Document Type

Article

Disciplines

International Law

Abstract

This Comment looks at the haunting notion of children as property. The main objective of this Comment is to identify the origin of this notion and illustrate its misplacement in today's society. This Comment compares the existing "biological bias" that has evolved from the "child as property" notion in the United States with the progressive shift away from these ideas in Canada. Part I of this Comment describes the history of children's rights and child custody before the nineteenth century. Part II then discusses the history of childhood in America, specifically, the origin of the child as property and biological bias concepts. It will look at the standards the courts use in deciding among the rights of the biological parents, the rights of the psychological parents, and the rights of the child. The section ends with a look at two of the most highly publicized biological parents versus third-party custody cases in the United States.

Part III looks across the border to similar cases that have arisen in Canada. This section traces the progression of the court's rationale in deciding biological parents versus third-party custody disputes and the development of the "child as person" ideal. Analysis of these cases demonstrates that the psychological testimony regarding child bonding was a major factor in the progression of Canadian law regarding children. Part IV then asks the question: what can the United States learn from its northern neighbor, and how can it move away from the "child as property" mentality? In conclusion, this Comment argues that the United States has clung too long to a backward notion which has been dispelled convincingly in Canada. Adopting the Canadian legal standard is one step toward recognizing children as persons.

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