Children and the Law

This is an area of law that has both changed a lot in the last half century and also become more complicated and confusing. There has been a children’s rights movement in which children are recognized as legal persons. That was not the case under traditional law. Under traditional law, parents had very strong rights, almost property-like. That no longer feels comfortable and it seemed as though there was a need to rethink what was the basis of parental rights in a modern context.

There was also, in the 1980’s and 90’s, a movement in the justice system to treat juvenile offenders as adults and to sort of deny that there were differences between juveniles and adults. In the last 10 or 15 years, there has been a backing off from that position and a recognition that juveniles are different from adults, but also a general sense that there needs to be clarification of the position of children in the law and of how the law should treat children in various legal contexts. – Elizabeth Scott, project reporter

Since the 1960s, the law’s treatment of children has become increasingly complex and uncertain, in ways that would make the publication of a Restatement particularly valuable to courts, legislatures, and practicing lawyers. Additionally, this Restatement will reflect the growing trend toward incorporating developmental science and other social science research into legal doctrine when appropriate.  The project aims to present a contemporary conception of parental rights and authority with the promotion of child welfare as a core goal, while grappling with questions about the legal personhood of children.

The project is organized into four main parts.

PART I - Children in Families

This Part addresses the regulation of the parent—child relationship under contemporary law, defining the scope of parental obligations and authority to make decisions about childrearing, as well as the scope and limits of state power to intervene in the family to promote the welfare of children. Major topics include:

  • Parental responsibility and authority, including duty to provide economic support, education, medical care, religion, duty to protect children from harm by third parties, duty to rescue children from harm, among others
  • Protecting children from abuse and neglect, including the obligation of the state when a child is in state custody and the obligation of the state to reunify a family; this section will also include the Indian Child Welfare Act, which is covered in the American Indian Law Restatement project
  • Emancipation of children

Part II - Children in Schools

The aim of this section is to set out, in broad terms, the nature and importance of the right to education, the state’s obligation, and parental duty to educate. Specific topics include:

  • The scope of children’s right to education, including special education
  • Obligation to attend school, including religious exemption, private school, and home schooling
  • Student speech rights and free expression in schools — curricular vs. non-curricular settings, political expression, dress codes; school newspapers and other student publications, social media and home-based student web sites; school safety and violence prevention
  • Religion in schools
  • School discipline and order maintenance — corporal punishment, suspension, expulsion; due process rights; searches and seizures in school; criminalization of school misconduct

Part III - Children in the Justice System

Recently there have been dramatic changes in youth crime regulation. A key goal of the Restatement is to institutionalize and reinforce the developmental model of juvenile justice that has been taking hold through reforms over the past decade, dealing with the regulation of children in the juvenile justice system and the scope and limits on the state’s authority to exclude juveniles charged with crimes from this system. It does not deal directly with the prosecution or sentencing of juveniles in the adult criminal system, this is covered in Model Penal Code: Sentencing. Topics in this Part include:

  • Age boundaries of delinquency jurisdiction — minimum age; general maximum jurisdictional age for adjudication and disposition.
  • Pre-adjudication, including search and seizure, interrogation and the admissibility of statements, the use of pre-adjudication detention — regulation and restrictions
  • The attorney-client relationship
  • Mental health screening, evaluation, and treatment
  • Delinquency proceeding — minimum age, adjudicative competence, responsibility defenses, right to a jury trial in criminalized delinquency proceeding
  • Delinquency dispositions — proportionality and accountability in delinquency dispositions; right to medical, psychological, and substance abuse services; right to educational services, the role of parents in correctional dispositions
  • Transfer to criminal court — age restrictions; procedural protections, transfer standards, competence to proceed; confidentiality and exclusion of evidence — sentencing in criminal court, and conditions of confinement for juveniles sentenced as adults

Part IV – Children in Society

Children’s authority to make decisions and act on their own behalf is circumscribed by the decision-making authority granted to parents and school officials. There are, however, certain contexts in which children can exercise greater control, particularly as they approach the relevant age line between childhood and adulthood. Children are also afforded special protections, not only those secured through parental and educational obligations, but through abuse and neglect, criminal, and child labor laws. Finally, children have legal obligations that are modified to reflect their immaturity. Topics include:

  • Medical decision-making by minors, including medical decisions by mature minors and medical decisions affecting reproductive health
  • Sexual identity and activity — age(s) of consent to sexual activity, liability for sexual activity, and sexual identity and transitioning
  • Religious exercise
  • Curfew
  • Speech and expression
  • Minors’ obligations and responsibilities

Reporters

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.

Richard Bonnie

Associate Reporter, Children and the Law

Richard J. Bonnie is Harrison Foundation Professor of Law and Medicine, Professor of Public Policy, Professor of Psychiatry and Neurobehavioral Sciences, and Director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. ­­He teaches and writes about health law and policy, bioethics, criminal law, and public policies relating to mental health, substance abuse, and public health. He has co-authored leading textbooks on criminal law and public health law.

Emily Buss

Associate Reporter, Children and the Law

Emily Buss’s research interests include children’s and parents’ rights and the legal system’s allocation of responsibility for children’s development among parent, child, and state. In recent years, she has focused particular attention on the developmental impact of court proceedings on court-involved children, including foster youth and youth accused of crimes. In addition to courses focused on the subjects of her research, Buss teaches civil procedure, evidence, and family law.

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.

Solangel Maldonado

Associate Reporter, Children and the Law

Solangel Maldonado is the Joseph M. Lynch Professor of Law at Seton Hall Law. Her research and teaching interests include family law, feminist legal theory, race and the law, and international and comparative family law. Over the past decade, her scholarship has focused on the intersection of race and family law and the law’s influence on social norms of post-separation parenthood. She is currently working on a book for NYU Press that examines how the law shapes romantic preferences and how these preferences perpetuate racial hierarchy and economic and social inequality.

David D. Meyer

Associate Reporter (2016-2020), Children and the Law

David Meyer became the 22nd Dean of Tulane Law School in 2010. His expertise relates to constitutional law and family law, and he has written extensively on topics at the intersection of the two fields. He served as U.S. national reporter on family law at several congresses of the International Academy of Comparative Law, including Washington (2010), Utrecht (2006) and Brisbane (2002), and he has delivered endowed lectures or keynote addresses at BYU, Florida, Hofstra, Michigan State and other venues.