Point of Relevance

Parental Rights – Children’s Rights

A Perfect Storm

by        Raphael A. Monsanto

A perfect storm is brewing between the legal rights of parents and those of their children.   The issues are complex, embedded in a seemingly unresolvable web of constitutional law, international law, state law, politics, activist judges, religion, and the evolving moral standards of modern times.  Cultural and legal complexity notwithstanding, the developing storm affects the relationships between parents and their children in day-to-day living. 

Child raising authority is being shifted toward a governmental view that the interests of the child are paramount.  As applied by activist courts and school administrators, government intervention in child rearing continues to remove authority from parents to raise their own children.  Many judges deny the vital role of parents in the lives of their children, and insert the government into a “parental” role in a child’s life. 

The developing storm is being fueled by the tension applied by (1) the parents’ natural desires to raise their children as they see fit consistent with their values, (2) the government’s imposition of a child-centric approach to domestic dispute resolution, (3) the ongoing attack on Christianity, and (4) other forceful factors.  The difficulty imposed by the first three factors is evident in the example of a thirteen‑year‑old boy in Washington State who was removed from his parents after he complained to school counselors that his parents took him to church too often. His school counselors encouraged him to call Child Protective Services with his complaint, which led to his placement in foster care.  It was only after the parents agreed to a judge’s requirement of less‑frequent church attendance that they were able to recover their son.  Evidently, taking a child to church several times per week is not seen by the government to be in the child’s best interest.  In fact, such frequency of church attendance is adjudicated in this case to be more damaging to the child than removal of the child from his parents and placement in a foster home.

Numerous other instances of such intervention by the government are of record in the United States.  However, the problem is not uniquely American.  Recently in Canada a Quebec father was taken to court by his 12‑year‑old daughter after grounding.  The daughter had been living with her father after her parents split up when he grounded her for defying his order to stay off the internet because she was posting “inappropriate pictures” of herself online.  Her punishment: she was banned from her Grade 6 graduation trip to Quebec City in June 2008, for which her mother had already granted permission.  The lower court and the appeals court sided with the girl, who now lives with her mother and doesn’t have much of a relationship with her dad.

Government intervention in child rearing is having a chilling effect in the parent-child relationship.  In fact, many parents will admit to reservations before they discipline their children in public.  Similar concerns are shared by teachers and school administrators who would err on the side of filing reports and complaints with governmental authorities on relatively minor disciplinary actions, such as scoldings or groundings, by parents.

As indicated, “other factors” are being organized to fuel this perfect storm against parents.  America is now poised to adopt the United Nations Convention on the Rights of the Child (“UNCRC”).  President Obama supports this treaty; Secretary of State Hillary Clinton has been a leading advocate of this treaty for over twenty years; and Senator Barbara Boxer (D‑CA) has “promised” that this treaty will be ratified during this term of Congress.  At present, virtually all law on children and parents is state law.  However, if ratified, the laws of all 50 states on children and parents would be superseded by this international law because the U.S. Constitution expressly declares treaties to be supreme over state law. 

            There are a number of positive aspects in the UNCRC, such as, for example, prohibitions on involving children in hostilities, and protecting children from narcotics and sexual exploitation.  However, under the UNCRC, parents would no longer be entitled to the legal presumption that they act in the best interests of their children.  Instead, the government would have the authority to overrule all parents on any decision concerning the child if the government believed it could make a better decision. Moreover, parents could no longer spank their children; children would have the legal right to choose their own religion (with the non-binding “advice” of the parents); and America would be under a legal obligation to increase federal spending on children’s programs.  Perhaps the limitations on the rights of parents is best illustrated in Article 2, Section 2 of the UNCRC, which states that the nations that ratify the treaty “shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”

            Enter Professor William Wagner.  A former Federal Judge and parent of two children, Prof. Wagner is a tenured professor of Ethics and Constitutional Law at the Thomas M. Cooley Law School in Lansing, Michigan.  He is a proponent of parental rights and asserts that the right of the state to intervene in child rearing traditionally came into effect when the child was alleged to be abused or neglected.  Now, however, the right of a parent has become diluted and the right of the state to oversee the rights of the child is being asserted in matters that traditionally would not constitute child abuse.  This, coupled with the UNCRC, if ratified, will shift the standard that will be applied by courts to “the best interests of the child” as the “primary” consideration.  Under the terms of the UNCRC (Article 3), parental rights and duties are treated vaguely and with little deference as something to be “taken into account” in legal proceedings.  The net effect is a paradigm shift away from the right of parents to determine the parameters of child rearing, to a right of children to make such determinations backed by the judicial system.