"Against Parental Rights"

Samantha Godwin has posted on SSRN this article, "Against Parental Rights":

This article advances an interpretive account of parental rights and builds a normative case against them. This normative account considers how parental rights function in existing constitutional and family law, and assesses theoretical arguments that seek to justify them.

This article begins by describing the most common, child-centered justification for parental rights: that parents are empowered in order to protect children’s best interests. I argue that these child-centered accounts do not justify the current legal regime governing parental rights. Instead, current parental rights are better understood as quasi-property interests, residual from historical traditions where children were more explicitly regarded as their parents’ property.

The middle part of this article advances the thesis that the quasi-property functioning of parental rights is not a contingent feature of American law of parents and children. It is instead characteristic of granting parents separate autonomy interests in determining the path of their children’s lives. Parental autonomy rights displace and diminish consideration for children’s interests and objectify children. This article introduces the concept of “desire-contingent goods” and argues that parental autonomy rights are paradigmatically the right to choose desire contingent goods for children regardless of whether they are desired or not. This denies the equal importance of children’s desires, subjective experiences and perspectives on their own lives. As a consequence, basic doctrines in constitutional and family law cannot be reconciled with liberal and egalitarian commitments.

The second half of this article evaluates alternative theoretical justifications for parental rights. These include constitutional and philosophical arguments based on personal liberty and family privacy, as well as philosophical arguments based on relational rights, ethics of care, and the Lockean labor theory of value. These arguments all fall short and, in crucial ways, rely on denying children equal moral consideration. The article concludes with recommendations for legal reform.

If only to "stay sharp" and clear-eyed, read this piece -- especially the "recommendations for legal reform."  Here's a bit from the conclusion:

An essential part of long-term reform of American family law should include eroding and ultimately overruling existing case law holding that parents have a constitutionally protected substantive due process right to the custody and control of their children.

For some different views, check out our own Michael Scaperlanda's "Producing Trousered Apes" (here) or my own "Taking Pierce Seriously" (here).