Document Type

Article

Abstract

Although children have been considered central to family law for some time, the discussion of children's rights is still controversial and the methodology for advocating on behalf of children contested Modern accounts of how to best uphold the interests of children are based on one of three models. Parents are either designated the fiduciaries best positioned to protect the interests of children, or the state is deemed responsible for intervening to protect the rights of children, or theorists and lawmakers look to decipher children's own voices and perspectives in order to develop child-centered advocacy. These three perspectives often stand in opposition to each other and result in children's rights being articulated in the midst of struggle and dissonance. The best interests standard most often relied upon to protect children's interests is amorphous and subject to internal conflict and manipulation. Moreover, it is based on competing interests and factors and subject to differing perspectives based on the three models for how to best protect children. In this Article, I argue that none of the three models do enough to advance children's advocacy. Instead I argue for a children's rights perspective that focuses on what children need most-relationships. Leaning on empirical and psychological studies, I argue that these relationships bring children to maturity, provide them with the care upon which they depend, and provide the context through which their rights should be viewed In order to keep relationships central to the legal treatment of children, I advocate for the theoretical shiftfrom an individualist account of rights to a relational account of rights and interests of children. In advancing this relational approach, I propose three guiding principles to reshape family law in a manner that focuses on supporting children's relationships. First, I argue that while family law currently serves children only upon the breakdown of care relationships, in reality, relationships need ongoing support much earlier. Social welfare programs as well as emotional, educational, and financial support should be directed at supporting relationships, particularly at-risk relationships, to prevent crises. Second, I describe how children have a variety of relationships upon which they depend A variety of significant relationships should be recognized to coexist alongside each other in a differentiated manner that considers the relative harm and benefits from relationships and their disruption. Third, I argue that effectuating children's civil rights and the propriety of state interference with parental discretion needs to be examined within the context of ongoing relationships. When state interference with parents to protect the rights of children harms significant care relationships, the state must tread cautiously. However, when significant care relationships are not threatened, the civil rights of individual children can be more readily realized

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