Fearing the Bogeyman: How the Legal System's Overreaction to Perceived Danger Threatens Families and Children
In the last generation, American parenting norms have shifted dramatically, reflecting a near obsession with child safety and especially the risk of stranger abduction. A growing body of literature shows, however, that the threats to children are more imagined than real, and that the effort to protect children from these “bogeymen” may be doing more harm than good. Advocates of “Free-Range” parenting argue that giving children a long leash can help them learn responsibility, explore the world outside, get physical exercise, and develop self-sufficiency. But the State, usually acting through Child Protective Services (CPS), is likely to second-guess parents’ judgments on such issues, and enforce the overprotective and arguably harmful norms. Researchers and policymakers agree that CPS intervenes in far too many cases, traumatizing families by “removing” children and being slow to reunite such families even after a removal is found to have been unwarranted. Indeed, a child who is not being maltreated at home is far more likely—by multiple orders of magnitude—to be seized by CPS than by a kidnapper. Thus CPS, in the name of child safety, becomes the bogeyman, the child-snatcher parents should fear.
The problems are traceable to the vague statutes—starting with the Child Abuse Prevention and Treatment Act of 1974—that fail to accommodate the risk-management decisions parents must routinely make or to respect parental discretion. In effect, these statutes give CPS broad power to intervene in families that eschew the overprotection craze, and deny Free Range parents the latitude to trust their own parenting instincts, or to defend their families from government intrusion. Moreover, CPS faces strong incentives to make removal and foster care a remedy of first resort even when it is unclear that a child is endangered at all.
The statutes should be redrafted in a way that (1) recognizes parenting as an exercise in risk management, using a “grossly disproportionate” standard for risk assessments, and (2) protects parents’ discretion in making those judgment calls by employing an “abuse of discretion” standard for interventions. At the same time CPS’s incentives should be restructured to discourage unwarranted interventions and to enable caseworkers to devote energies and resources to keeping children safe within their own families, rather than coercing conformity by threatening removal. Until such changes are made, Free Range parents, and all parents, will be intimidated into adhering to these stifling, overprotective norms, to the detriment of society, of families, and of the children themselves.
David Pimentel, Fearing the Bogeyman: How the Legal System's Overreaction to Perceived Danger Threatens Families and Children, 42 Pepp. L. Rev. ___ (2014-15).