Children's Rights

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.