FAMILY COURT REVIEW, Vol. 44 No. 2, April 2006 330–336© 2006 Association of Family and Conciliation Courts

Blackwell Publishing LtdOxford, UKFCREFamily Court Review1531-2445© Association of Family and Conciliation Courts, 2006April 2006442Book Review

Olson / THE BOOKSHELFFAMILY COURT REVIEW

THE BOOKSHELF

Martin Guggenheim,

What’s Wrong With Children’s Rights

.Reviewed by Kelly Browe Olson

What’s Wrong with Children’s Rights

, a recent book by Professor Martin Guggenheim,is an important commentary on the development of children’s rights and their consequentimpact on parental rights. Professor Guggenheim guides readers through Supreme Courtand state cases, state and federal legislation, and his own experiences with parent andchildren clients. He presents a compelling look at the multiple negative consequences hefeels have resulted when advocates, supposedly acting on behalf of children but more oftenacting in a way that benefits adults, have failed to consider the long-term ramifications oftheir actions on society, families, and children. This book is an important resource foreveryone who advocates for children.

Guggenheim is a well known and well regarded advocate with a long and distinguishedcareer representing children and their families. Over more than 30 years, he has earned anational reputation as an expert in children’s rights. He has trained hundreds of law students,legal clinicians and clinical law professors. His book details the schism that developedbetween him and other child advocates as the children’s rights movement started pushingfor more rights for children and pursuing causes and goals with which he did not agree.

One of the theses of the book is how in a multitude of situations, the development ofchildren’s rights has curtailed the rights of parents to make decisions for their families. InGuggenheim’s opinion, this transfer of power from parent to state creates a chaotic situationfor children, their parents, and society in general. Providing legal analyses on the rights ofparents, having and losing parental rights, who has the right to be considered a parent,divorce and custody, child protection, foster care and termination of parental rights,abortion rights of minors, and the impact of children’s rights on family and juvenile justicelaw, Guggenheim argues that the adults who invoked “children’s rights” to make changesin policy and practice have not made life better or easier for children. According to thebook, the most egregious error of the children’s rights movement is when there is aseparation of a child’s interests from his parents’ interests.

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Guggenheim says “[i]t is futile to separate children and their rights from the rest of theworld.”

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His book uses the example of the best interests of the child standard to show thatthe current debates on parenting and state intervention are incomplete. He avers that thefundamental arguments on best interests that have become commonplace in family andjuvenile courts are using incomplete, inconsistent, or amorphous standards. Parental rightsshould be the determinative factor if the court seeks to do what is really best for children.

In the book, Guggenheim relates a well known folk parable about a village where manypeople are pulling babies from a stream.

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A stranger to town does not want to help thembecause he thinks that it is more important to stop whatever is happening that causes thechildren to be placed in the water upstream. Guggenheim suggests that advocates forchildren have been working on gaining rights for children without looking upstream. The

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book does not spend enough time on the individual advocates, national and local organiza-tions, and court and agency related improvement programs that are already working on waysto assist families and children. These groups and individuals are like the villagers in thestream or the others who have tried to keep children from the water. They are an importantpart of the work being done for children and families. Some are working to keep childrenout of the stream, and others work to make their journey shorter or more comfortable. Itdiminishes the work of advocates who are thinking about children when he fails toacknowledge the important contributions that these advocates have made and continue tomake on behalf of children.

In his frustration with the child’s rights movement, Guggenheim overlooks the importantrole that child advocates have in the legal system. When the state needs to step in to protectchildren, when parents are abusive or neglectful, when it is not clear who is the parent, orwhen a hard choice needs to be made about who would be the better parent to have custody,there needs to be some type of intervention. While it does not appear that Guggenheim isasking for a return to the early twentieth century, a time when issues including neglectand abuse were left to the family and were not thought proper for public discussion,the book fails to answer the important questions of when intervention is appropriate andhow much intervention is suitable in order to protect children and their parents.

Guggenheim starts with an introduction to and analysis of the basis and importance ofparental rights, that is, how they have become “among the most protected and cherished ofall constitutional rights.”

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The first chapter starts with an abbreviated history of children’srights in the United States. Guggenheim looks at Supreme Court cases and how early casesdefined and limited parental rights. Two of the cases that he refers to set the course for thenext century of decisions on parents, their children, and the role of society within the family.In

Pierce v. Society of Sisters

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and

Prince v. Massachusetts

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, the Supreme Court built on thelegal foundation and limitations of parental rights. Guggenheim quotes from

Pierce

, wherethe Supreme Court said:

“

The child is not the mere creature of the State; those who nurturehim and direct his destiny have the right, coupled with the high duty, to recognize and preparehim for additional obligations.” In

Prince v. Massachusetts

, the Supreme Court stated: “Thecustody, care and nurture of the child reside first in the parents, whose primary function andfreedom include preparation for obligations the state can neither supply nor hinder.”

These arguments seem to propose a society where parents decide what is best for theirchildren and where intervention into families is a unique and seldom used tool of the state.That is not what Guggenheim thinks has developed. He asserts that an egregious andcontinuing amount of state intervention now seems to be the norm and that power over thefamily has shifted away from parents toward the state. He surmises that this is due, atleast in part, to increased and unnecessary interventions that the state makes on behalf ofchildren.

In the second and third chapters, Guggenheim delves further into parental rights, wherethey come from, how they have been expanded, and how they have been limited by thecourts and legislatures and the development of best interests standards. He asserts thatparental rights protect children by providing a family structure that gives parents the free-dom to make decisions for the family. He also talks about how parental rights keep the statefrom making child-rearing decisions, which is good because “state officials . . . will neverknow children better than the adults who have directly nurtured them.”

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While the stateshould not know a child better than his parents, this does not guarantee that the parents havebeen nurturing the children, nor that there is not a de facto parent or close relative who doesnurture and care for the child better than the parent.

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In these chapters Guggenheim also takes on the best interest standard, the current yard-stick by which the court determines what would be best for a child. Guggenheim views thesedeterminations as “intensely value-laden inquir[ies]”

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and as “a formula for unleashingstate power, without a meaningful reassurance of advancing children’s interests.”

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He isconcerned that unless there are objective standards that adequately define the concept ofbest interests, judges and advocates will use their own standards or ideas of best interests.

Guggenheim next focuses on the problems that arise when there are court proceedingsto acknowledge or take away parental rights. He states that a person’s right to raise his/herown child deserves the greatest respect in any society committed to the rule of law.

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Hefeels the current system of law and rights does not do enough to enforce and protect legalrights of parents. In many cases the length of time it takes to have a final resolution of thecase allows additional discussions or litigation of what is in the best interests of the child,and subsequently leads to decisions based not on the fitness of the parent, but instead onthe best interests of the child analysis. He offers the opinion that this lack of consistencyleads prospective adoptive parents and other nonparents to continue to fight for children towhom they have no protected rights. He does not, however, offer a better idea for how tomake decisions concerning conflicts between parents, except to say all matters involvingchildren should be expedited in the courts.

In the fourth chapter, on the subject of who gets to be the parent, the discussion turnsto grandparents, de facto or pseudo parents, or other third parties who are seeking to main-tain or develop a relationship with a child. Guggenheim has problems with the fact thatincreasing or giving rights to these third parties will cause limitations on the rights of thenatural or adoptive parents. He makes a distinction between general third-party claims andclaims made by those who have developed a significant relationship with the child by per-mission of the parent. Once a significant relationship has developed, he seems to think thatit should not be as easy for the biological parent to remove the third party from the child’slife. Grandparents make up a very vocal group whose rights sometimes infringe on traditionalparental rights.

Guggenheim’s book presents several examples of relationships where parent-like figureslose their rights based on their lack of status. There are examples of other cases from all overthe United States. In Pennsylvania, where the parental rights of persons who stand in locoparentis to children are recognized, a court recently awarded custody to the nonbiologicalformer partner of the biological mother. The court found it was in the best interest of thechildren to be placed there after also finding that the biological mother had conceded thatthe former partner stood in loco parentis to the children by asking for child support.

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If thiscase had been decided in New York, the outcome would have been very different. AsGuggenheim points out in his book, New York does not allow nonparents, no matter whattheir relationship with the child may have been, to be granted visitation over the objec-tion of the natural parent. Even pseudo or de facto parents have no standing to bring a suitrequesting visitation in New York, no matter what their relationship has been with thechildren.

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While these cases are frequently framed in terms of whether access by the third party isin the child’s best interests, Guggenheim points out that, as in the other scenarios dis-cussed in the book, they are not really about the rights of the child to have a relationshipwith the adult. These cases are about the adult who is worried about being cut out of thechild’s life. While a parent may or may not allow a grandparent or a former partner or defacto parent access to the child and that person may be able to sue and be awarded visita-tion, at any time the adults may decide that they no longer want a relationship with the

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child. If the grandparent or de facto parent does not wish to continue the relationship, thatperson usually has no obligation to provide for, visit, acknowledge or support the child inany way. The child has little or no control over whether or not they see the adult.

Guggenheim uses case law to illustrate that the guidance on who gets to have and/orkeep a relationship with children relies more on which state has jurisdiction over the familythan on a direct biological relationship between the party and child. He suggests that thelaws will evolve to better reflect the changing realities of who constitutes a family. Whilehe is not supportive of limitations on parental rights, he does seem enthusiastic about thedevelopment of a consistent and expanded definition of who is a parent or a de facto parent.

In the fifth chapter, Guggenheim turns to the history of marriage, divorce, and custodylaws. Custody decisions have been based on many different standards. In early custodycases children were considered the property of their fathers; next, mothers were over-whelmingly granted custody, at least of young children, based on the need for a strongmaternal influence. Later the standards evolved from a return to father’s rights, to joint cus-tody, and to primary caretaker standards. The current, and according to Guggenheim, themost amorphous and inconsistent standard relies upon a determination of what is in the bestinterests of the child. He states that throughout these theory changes, the primary focus ofthe system has remained on the rights and needs of the parents, not on children. In his opin-ion, courts have also become overly reliant on a plethora of outside experts to help definewhat would be best for the child, even while parents are seeking custody based on their owndesires, not based on a best interest determination.

Guggenheim identifies some real problems with the current structure of divorce systemsin the United States. He implies that the current system encourages parents to litigate to seeif the judge can be convinced that he or she is the better parent. Guggenheim feels that ifthese cases were really about children, the judges would have an easier time with their deci-sions because it should be obvious where to place the child in line with their best interests.He also says if the cases were about children it should not be difficult to make determinationsbecause if the parents are equally capable of parenting then no matter who the judge picks,he is not making a mistake. His argument is logical but leaves out the very real problem ofhuman emotion and the shadow of lost opportunities. A custody decision, especially onethat gives sole legal or physical custody to one parent and only allows the other parent tovisit, especially where both parents were fit and capable of parenting, will have a long-lasting impact on the children and the family. These parents are seeking custody of theirchildren and have been unable to agree on who is best to have primary or sole custody. Theyhave asked the court to make a finding that one or the other of them is the better parent. Itis not always easy to determine who the better parent is and judges agonize over close decisions.

Guggenheim also fails to acknowledge the multiple ways that courts, advocates, andothers are working to change the system and to make it better for families and children.Many courts require parents to go to parenting classes or attempt to mediate their parentingdisputes. Some courts have alternative processes such as family group conferencing or set-tlement conferences that try to make the process better for families. A range of resourcesincluding parenting coordinators, court evaluators, and even sample parenting plans canhelp families to make it through the process without engaging in extensive and expensivelitigation. The professionals who assist the court when there are families who cannot agreeon a parenting plan have become an important part of the process. The overwhelming num-bers of professionals who participate in the divorce process exacerbates the difficulty of thecourt choosing between two competent and caring parents or perhaps two incompetent par-ents. This makes it even more important that someone is solely focused on the child.

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Guggenheim also suggests that lawyers for children are not a necessary part of thesecases because a child does not have standing in a divorce case. He fears that the attorneywill decide who is the better parent based on their internal criteria of a good parent or rolemodel. This ignores other realities of the divorce process. Many states allow older childrento be a part of the discussion on where they will live. Some states tie the amount of childsupport to the amount of time a parent spends with their child. Unscrupulous parents mayseek custody simply to avoid a child support obligation or to negotiate to pay less support.Given the tactics used by parents and their attorneys, it is more important than ever that thechild have an advocate who has only the child’s interest at stake. Guggenheim does not giveenough credit to the attorneys in these cases who work hard to determine what would bebest for the children, not based on their personal feelings about the parents, but based onthe legal parameters of the case and the law.

In the sixth chapter, Guggenheim presents one of his most persuasive arguments. Heconcludes that with more preventative services, child welfare and child protection systemscould lessen the overwhelming numbers of families who have children in foster care. Anobvious flaw in the child welfare system in this country is the amount of resources allocateddownstream to the litigation system and the lack of preintervention services upstream.There is also a problem with extensive and intrusive levels of intervention into families. Theproblems have been exacerbated by federal legislation, created with the best of intentions,which encourages states to move children to permanency more quickly. One of the unfor-tunate results of this has been children, especially older children, who have no family. Thesechildren’s parents have had their parental rights terminated and the state has been unable tofind new families for them. The timelines for permanency have also created problems whenthere are limited resources and parents are unable to enroll in drug treatment programs ina timely manner. The time a child spends in foster care is usually excessive. States dosometimes fail to make reasonable efforts to return the child home or to hire enough agencyand attorney staff to keep up on what needs to be done for parents and children in thesystem. At the same time, children’s advocates should be mindful of the importance ofparents to their clients’ lives, health, and development. When parents do not or will notspeak for children or the laws in the state do not clearly define who the parent is or whenstates do not do enough to keep a family together, children need advocates to help themexpress their needs.

In the seventh chapter, Guggenheim discusses the unique aspects of the laws that governthe minors’ rights to an abortion. He goes over the development of the case law, the con-nections to the right of privacy, and how the limitations on parental notification were duemore to public health concerns than to the idea that children have privacy rights. This is anarea where he feels that courts have made the policy and effectively tied the hands oflegislatures and parents to change that policy. He looks at the public health issues that haveso far managed to trump the idea of parental rights. He points out that the compromisesolutions that various combinations of justices have reached are more examples of howadults invoke children’s rights to accomplish their own agendas.

In the final chapter, Guggenheim returns to a general discussion of the children’s rightsmovement and how much of an impact the movement has had on family law and juvenilejustice issues. Where one group’s rights are extended, often a commensurate amount ofrights are limited in another group. There is also a rise in the level of responsibilities thatgoes along with the development of rights. Children are now treated in many ways as littleadults and Guggenheim thinks this is wrong and perhaps dangerous for children, especiallyin the area of juvenile justice. In this as well as in the other areas already discussed, he finds

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that children are best served by restricting the supervision of the state over theiractions.

Throughout the book Guggenheim effectively dissects the problems with the nebulousbest interests standard and the problems with state interference into areas of former parentalcontrol. He shows that the best interests standard is an imprecise method of determiningwhat is right for children, and also that the state needs some way in which to intervene whenparents are not agreeing or are acting in ways that are harmful to children. He finds it essen-tial that children be able to depend on the most important decisions in their lives beingmade by the people who care for them and know them best. Traditionally the people whoknow and care for children the best have been their parents. This echoes the sentiments ofthe early Supreme Court decisions on parental rights. He thinks that the boundaries thatlimit state intervention into families have eroded, due at least in part to the actions ofadvocates for children. However, Guggenheim leaves many unanswered questions. Forexample: when is it appropriate for the state to step in to a family? Should parties who arenot natural parents, but who otherwise know and care for a child, be allowed to make deci-sions for the child? What standard should the court use to make decisions if the best interestsstandard is not appropriate?

Guggenheim places much of the blame for the current problems between the state andparents and the extensive litigation on these questions on the children’s rights movement.He has an obvious distrust of the motives of the courts and lawyers who practice in the areaof children’s rights. Some of the fault lies with parental rights advocates. These advocateshave failed to effectively communicate what the fundamental rights of parents are, whoholds them, and have failed to articulate the boundaries and overlap between children’s rightsand parental rights. If there were clearly defined and uniform standards that dictated whois a parent, who, if anyone, other than a natural parent has rights to a continuing relationshipwith a child, when children should have advocates and when they should not, as well aswhat advocates are empowered to do on behalf of their clients, there would be less roomfor intervention by the state, manipulation by parents and others, and general inconsist-encies in decision making by courts at all levels.

The parable of the babies in the stream

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is analogous both to the book and to the fieldof children’s rights. The book calls attention to what is going on upstream and the fact thatsociety and even the supposed experts in the field are not doing the right things to keepchildren out of the litigation stream. For the children who do end up in the stream, despitepreventative measures, Guggenheim suggests that protocols and standards should definebest interests and create consistency. This will help to keep the children at home and, if not,to quickly return them to their family or move them to another permanent placement. A limi-tation of both the book and the system is that while Guggenheim has thoroughly examined andanalyzed the quagmire of the legal system, he does not acknowledge the others who are alsorushing upstream to keep the children out of the water, nor the important contributions ofthose who are working at various points in the stream to keep children comfortable and safeand to prevent them from being swept further downstream. The legal system, by not allo-cating resources to the upstream problems also fails to address a large part of the problem.

As Guggenheim says in the book, no one wants to be known as being against children’srights.

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He shows that far from being against children rights, he is against the improper useof the rhetoric, especially when adults use it for their own gain. Instead of wholeheartedlysupporting whatever is done in the name of children’s rights, or condemning it because itbenefited parents as well as children, he illustrates that it is critical to keep in mind what isupstream and downstream for children and their parents.

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NOTES

1. See page 13.2. See page 14.3. See Chapter 6, endnote 1.4. See page 23.5. 268 U.S. 510.6. 321 U.S. 155.7. See page 26, citing

Pierce

, 268 U.S. at 535.8.

Prince

, 321 U.S. at 166. It should be noted that the language in these quotes made so long ago, in a timewhen it would have been unfathomable for many of the justices to predict the many different types of familiesthat exist in 2006, could have been referring to nonparents who have stepped in to care for and nurture childrenwhen the biological parents cannot or will not take the responsibility. If the main concern of the court was forindividuals instead of the state or general society, to be responsible for the upbringing of children, a modern dayinterpretation could allow for the possibility that other adults who have formed a nurturing relationship with thechild, not the state, should have the right to intervene in these cases to protect the child and to protect the abilityof this other adult to continue to care and nurture the child. Guggenheim does not make this argument.

9. See page 38.10. See page 39.11. See page 41.12. See page 91.13. Jones v. Jones, PICS Case No. 05-1564 (Pa. Super. Sept. 30, 2005).14. In

Denise B. v. Beatrice R

., a Suffolk County, NY family court found that unless the individual seekingvisitation is either a biological or adoptive parent, that individual lacks standing to seek visitation. The court alsostated that “Were the Court to be solely concerned (as, perhaps, it should be) with Bryce’s best interests and themaintenance of essential, nurturing relationships in this young child’s life, petitioner would be entitled to a hearing.”September 19, 2005.

15. See Chapter 6, endnote 1.16. See Preface, xiii.