or support petition, it may become aware that the parents are not acting in their children's best interests. In these cases, the court may appoint a guardian ad litem to identify the children's needs and to advocate that those needs be met. This caretaker "for the lawsuit" may be an attorney chosen to act on behalf of the child in court. But heavy increases in child protection and family court caseloads nationwide have led to long delays in making determinations on behalf of children—and have led many advocates to suggest that a solution may lie in allowing children to initiate actions for themselves.
Many situations in which children and parents do not share common interests have not been resolved in favor of the minors. These include cases that challenge laws requiring minors to get their parents' consent before an abortion or that challenge parents' efforts to commit their children to psychiatric institutions. For example, in Parham v. J. R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979), the Supreme Court decided that when parents seek to institutionalize their children in mental hospitals, the due process provided to the children need be no more than an evaluation by an independent medical decision maker. Again, the Court upheld the government's assumption that what is best for the children is what the parents and the state decide, despite criticisms that this is not always true.
Some advocates of children's rights believe that children should be afforded the same constitutional and procedural safeguards that adults are given in court. The juvenile justice system is cited by some experts as an area in which the protections granted to children lag behind those provided to adults. For example, children may be detained in situations where adults would not be. Bail is not set for children, and children do not receive the benefit of a jury of their peers. In some states, as recently as the late 1980s, minors could receive longer incarceration sentences than could adults.
Some constitutional protections were won in the late 1960s on behalf of juveniles who could be tried as adults. These protections included the right to an attorney's advice at the time when the court was deciding whether to try the juvenile as an adult, the right to a hearing on that issue, and the right to the same information the court would use in making a decision (in re gault 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 ; Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d ). However, advances in this area have not kept pace with federal and state legislation expanding the punishment of juveniles as adults.
Legal commentators have noted that the courts were seemingly willing to recognize the constitutional rights of children during the 1960s and 1970s. A series of U.S. Supreme Court decisions recognized minors' rights to counsel in criminal proceedings, to protection from self-incrimination, as well as other procedural rights and general privacy rights. However, according to some commentators, the 1988 case of Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988) marked a turning point in the Court's recognition of children's constitutional rights. In that case, the Court limited the right of children to exercise free speech and free expression. According to the decision, children's rights "are not coextensive with the rights of adults in other settings."
One 1993 study of constitutional decisions concluded that from the 1960s to the early 1990s, the U.S. Supreme Court was increasingly less supportive of expanding children's claims to constitutional rights. The study showed that under the liberal Warren Court, 100 percent of decisions about constitutional cases upheld children's claims. The Burger Court, which followed, upheld children's claims in 59 percent of such decisions, and the Rehnquist Court in 22 percent of such cases to 1993. The cases in the survey concerned issues of equal protection, due process, privacy, free expression, and free exercise of religion.
Statistics such as these prompted concern among experts as to the denial of basic legal rights given to children. During the mid- to late-1990s, a number of scholarly article were published advocating expanded rights for children. However, the trend toward restricting children's rights continued into the early 2000s. Courts, with some frequency, find that children are not capable of managing full legal rights and of making decisions on their own behalf. The question of how far society should go in allowing children to participate in determining their destiny remains a difficult challenge.
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Cannon, Scott A. 1994. "Finding Their Own 'Place to Be': What Gregory Kingsley's and Kimberly Mays' 'Divorces' from Their Parents Have Done for Children's Rights." Loyola Law Review (winter).
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