The relationship rights of children / James G. Dwyer.

Format:

Book

Author/Creator:

Dwyer, James G., 1961-

Language:

English

Subjects (All):

Parent and child (Law)--United States.

Parent and child (Law).

United States.

Children--Legal status, laws, etc--United States.

Children.

Children--Legal status, laws, etc.

Guardian and ward--United States.

Guardian and ward.

Physical Description:

xii, 364 pages ; 24 cm

Place of Publication:

Cambridge ; New York : Cambridge University Press, 2006.

Summary:

This book presents the first sustained theoretical analysis of what rights children should possess in connection with state decision making about their personal relationships, including legislative and judicial decisions in the areas of paternity, adoption, custody and visitation, termination of parental rights, and grandparent visitation. It examines the nature and normative foundation of adults' rights in connection with relationships among themselves and then assesses the extent to which the moral principles underlying adults' rights apply also to children. It concludes that the law should ascribe to children rights equivalent (though not identical) to those adults enjoy, and this would require substantial changes in the way the legal system treats children, including a reformation of the rules for establishing legal parent-child relationships at birth and of the rules for deciding whether to end a parent-child relationship.

Contents:

1 Why Rights for Children? 11

I Rights Discourse and Children's Lives 12

II Children's Rights vs. Limited Government 17

III How Do We Know a Right When We See One? 22

2 The Existing Relationship Rights of Children 24

I Direct Decisions by the State 26

A) Assignment of Children to Legal Parents 26

B) Creating and Maintaining Social Parent-Child Relationships 40

1) Custody disputes between legal parents 40

2) Contact with a noncustodial legal parent 46

3) Custody disputes between a legal parent and a nonparent 50

C) Ending Legal Parent-Child Relationships 53

D) Children's Relationships with Siblings 59

II State Delegation of Decision Making to Custodians 62

3 Paradigmatic Relationship Rights 68

I The Relationship Rights of Competent Adults 70

A) The Strength of the Right 70

B) The Scope of the Right 74

C) What Adults' Rights in Relationships among Themselves Do Not Include 77

D) Contrasting Adults' Rights with Children's Rights 79

II The Relationship Rights of Incompetent Adults 80

A) Creation of Guardian-Ward Relationships 82

B) Determining Living Arrangements 85

C) Taking into State Custody 87

D) Termination of Guardianship 88

E) The Guardian's Power over Other Associations 89

4 Why Adults Have the Relationship Rights They Do 95

I A Welfare-Based Account of Freedom of Intimate Association 97

II An Autonomy-Based Account of Freedom of Intimate Association 106

5 Extending the Theoretical Underpinnings of Relationship Rights to Children 123

I Extending the Welfare-Based Justifications 125

II Extending the Autonomy-Based Justifications 140

III Choice-Protecting vs. Interest-Protecting Moral Rights 160

6 Rebutting Defenses of the Status Quo 170

I Parents' Rights 171

A) Rethinking the Welfare-Based Analysis 171

B) Rethinking the Autonomy-Based Analysis 176

C) Rethinking Parents' Interests 186

II Constitutional Constraints and Progressive Social Policies 188

7 Implementing Children's Moral Rights in Law 205

I Effectuating Children's Interest-Protecting Rights 205

II Problems in Applying the Best-Interests Standard 213

A) Process-Related Criticisms 214

B) Vagueness Concerns 217

1) Predictability and litigation 220

a) The effects of uncertainty 221

b) Guided discretion 224

c) Shortcomings of the alternatives proposed for custody 225

2) Bias 229

C) Epistemological Obstacles 233

III What Sorts of Interests Should Be Imputed to Children? 239

A) Actual Choices 242

B) Best Interests 243

C) Imputed Morality 245

D) Attributing Hypothetical Choices 249

I Reforming Parentage Laws 254

II Reforming Child Protection Law 279

III Reforming the Rules for Relationships with Nonparents 285

Appendix The Conceptual Possibility of Children Having Rights 291.

Notes:

Includes bibliographical references (pages 309-352) and index.

ISBN:

0521862248

OCLC:

62766713