Parental rights and physical conduct

[Volokh, Eugene]

                I agree with Chris entirely when it comes to questions having to do with what to teach the child, whom to expose the child to, where to live with the child, and similar child-rearing questions:  There, in an intact family, a court may not intrude simply on the grounds that some other form of child-rearing - or some other set of child-rearers - would be more in the child's best interests, but must show parental unfitness.

                But when it comes to physical injury to the child, or danger of physical injury, many rules restrain parents without a showing of parental unfitness.  I don't think that driving a child without a child safety seat is a mark of parental unfitness; the risk to the child is fairly low, and I don't think parents should lose custody of their children for this.  Yet the law may require parents to use child safety seats.  Likewise, having a child work before a certain age might not be a mark of parental unfitness, but it is forbidden.

                Likewise, my sense is that many states, including my own California, outlaw the tattooing of minors (see, e.g., Cal. Penal Code sec. 653), which interferes with parents' ability to get their children tattooed.  I don't think the rationale is that a parent who authorizes such a tattoo is an "unfit parent" - just that when it comes to sufficiently substantial alterations of a person's body, and absent a medical reason (there is a medical exemption to the California law, by the way), those alterations should only happen with that person's consent, which can only be meaningfully given if the person is an adult.

                So I certainly don't think that the law generally mandates a "best interests of the child" standard, outside the child custody context.  But I also don't think that the law generally mandates an "unfitness [or] child abuse or neglect" standard, when it comes to decisions that involve physical injury or threat of injury (and I mean "injury" here to include physical alterations, such as tattoos).

                Eugene


From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Friday, July 06, 2012 9:07 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Parental rights and physical conduct

Yes, I'm feeling some of the same confusion as Paul.

I don't know much at all about family law.  But my understanding was that the "best interest of the child" standard was emphatically not the standard for judicial or legislative interference with parental decisions.  It is the standard for what happens to the child when custody is disputed among divorcing or divorced parents.   But I thought the standard for interfering with an intact family was much higher-a showing of unfitness, of child abuse or neglect.  Before this conversation, I assumed that unless circumcision constitutes abuse or neglect, parents have the right to do it to their children, with talk of "best interests" being irrelevant.  Another way of putting it is that the law presumes parents act in the best interests of the children, a presumption that only gets overridden in exceptional situations, a constitutional presumption under the Troxel line of cases.

So have I gotten this completely wrong?

Best,
Chris

From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Paul Horwitz
Sent: Friday, July 06, 2012 11:23 AM
To: Law & Religion issues for Law Academics
Subject: RE: Parental rights and physical conduct


This has been a very interesting discussion. I confess that at this point, I am quite confused about the meaning of "best interests of the child." I understand it is a complex, context-driven, and multivalent test. But it would certainly help to understand the foundational values and defaults here and what interests are considered admissible or inadmissible. In some sense, the thinner the exposition of the test becomes, the more I wonder what thick assumptions underlie it. Take, for instance, the claim that "[m]any would argue that it is in the "best interest of the child" to welcome him into a supportive, religious community with shared values and age-old historic traditions," and the response that "[t]he question is what is in the interest of this child today." It's my own fault, I'm sure, but I'm having trouble figuring out exactly where this leaves us. Is it that it may be in the interest of the child today to welcome him into a supportive religious community but that it is not dispositive, or that the fact that the community is well-established and has shared values is not dispositive of the child's best interests? Is it that the possibility of a supportive religious community should never be relevant as between two possible custody dispositions? Is it an empirical question to be decided in each case? If it is potentially relevant but we acknowledge that some religious communities may risk harm to the child, what counts as harm? Only serious physical/emotional harm, or any suboptimal outcome, and by what definition of optimization? I'm not asking to be made an expert in family law overnight, but I can't help but feel that "the best interests of the child" is the beginning rather than the end of the discussion, and I would welcome some--indeed, any--clarification.

Best wishes,

Paul Horwitz
University of Alabama School of Law
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