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Protecting the Free-Range Kid: Recalibrating Parents’ Rights and the Best Interest of the Child
Cardozo L. Rev. (2016)
  • David Pimentel
Abstract
The legal system has been drawn into the ongoing debate about what constitutes responsible parenting in a world increasingly obsessed with child safety. While statistics show that children are dramatically safer today than ever before, media and popular paranoia about child safety is prompting parents to err on the side of overprotection. The “Free Range Kids” movement has pushed back against the new intensive parenting, arguing that it stifles kids’ development, and that the precautions taken against exaggerated and even illusory dangers is doing more harm than good. Others may pursue “long-leash” parenting practices because of cultural values derived from their ethnic or religious heritage or, particularly for single parents battling poverty, because they simply lack the resources to helicopter their children. These parents who resist the hyper-parenting trend are, however, running afoul of the legal system. Recent news items include numerous examples of parents arrested—or otherwise subjected to state intervention through states’ Child Protective Services agencies—for allowing their children to play in neighborhood parks, or to walk to or from school, or stay home alone, without continuous adult supervision. Disruption of the family in this way not only harms children, the very children the state is purporting to protect, it violates, in many cases, the family’s fundamental liberty interests under the Fourteenth Amendment. Although the oft-cited “best interest of the child” standard has no legal application to interventions like those cited above, it appears that state authorities are applying such a principle de facto to justify their actions, effectively second-guessing parenting decisions.

Parents caught in this nightmare usually cooperate quickly, apologize profusely, and promise it won’t happen again—effectively waiving their parental rights in the raising of their children—in a desperate effort to avoid having their children taken away from them. Parents who wish to raise their children with longer leashes, for whatever reason, are effectively chilled in the exercise of their right to do so. Lost in that process are the constitutional rights of parents: their fundamental liberty interest in raising their children as they see fit.

The alternative, more consistent with American constitutional values, is to strengthen and safeguard the family from external second-guessing. Enforcement of Fourteenth Amendment protections should be sufficient to do this, as any action by the state in derogation of a parent’s rights should be subjected to strict scrutiny, and struck down unless it is the “least restrictive means” of protecting that child from genuine harm. But it may also be helpful to think in terms of a “parental judgment rule,” modeled on the law of fiduciaries, to safeguard parental discretion. Finally, states need to provide parents with legal counsel, and to advise them of this right, early in the proceedings. Without a clear articulation of these rights, and an attorney to help assert them, the parents’ constitutional rights will remain unasserted, unadjudicated, and unrecognized. Lost in that process as well is the benefit—both to the children themselves and to society as a whole—that comes from respecting parental dignity and family integrity.
Keywords
  • parents' rights,
  • free range kid,
  • strict scrutiny,
  • child protection
Publication Date
2016
Citation Information
David Pimentel, Protecting the Free-Range Kid: Recalibrating Parents’ Rights and the Best Interest of the Child, 38 CARDOZO L. REV. 1 (2016)