Parent and Child

In 1874, a badly beaten girl known only as Mary Ellen became the first legally recognized victim of CHILD ABUSE in the United States. Before 1874, society offered little protection for minors. Children were considered the property of their parents, and neither the government nor private individuals intervened when they were injured, overworked, or neglected. Mary Ellen was rescued from unfit parents only after the American Society for the Prevention of Cruelty to Animals (ASPCA) stepped in on her behalf. ASPCA advocates pointed out that if Mary Ellen were a horse or a dog, her mistreatment would be prohibited by statute. A judge agreed that the young girl deserved at least the same protection as an animal.

The status of U.S. children has improved dramatically since Mary Ellen's ordeal. At the turn of the twentieth century, a nationwide child protection movement helped eliminate the long hours, poor wages, and punishing conditions faced by child workers. CHILD LABOR LAWS paved the way for later reforms regarding compulsory education, foster care, protective services, HEALTH CARE, and criminal justice for juveniles.

Just how far these reforms should go is the subject of debate. A mild uproar over children's rights arose during the 1992 U.S. presidential race between incumbent GEORGE H. W. BUSH (R) and challenger BILL CLINTON (D). Scholarly articles written in the early 1970s by Clinton's wife, HILLARY RODHAM CLINTON, were at the heart of the controversy. A former lawyer for the Children's Defense Fund, Clinton questioned the traditional legal presumption of INCOMPETENCY for children. She believed that children were capable of making many of their own decisions; thus she proposed the elimination of minority status for children and suggested a new presumption of legal competence. Clinton also favored granting children the same substantive and procedural rights enjoyed by adults. Further, because children's interests are not always the same as their parents', Clinton felt that minors should be allowed to hire their own lawyers.

During the presidential campaign, Clinton's views were attacked by political opponents who claimed she encouraged children to sue their parents. Her critics predicted that Clinton's ideas would lead children to "divorce" their parents over trivial matters such as curfews, homework, allowances, and household chores.

However, Clinton's views were actually much less extreme than those of so-called child liberationists who believe that children should be allowed to vote, choose their residence, refuse to attend school, enter into contracts, and take part in activities currently reserved for adults. More radical child advocates maintain that children are just as rational as adults and that the nation's commitment to justice requires equal treatment of all people, regardless of age.

Critics of children's rights believe conferring too many rights on children would erode parental authority and the traditional family. Many conservatives believe that children lack the wisdom to make important decisions and require the guidance of responsible adults. They approve of a paternalistic approach to children's welfare rather than one that empowers young people. Critics also resent the legal system's intrusion into parents' domain, arguing that parents are entitled to the final word in their children's upbringing. Conservatives fear that if children have ready access to attorneys, a rash of frivolous or retaliatory lawsuits will erupt, destroying many fragile families in need of help. So strong is this fear that the United States is one of only two countries (Somalia is the other) that have not ratified the United Nations Convention on the Rights of the Child. Among other concerns some critics have raised against children's rights are that children could be allowed legally to join GANGS or have ABORTIONS. Some critics have gone so far as to claim that ratification of the United Nations treaty would take control of children away from parents and hand it to the United Nations (even though the U.S. Constitution does not allow any treaty to override its precepts). Some groups, such as the Children's Rights Council (CRC), believe that children have the "right" to be raised in a two-parent household. One CRC goal is to keep marriages together, but, in the case of DIVORCE, it seeks to encourage parents to share custody equitably.

Three well-publicized cases illustrate the philosophical divide over children's and parents' rights.

Kingsley v. Kingsley In 1992, an eleven-year-old Florida boy went to court to terminate the rights of his biological parents. Gregory Kingsley retained attorney Jerri Blair to represent him in a proceeding to sever all ties with his natural parents, Rachel and Ralph Kingsley. Kingsley also petitioned for his own ADOPTION by his foster parents, Lizabeth and George Russ. Rachel Kingsley opposed her son's actions; her estranged husband did not.

Kingsley persuaded circuit court judge Thomas Kirk that he had been abandoned by his mother. Most of Kingsley's chaotic, impoverished life had been spent in and out of foster care. His unstable early environment was contrasted with the loving and more affluent home now offered by the Russ family. Kirk determined that Kingsley, a minor, had the capacity to bring the action and ordered both the termination of parental rights and the adoption.

Rachel's attorney, Jane Carey, complained that a child's wish had been declared more important than the preservation of the family. Carey worried that the termination of Rachel's rights sent a message to poor parents that they could never measure up to wealthier families. It also drove a symbolic wedge between U.S. children and their parents. To Gregory's supporters, however, the ruling was an important victory on behalf of neglected, mistreated children.

On appeal, Florida's Fifth District Court of Appeals determined that, as a minor, Kingsley could not initiate a proceeding to terminate his parents' rights (Kingsley v. Kingsley, 623 So. 2d 780 [1993]). Only a GUARDIAN AD LITEM, or friend of the court, could do so. Nonetheless, the appeals court upheld the termination of Rachel's parental rights because clear and convincing evidence demonstrated her ABANDONMENT of Kingsley and because Kingsley's foster parents had properly initiated the proceeding by filing separate termination petitions. The court also found that there was no legitimate reason to order Kingsley's adoption at the same time as Rachel's termination of rights. In fact, the simultaneous adoption order was in error because the termination order was subject to appeal.

Although Kingsley's initial triumph was diluted by the appeals court ruling, it challenged traditional notions of parental "ownership" of children.

Mays-Twigg Case Kimberly Mays of Florida was nine years old when she received shocking news: she had been switched at birth with another baby and raised by parents to whom she was not related. Mays was born in a rural Florida hospital in 1978. She was taken home by Robert Mays and his wife, Barbara Mays, who later died of cancer. The only other Caucasian infant in the hospital at the time was a girl who was taken home and raised by Ernest and Regina Twigg. The switch was discovered after a blood test determined that the Twiggs' daughter, whom they had named Arlena, was not genetically related to them. A review of hospital records and further blood tests established that Mays was actually the Twiggs' biological daughter. After Arlena died of a heart defect in 1988, the Twiggs sought custody of Mays, and, failing that, attempted to win VISITATION RIGHTS. Mays requested an end to any contact with the Twiggs, saying visits with them were upsetting.

In August 1993, state circuit judge Stephen Dakan ruled that Mays was not required to meet with her biological parents because forced visitation was detrimental to her. Dakan reasoned that if a 15-year-old minor had the right to an abortion, Mays surely had the right to refuse contact with people who essentially were strangers.

Although Mays was allowed to sever ties with the Twiggs, she later chose to renew them. In a strange twist of events, Mays moved in with the Twiggs in March 1994 because of personal conflicts with Robert Mays. She soon moved out of the Twiggs' home; by age 17, she was married and, by 19, she was a mother. Later, during a brief estrangement from her husband, she almost lost custody of her son.

Although the Mays-Twigg case suggests a weakening in the rights of biological parents, the DeBoer case indicates the opposite.

DeBoer Case Jessica DeBoer was raised from birth by Jan and Roberta DeBoer, a Michigan couple trying to adopt her. Cara Clausen, DeBoer's unmarried biological mother, terminated her parental rights shortly after DeBoer was born. Dan Schmidt, DeBoer's biological father, did not sign away his parental rights because, initially, Clausen named another man as the child's father. Clausen and Schmidt eventually married and decided to reclaim DeBoer. After much legal maneuvering, the Michigan Supreme Court ordered DeBoer, who was now age two, returned to her biological parents in Iowa, saying they had the greater legal claim to her (DeBoers v. DeBoers, 442 Mich. 648, 502 N.W.2d 649 [1993]).

Despite EXPERT TESTIMONY that it was not in DeBoer's best interests to be separated from the only home and parents she knew, the court ordered the girl turned over to the Schmidts. The DeBoers reluctantly complied with the order after exhausting every avenue of appeal.

Child rights advocates point to this case as an example of how children are still considered the property of their natural parents. At the same time, support groups for birth parents applaud the decision. They believe that Jessica DeBoer—who was renamed Anna Schmidt—belongs with Cara and Dan Schmidt because Dan never relinquished his parental rights and because blood ties have a special social and legal significance.