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Article

Abstract

In criminal and delinquency proceedings against juveniles, who determines how much or how little a child’s parents participate in the case? This has much to do with the parental inclinations, of course, but the legal answer regarding the parental authority to participate resides in two distinct but related areas of law. Part of the answer to this question comes from In re Gault, in which the Supreme Court held that minors in delinquency proceedings are guaranteed certain constitutional safeguards. This means, for instance, that children have the right to counsel. It also implies—as most scholars have since argued—that children have the right to expect their lawyers to act as their agents and to follow their directions without regard to parental directives. Another part of the answer comes from a line of cases starting with Meyer v. Nebraska and Pierce v. Society of Sisters, which held that parents have broad constitutional rights to raise and make decisions regarding their children. Whatever the doctrinal merits of these two separate threads of case law, they fail to provide a coherent vision of parental involvement or the rights of parents in the juvenile justice process.

Gault’s failure to account for the then well-established line of cases of Meyer and Pierce, has led to a juvenile court system in which parents have no decisionmaking authority over the juvenile delinquency process. Yet, the reality is that parents do participate in the juvenile court process. In this Article, I consider the parental role that parents and guardians play in their children’s legal cases and ask whether the exclusion of parents from decision making is doctrinally and normatively sound. In considering the doctrinal question, I compare the parental role in other legal contexts and examine the applicability of the rules that courts employ to determine parental exclusion. In assessing the normative question, I weigh the existing research on the impact of parental involvement, when it occurs, to determine if parental participation yields results that are in the minor’s best interest.

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