In response to this uncertainty, and in an effort to bring clarity and coherence to this area of legal regulation, the American Law Institute (ALI) launched a new project in 2015: the Restatement of Law, Children and the Law1 . . . . (hereinafter Restatement of Children and the Law) or Restatement). This project, which is ongoing, offers comprehensive coverage of the legal regulation of children.2 The Restatement is organized in four parts: Children in Families, Children in Schools, Children in the Justice System, and Children in Society.3 In fulfilling its ambitious goals, the Restatement has uncovered an emerging but coherent framework that shapes and integrates doctrine across this broad legal domain. As we explain in this Essay, the Restatement clarifies that regulation of children and families is not incoherent: Lawmakers in the twenty-first century increasingly are guided by a core principle and goal—the promotion of child well-being.4
Three features, all highlighted in the Restatement, distinguish what we call the Child Wellbeing framework from the approach of the earlier Progressive Era, to which it bears superficial similarity. First, modern law is increasingly based on behavioral and biological research on child and adolescent development, together with growing empirical evidence about the effectiveness of policy interventions.5 This body of knowledge, woven into the Restatement, makes it possible to advance child well-being with greater sophistication and effect. Second, lawmakers and the public have begun to recognize that policies promoting child well-being align with social welfare, strengthening and broadening support for contemporary regulation. Again, the Restatement commentary highlights this convergence. And third, modern lawmakers recognize, and have begun tentatively to remediate, the embedded racial and class biases that have long permeated the regulation of children and families. The Restatement commentary acknowledges these deep-seated biases and supports recent legal responses aimed at mitigating the harms they cause.
These dimensions of the Child Wellbeing framework are most evident in the broad reforms of juvenile justice regulation undertaken by twenty-first century courts and legislatures. Across a broad range of issues, lawmakers have embraced the principle that “children are different,” announced by the Supreme Court in recent Eighth Amendment and Fourteenth Amendment opinions prohibiting the harshest sentences for juveniles.6 Many modern lawmakers have rejected the punitive reforms of the 1990s that were motivated in part by racist fears, instead deploying developmental science to formulate doctrines and policies grounded in rehabilitation.7 These legal reforms acknowledge the vulnerabilities of youth in the justice system, as well as their reduced culpability and unique correctional needs as maturing adolescents.8 This developmental approach, which aims to promote the well-being of youths and address racial bias, has gained public and political support, in part because it has produced substantial social welfare benefits, reducing recidivism and promoting the transition of young offenders to productive adulthood.9 The Restatement captures this empirically based trend on issues as wide-ranging as interrogation, competence to stand trial, delinquency dispositions, transfer to criminal court, and conditions of confinement in detention and correctional facilities.10
Identifying the core elements of the Child Wellbeing framework—reliance on science, recognition of social welfare benefits, and acknowledgment of systemic racism—also provides coherence to the allocation of legal authority over children in American law. This allocation was often described by twentieth-century scholars as a zero-sum competition among the parents, the state, and children themselves for control over children’s lives.11 Instead, the Child Wellbeing framework clarifies that legal regulation across doctrinal domains is grounded in the overriding goal of promoting child well-being. In this framework, both the regime of strong parental rights and the opaque pattern of children’s rights can be rationalized and integrated into a unified regime—one that is grounded in developmental research and, for the most part, serves to promote social welfare and mitigate racial bias.
A child-well-being rationale for parental rights is not always intuitive but is a critical justification for the continued vitality of this doctrine. Extensive research indicates that a stable parent-child relationship is essential to healthy child development.12 Strong parental rights protect this bond. Parental rights also serve a protective function for families of color and poor families, who are subject historically, and still today, to overzealous state intervention.13 But the modern rationale supporting strong parental rights is also self-limiting. Parents are not free to inflict harm on their child, even on the basis of their religious beliefs.14
Beyond parental rights, the Child Wellbeing framework supplies the underlying logic to children’s rights. The framework demonstrates that the goal of promoting child well-being generally explains the pattern in which the law grants some adult rights and privileges to minors but withholds others. It becomes clear that extending some rights and privileges to very young children (such as operating motor vehicles) would threaten their well-being while withholding some adult rights can threaten serious harm to older minors. For example, denying minors the right to make a private decision to obtain substance abuse treatment can harm their well-being; conferring this right mitigates the harm. In deciding to grant or withhold rights and privileges, lawmakers often turn to developmental research to determine whether youth welfare is likely to be promoted or undermined by the right in question.
In this Essay, we explore these themes, explaining how the Restatement of Children and the Law both identifies and reinforces these beneficial trends in the law.
I. The Restatement and Juvenile Justice
The contemporary regulation of juvenile crime represents the clearest embodiment of the Child Wellbeing framework. As this part explains, law and policy in this area increasingly are grounded in the developmental science of adolescence and are premised on the empirically based recognition that youth involved in the justice system, due to their developmental immaturity, are fundamentally different from adults—different in their culpability for their crimes, in their ability to navigate the justice system, and in their response to correctional settings.15 This body of knowledge has supported regulation that promotes youth welfare while also reducing the social cost of juvenile crime, contributing to lower recidivism rates and enhancing the prospect that delinquent youth can transition into productive adults. The Child Wellbeing framework is also at work in the growing awareness that systemic racism has long pervaded the justice system.16
More specifically, this framework has influenced broad policy reforms under which correctional institutions have been closed and resources shifted to evidence-based community correctional programs. The framework has also shaped doctrinal reforms as courts and legislatures have incorporated developmental knowledge into laws regulating the justice system’s interaction with youth. The Restatement embodies this approach, adopting modern courts’ reliance on developmental science for issues such as interrogation of minors, adjudicative competence, consent to search, waiver of counsel, delinquency dispositions, state duties in juvenile detention and correctional facilities, and transfer to criminal court.17
A. Background: Three Waves of Juvenile Justice Reform
To understand the current period of reform, a bit of historic background is useful. Youth crime regulation has undergone several periods of dramatic legal reform since the juvenile justice system was established in the late nineteenth and early twentieth centuries. The traditional juvenile court, which was supported by Progressive Era reformers, embodied the principle that delinquent youth were very different from adult criminals; the state’s purpose in responding to youth crime was not punishment, but correction and rehabilitation under its parens patriae authority.18
This model came under increasing pressure in the second half of the twentieth century, culminating in its near collapse in the 1980s and 1990s. Critics attacked the model’s core premise—that the sole purpose of the juvenile court was to promote the interests of delinquent youth; skeptics pointed to high recidivism rates in young offenders to argue that rehabilitation was a failure.19 Harsh criticism by conservatives and public outrage at violent juvenile crime led to a wave of punitive law reform aimed at protecting the public from young “superpredators,” assumed to be youth of color.20 In what can fairly be termed a moral panic, politicians and the public seemed to reject the premise that young offenders were different from adults.21 Across the country, more juveniles were subject to prosecution and punishment as adults for a broader range of crimes, and youth in the juvenile system were subject to harsher sanctions.22
The twenty-first century has seen another wave of law reform, one that is a powerful repudiation of the punitive law reforms in the 1980s and 1990s.23 The catalysts for this trend are complex.24 Youth crime rates declined, creating a climate that was more benign to young offenders; moreover, observers pointed to the offensive racist underpinnings of the moral panic of the 1990s.25 Also, the 2008 recession highlighted the high cost of incarceration-based policies, which diverted state funds from education and other services.26 Just as important was growing evidence that punitive policies were ineffective in reducing recidivism, their main goal; youths sent to institutions were far more likely to re-offend than those who remained in the community and participated in effective evidence-based community programs.27
Finally, a key catalyst for reform was the Supreme Court. In a series of opinions, beginning in 2005, the Supreme Court underscored the theme that young offenders are different from their adult counterparts and that lawmakers should attend to these differences.28 These opinions had a far-reaching effect on justice system reforms. Our nation’s highest court announced forcefully that “children are different,”29 offering a radically different view of teenage offenders from the dominant theme in the 1990s.30
At a superficial level, the contemporary reform movement might appear to be a revival of the rehabilitative model of the traditional juvenile court. Like the Progressive Era reformers,31 lawmakers today recognize that important differences distinguish youth in the justice system from adult counterparts.32 Further, a core purpose of contemporary regulation is to rehabilitate young offenders and promote their healthy development to adulthood.33 It is legitimate to ask whether the new wave of reform is a nostalgic revival of the Progressive Era ideal that continues to be widely endorsed but that proved fragile as a governing principle of regulation.34
B. The Building Blocks of Contemporary Reform
Close inspection clarifies that several key features distinguish contemporary regulation from its predecessor, providing good reasons to believe that the twenty-first-century regime, grounded in the Child Wellbeing framework, is built on a more stable foundation than the traditional rehabilitative model. First, reforms enacted in the Child Wellbeing framework draw on a large body of scientific research on adolescent development, unavailable in earlier times, that enables regulation more responsive to the capacities, vulnerabilities, and needs of young offenders.35 Moreover, this scientifically driven youth justice policy advances social welfare as well as youth welfare. The broad appeal of the recent reforms is due in part to substantial evidence that developmentally based policies protect public safety more effectively than the harsh policies of the 1990s, reducing crime rates at a lower cost.36 Finally, reducing racial bias in the system has become an important goal, offering the potential to enhance legitimacy and fairness to youth of color.37
The key role of developmental research in the recent reform movement cannot be overstated. The Supreme Court highlighted research on adolescence in its Eighth Amendment juvenile sentencing opinions in support of its holding that imposing certain harsh sentences on juveniles violates the Eighth Amendment prohibition of cruel and unusual punishment.38 Drawing on behavioral and neuroscience studies, the Court held that the challenged sentences violated the principle of proportionality and were unconstitutional because juvenile offenders as adolescents were less culpable than adults.39 The Court also explained that juveniles were more likely to reform than adult offenders and that the prohibited sentences foreclosed their opportunity to do so.40 Finally, the Court observed that youthful inability to navigate the justice system may have contributed to the harsh sentences.41 Following the Court’s lead, other courts and lawmakers have relied on research on adolescence in constructing regimes that recognize the role of developmental factors in teenage criminal activity, attend to the vulnerabilities of youth in the justice system, and support their healthy development.42
The substantial body of research on adolescence has influenced law and policy in several ways. First, neuroscience studies have clarified important differences between adolescent and adult brain structure and functioning that are relevant to engagement in criminal activity.43 These studies show that aspects of adolescent brain development contribute to sensation-seeking, poor impulse control, heightened sensitivity to peers, and other responses, shedding light on the sources of adolescents’ inclination to engage in risky activities, including criminal activities.44 Lawmakers have recognized that these developmental influences mitigate the culpability of juveniles. Some states have expanded the Supreme Court’s restrictions on the harsh sentencing of juveniles, directing that when young offenders are prosecuted as adults (as opposed to in the juvenile justice system), they should generally be subject to more lenient approaches to sentencing than their adult counterparts.45 Further, because much juvenile crime is a product of immaturity driven by developmental factors, most youth can be expected to mature into noncriminal adults unless the justice system undermines their ability to do so.46
Another body of research has reinforced the importance of correctional responses that facilitate maturation to productive adulthood. Researchers on adolescent social development have found that maturation is a process of reciprocal interaction between the individual and her social context.47 A healthy social context provides the conditions for attaining skills and capacities important to successful adult functioning.48 But, of course, a youth’s social context can also undermine healthy development.49 For young offenders, correctional facilities and programs may constitute their social context. One key lesson that has driven important reform is that large prisonlike institutions are toxic developmental settings.50 Courts have approved remedial orders to address conditions and disciplinary practices in these institutions—and states have shifted resources to smaller facilities and community programs that are far more effective at accomplishing the justice system’s rehabilitative and crime-reduction goals.51
Finally, research on factors that influence adolescent decision-making has played a key role in doctrinal reforms that enhance procedural protections for youth in the justice system. Researchers have found that youth function less competently than adults in the system because they lack understanding of their rights, are more susceptible to making impulsive choices in stressful situations, and are more compliant with authority figures.52 Consistent with this research, some states require special protections for youth in the contexts of police interrogation.53 Also, the doctrine of adjudicative competence may include developmental incapacities as well as those associated with mental illness and cognitive deficiency.54 Moreover, in some states, lawmakers have recognized youthful incapacity for self-representation by mandating representation of counsel in delinquency proceedings.55
The developmental approach to juvenile justice has been heralded for its focus on the needs and vulnerabilities of youth in the justice system. But the prospect for long-term stability of this regulatory model is enhanced greatly by powerful evidence of its effectiveness. Contemporary reforms have generally enjoyed broad public and political support because they have proved to be more successful at crime reduction than earlier incarceration-based policies and more cost-effective as well.56 A substantial body of research supports that several well-tested community-based programs are as or more effective at reducing recidivism in young offenders than incarceration, at a fraction of the cost.57 On an historically divisive issue, observers and stakeholders across the political spectrum have endorsed the new wave of juvenile justice reform.58
C. The Restatement, the Child Wellbeing Framework, and Juvenile Justice Reform
The new Restatement of Children and the Law follows the trend of courts embracing the Child Wellbeing framework. These courts emphasize the unique status of juveniles and the important differences between youth and adults, a theme that draws on the juvenile court’s historic rehabilitative purposes but that in contemporary law often relies on developmental knowledge. A restatement is based primarily on judicial (common law) rules and is aimed at courts, and thus it does not directly execute sweeping policy changes. But courts indirectly shape youth justice policy. Courts, for example, have enjoined states from practices in detention and correctional facilities that undermine healthy youth development; the Restatement sections on state duties in those facilities follow those courts.59 Moreover, several Restatement sections provide procedural protections that modern courts have required in response to youthful incapacity and vulnerability. This section will describe several Restatement sections that demonstrate the influence of the Child Wellbeing framework, including sections regulating search, interrogation, adjudicative competence, waiver of counsel, and conditions of detention and confinement.
To begin, the Restatement rules on search and seizure represent the modern trend reflected in the Child Wellbeing framework. When law enforcement officers seek to search a suspect without a warrant, the search is valid under the Fourth Amendment if the suspect gives voluntary consent.60 For minors, the Restatement rules emphasize the importance of factors associated with age and youthful immaturity in the determination of voluntariness.61 The Restatement underscores the greater vulnerability of children and adolescents to pressure from adult authority figures, a tendency that is particularly pronounced in youth of color.62 The Restatement also draws on developmental research to generally prohibit suspicion-less strip searches in detention and correctional facilities, as well as schools, following courts and other lawmakers that have recognized the extreme intrusiveness of these searches for adolescents, whose sensitivity to bodily privacy concerns is particularly acute.63
Restatement restrictions on the interrogation of minors by law enforcement also follow the modern trend of courts that have recognized the extreme vulnerability of youth in this context, by giving special weight to age in evaluating the validity of confessions. Children and youth have less comprehension of their Miranda rights compared to adults.64 Teenagers are also more inclined to comply with coercive police tactics; not surprisingly, minors give false confessions at a far higher rate than adults.65 Again, youth of color are particularly susceptible.66 The Restatement emphasizes this vulnerability, both in evaluating whether Miranda warnings must be given in an interview setting67 and in determining whether the youth’s waiver of rights was intelligent, knowing, and voluntary. Because younger minors are acutely vulnerable, the Restatement provides the special protection of requiring consultation with counsel before waiver for youth under 15.68
In the delinquency proceeding itself, two rules offer special protections to youth facing charges. First, consistent with restrictions on juvenile waivers of counsel in some states, the Restatement provides that a juvenile does not have a right to waive counsel and undertake self-representation in a juvenile delinquency proceeding, a right enjoyed by adult criminal defendants.69 Studies show that many youth in juvenile court waive counsel to their detriment.70 The Restatement rule recognizes that the well-being of a youth facing a possible deprivation of liberty is almost never advanced by self-representation. Adolescents, due to immaturity, know less about the legal process than adults and are simply less competent than adults at defending themselves. Under the Restatement rule, a court can permit the youth to undertake self-representation in limited circumstances, but the youth has no right to make this choice.71 The Restatement also recognizes a relatively new basis for adjudicative incompetence in criminal proceedings, based solely on developmental immaturity.72 Historically, a court’s finding that a defendant is incompetent has been based on cognitive disability or mental illness; the Restatement follows courts that have recognized that a youth may be incompetent to understand the proceedings or assist counsel solely on the basis of developmental immaturity.73
Finally, Restatement rules regulating conditions of confinement for youth in juvenile correctional facilities pursuant to delinquency dispositions are solidly grounded in research on adolescent development. The Restatement follows a recent trend in which numerous courts have recognized or approved settlements of constitutional and statutory claims by confined youth, challenging lack of services, harsh discipline, and unsafe conditions.74 Because of the unique attributes of youth and the juvenile system’s rehabilitative purposes, the state’s duties to youth in confinement exceed the state’s duties to adults. Consistent with emerging doctrine, the Restatement recognizes state duties to provide educational, medical, and mental health services to youth in detention and correctional facilities and to provide a safe, healthy environment.75 Furthermore, the Restatement prohibits excessive discipline in juvenile correctional facilities and the use of solitary confinement for the purposes of punishment.76 Courts have cited research describing the particular harm of solitary confinement for adolescents, due to the extreme sensitivity to social context during this developmental stage, and many states have restricted the use of juvenile solitary confinement.77 The large body of research on the critical importance of social context during adolescence supports policies recognizing that the healthy transition to adult life for confined youth depends on whether youth receive adequate educational and mental health services and are guided by constructive, not harsh, discipline. The Restatement rules aim to further both youth well-being and social welfare by providing a social setting that makes this transition more likely. In doing so, it reduces crime and its attendant social costs.
In sum, the Restatement is shaped by the developmental model of juvenile justice that is emerging in the twenty-first century. Policies that are responsive to adolescent capacities, needs, and vulnerabilities have proved far more effective at reducing youth crime than the incarceration-based policies of the 1990s—and at a lower cost. Not surprisingly, this approach enjoys greater support than the rehabilitative model of an earlier time, which failed to protect public safety.78 Finally, modern lawmakers acknowledge the historic racism that defined the juvenile justice system and are working to increase legitimacy and fairness, even as there remains much more work to do on this front.79 The convergence of youth well-being and social welfare, and a consciousness of systemic racism, promises to provide a robust foundation for a regime aimed at advancing youth welfare.
II. The Restatement and Parental Rights
The three elements of the Child Wellbeing framework—reliance on science, recognition of social welfare benefits, and acknowledgment of systemic racism—help explain and justify the continued vitality of parental rights. Modern doctrine reflects an understanding that deference to parental decision-making typically furthers child well-being, serves society’s interests, and provides an important shield against state intervention for low-income families and families of color. This rationale for strong parental rights, which rests on considerable empirical evidence about the importance of stability in the parent-child relationship, reinforces the traditional libertarian justification for parental rights, but it also supplies a self-limiting principle for parental rights that is missing in the libertarian justification: in the Child Wellbeing framework, parental rights do not permit a parent to inflict serious harm on a child or create a substantial risk of such harm.
A. Interpreting Parental Rights in the Child Wellbeing Framework
In recognizing a constitutional right of parents to make decisions for their children, the Supreme Court in the 1920s grounded the doctrine in the rights of individuals in a liberal society to privacy and freedom from undue state interference.80 These principles continue to support parental rights. Protection of family privacy and of parental freedom to make childrearing choices are as important today as they were a century ago. But these traditional justifications cannot fully explain the continued robustness of these rights, nor do they supply a limit to parental authority.81
The Child Wellbeing framework fills this gap. Analysis of modern parental rights doctrine in the framework underscores the importance of child well-being as a reinforcing rationale for the law’s continued deference to parental authority as well as a self-limiting mechanism for these rights.82
As a preliminary matter, it is important to remember that children, particularly younger children, are often incapable of making decisions on their own behalf about health care, education, and other critical matters.83 Thus, a surrogate decision-maker will be required—and that surrogate will be either the child’s parents or a state actor. If parents’ authority is withdrawn or seriously restricted, the state necessarily will have a larger role regulating families than under current law.84 Appreciating that children typically need a surrogate decision-maker, the question facing lawmakers is whether the promotion of child well-being is better served by deferring to parental decision-making or expanding the state’s role.85
The Child Wellbeing framework emphasizes two important reasons why parental rights usually promote child well-being and expanding state authority does not. First, deference to parental authority protects the stability of the parent-child relationship. Based on a large body of research, it is clear that a strong, stable parent-child relationship is critical for healthy child development,86 and the disruption and destabilization of this relationship threatens serious harm to the child.87 A regime of robust parental rights restricts state intervention in the family and thus reduces the child’s exposure to the accompanying risks, particularly removal of the child from the home.88 Protection from state intervention is especially important for children of color, in light of racial disproportionality and disparities in the child welfare system.89
Second, deference to parental decision-making also promotes child well-being because parents are generally better positioned than state actors, such as judges, social workers, or other third parties, to understand their child’s needs and make decisions that will further that child’s interests. This advantage is rooted in the parent’s superior knowledge of and association with the child as compared with outsiders to the family.
In addition to promoting child well-being, robust protection of parental rights also advances society’s interests. In a country in which family-state relations are governed by libertarian principles, parents are burdened with the weighty responsibility of raising the next generation of citizens. Having placed this burden on parents, who receive only limited support from the state, society has an interest in ensuring that parents discharge their obligations adequately. Strong protection of parental rights shows respect for and deference to parents for the important job they undertake, reinforcing parental commitment to the duties of parenthood.
Finally, unlike the traditional justification of parental autonomy from the state, the child-well-being rationale for parental rights provides a self-limiting mechanism. With child well-being as the polestar, the framework clarifies that parents are not free to inflict serious harm on their children or to create a substantial risk of such harm. Such actions do not further child well-being and thus are not protected under this rationale for parental authority. When a parent’s action seriously threatens the child’s welfare, state intervention overriding parental authority is justified. This is true even if the parent’s decision is motivated by deeply held values or religious beliefs.
B. Parental Rights Under the Restatement
Three doctrinal examples—all addressed in the Restatement of Children and the Law—illustrate the Child Wellbeing framework. Although lawmakers do not always explicitly invoke a child’s well-being rationale for parental rights, current doctrine is compatible with the framework, providing a normatively appealing contemporary justification.
1. Corporal Punishment
The law has long recognized a parental privilege to use reasonable corporal punishment as a form of discipline, but the justification rested on deference to parental rights, together with the notion that physical punishment benefited the child.90 By contrast, the modern privilege, which applies in both criminal and civil proceedings, does not endorse corporal punishment as beneficial to children and instead is justified as a limit on state power in light of the dangers that accompany state intervention.91 Further, the modern privilege is tailored to the form of state action (criminal or civil/child protective), reflecting the trade-off between protecting children from harm inflicted by parents and protecting children from harm inflicted by state intervention.92 As set forth in the Restatement of Children and the Law, in the criminal context, a parent’s use of corporal punishment is not privileged if the punishment inflicts (or creates a substantial risk of inflicting) “serious physical harm or gross degradation” on the child.93 In the child-protection context, a parent’s use of corporal punishment is not privileged if the punishment inflicts (or creates a substantial risk of inflicting) “physical harm beyond minor pain or transient marks.”94
Although it may seem counterintuitive, we contend that the Child Wellbeing framework supports the privilege, primarily because the privilege places a critical constraint on state intervention. Without the privilege, the state could initiate either a criminal prosecution or a child protection petition whenever a parent used physical punishment, bringing the full force of the state to bear on the family and potentially resulting in the incarceration of a parent or the placement of the child in foster care—both serious disruptions to the core parent-child relationship. By maintaining the privilege and tailoring its reach to the form of state action, the privilege promotes the child’s interest in the stability of the parent-child relationship and shields the child from the risks that accompany unnecessary state intervention. By contrast, abolishing the privilege would greatly expand state power, posing a threat to all families but particularly those who are already subject to excessive state intervention.95 Finally, the framework’s formulation clarifies that the privilege does not give parents a license to use harsh physical punishment, and it also restricts the state from intervening when parenting may be suboptimal but not seriously harmful. This formulation thus exemplifies the Child Wellbeing framework’s self-limiting constraint on parental rights.96
Maintaining the privilege on child-well-being grounds does not represent an endorsement of corporal punishment. To promote a no-hitting norm, the state can use noncoercive methods such as public education programs and parenting programs that teach parents alternative methods of discipline.97 But the framework highlights the risks of prohibiting corporal punishment through coercive intervention.
2. Third-Party Contact and De Facto Parents
The law governing third-party contact and de facto parents provides another example of the Child Wellbeing framework. At common law, a parent generally had an absolute right to control a child’s associations.98 Today, two kinds of petitioners may seek a court order requiring a parent to allow contact between the plaintiff and the child: a third party (such as a grandparent or sibling) and a de facto parent (an individual who has functioned as a parent to the child). The law has developed in seemingly divergent ways to address claims by third parties and de facto parents, affording considerable deference to parents against claims by third parties and much less deference against claims by de facto parents. The Child Wellbeing framework clarifies that although lawmakers’ responses appear inconsistent, they are coherent and justified as promoting child well-being.
Beginning with third-party contact, every state grants standing to grandparents to file a petition seeking contact with a grandchild, and some states grant standing to other third parties.99 Lawmakers increasingly have adopted a standard that is highly deferential to parents, identifying only limited circumstances in which a court is authorized to override a parent’s decision about a child’s contact with a grandparent or other third parties.100 The Restatement of Children and the Law adopts a highly deferential standard.101
Analysis in the Child Wellbeing framework demonstrates that the deferential standard promotes a child’s well-being more effectively than the alternative standard applied in some states that allows courts to override the parent’s decision if contact is deemed to be in the child’s best interest.102 First, court-ordered contact with a third party overrides the decision of the adult who bears full child-rearing responsibility, with little reason to believe that the court will make a better decision. A parent is ordinarily better positioned than a judge to assess what third-party contact, if any, is best for the child. Further, allowing ongoing contact over the parent’s objection likely will strain the parent-child relationship, the stability of which is central to healthy child development. Separate from the substantive outcome, the deferential standard protects the child from the predictable stress of a protracted and high-conflict legal dispute. Finally, if the intrusion allows contact with a third party (who lacks any responsibility for the child’s care) over the parent’s objections, the parent may understandably feel resentment, potentially affecting the parent’s enthusiasm for fulfilling those obligations that society has imposed on her. Deference to parents is not absolute, however, and if the child will be seriously harmed by the lack of contact, a court can override the parent’s judgment.
By contrast, when a de facto parent seeks contact with a child, lawmakers increasingly recognize these claims,103 despite the costs imposed on legal parents; and the Restatement follows this approach.104 From the child’s perspective, the adult who has been acting as a parent is a parent. Allowing a legal parent to exclude a de facto parent would disrupt one of a child’s central relationships, which would create a risk of serious harm to the child.105 Moreover, unlike a third party seeking contact with the child over a parent’s objection, the de facto parent has fulfilled parental responsibilities and will do so in the future.106 Further, the recognition of de facto parents encourages individuals living with partner-parents to assume the significant responsibilities of raising a child, benefitting both children and society. Finally, the recognition of de facto parents is particularly important for children in families that do not fall into the traditional norm of two married parents.
In short, strong protection of parental rights in the third-party contact context and less deference to legal parents in the de facto parent context both further child well-being. These outcomes are wholly consistent: both rules draw on substantial research demonstrating the harm to children from disrupting core family relationships, and both allow state intervention only when the legal parent’s decision poses a substantial risk of serious harm to the child.
3. Decisions About Medical Care
The doctrine regulating parental authority to make medical decisions for children is a third example of how child well-being explains and justifies parental rights. At common law, parents had near complete authority to make medical decisions for children, including the right to decline medical treatment.107 By contrast, contemporary law—reflected in the Restatement of Children and the Law—defers to parental authority but limits that authority if the parent’s decision poses serious harm or a substantial risk of serious harm to the child or, in some instances, to public health.108
As with the other examples, the modern rule reflects the Child Wellbeing framework. Restricting the ability of the state to second-guess parents’ medical decisions protects children from the disruption of state intervention and allows parents, with their greater knowledge of their children’s needs, to make these decisions.109 The deference may enhance role satisfaction as parents undertake the substantial responsibilities of raising a child. And the protection from state intervention is particularly important for low-income families and families of color, who are at a heightened risk for state scrutiny and oversight.110
As in other decision-making contexts, parents do not have absolute authority to make decisions. Courts do not defer to parents if the decision to pursue or refuse treatment poses a substantial risk of serious harm to the child. For example, courts will order a blood transfusion over the parent’s objection when the treatment is necessary to prevent serious harm to the child, even when the parent’s decision is based on religious belief.111
Similarly, concerns about public health can limit a parent’s medical decision-making authority, particularly the decision whether to vaccinate a child against communicable diseases. Every state has adopted compulsory vaccination laws for school attendance,112 and the Supreme Court has long upheld state authority in this area.113 Although nearly every state has enacted a religious exemption to these requirements, and a significant minority have enacted philosophical exemptions,114 these exemptions may not apply if there is an epidemic and the refusal to vaccinate the child creates a substantial risk of serious harm to the public health.115 Moreover, in light of recent outbreaks of highly communicable diseases, particularly measles, some states have repealed their religious or philosophical exemptions—further evidence of the adoption of the Child Wellbeing framework.116
III. The Restatement and Children’s Rights
In general, American law withholds many rights and privileges from minors that adults enjoy, including the right to marry; the right to consent to most medical treatment, and to execute an enforceable contract and will; the right to vote; and the privilege to purchase alcohol and to operate motor vehicles. But since the 1960s, lawmakers have granted minors a range of adult rights, including the right of free expression in school; the right to make specific medical decisions, including reproductive health decisions; and many procedural rights in delinquency proceedings. Conventionally, these autonomy rights are understood as liberty interests that stand in competition with the authority of the state and the parent over children.117 But analyzed in the Child Wellbeing framework, it becomes clear that the seemingly paternalistic goal of promoting child well-being is important in the conferral of some rights on children and withholding of others. Lawmakers’ decisions about whether rights offer benefits that promote youth welfare increasingly draw on developmental research clarifying the capacities and incapacities of youth. Lawmakers also implicitly attend to social costs and benefits that follow from conferring or withholding rights.118
The framework informs the pattern of conferring rights under the Restatement of Children and the Law. The rights minors enjoy can be understood as promoting their well-being in contexts in which the traditional paternalistic approach would inflict harm on the minor and generate social costs as well.
A. Child Well-Being and Social Welfare
The general policy of withholding legal rights from minors is implicitly, and sometimes explicitly, explained on the basis of child well-being. It seems uncontroversial that children (particularly younger children) are sometimes incapable of self-interested exercise of rights and granting those rights would threaten harm to the child and others. Some level of maturity is necessary to drive a car safely or make a medical decision; thus, the law’s protective stance likely benefits children and society as well. When lawmakers confer rights on children, one of two interwoven rationales seems to be salient—both implicating child well-being. First, some rights directly enhance minors’ well-being. As children mature, the benefits of enjoying adult rights and privileges increase; not surprisingly, most rights and privileges conferred on minors are limited to adolescents, either expressly or implicitly. The well-being of older minors is enhanced by the privilege to operate motor vehicles and by the right of political expression, freedoms that would offer little benefit to younger children. Second, in some contexts, lawmakers recognize that the law’s paternalistic approach of categorically withholding rights from minors itself inflicts harm on children as they mature. For example, in extending procedural rights to youth in delinquency proceedings, the Supreme Court recognized that the absence of due process harmed the youth whose welfare the system aimed to protect.119
The pattern of withholding and granting rights to minors is also driven by social welfare concerns. Certainly, rights are not granted to minors if substantial social costs are anticipated. Withholding privileges that might lead immature minors to engage in risky activities—operating motor vehicles and obtaining alcohol, for example—advances social welfare and offers protection to minors themselves.120 And some rights that are granted to minors clearly promote social welfare as well as the well-being of the minor exercising the right. For example, many statutes authorize minors with substance abuse problems or sexually transmitted diseases to seek treatment independently; lawmakers recognize that serious social, as well as personal, costs are incurred if minors fail to obtain treatment for these conditions.121 Finally, some rights are defined in ways that benefit minors substantially with little social cost. Free speech rights in school benefit students, while also creating the social benefit of encouraging future voters to participate in civil political discourse.122 But granting the right has minimal social costs because speech that threatens the state’s ability to fulfill its educational function is not protected.123 In general, both child well-being and social welfare often play a key role in defining and limiting children’s rights.
B. Developmental Research and Children’s Rights
Because the maturity of minors is an important consideration in granting, withholding, and defining children’s rights, lawmakers recently have turned to developmental research to inform their decisions. Scientific knowledge provides a more sophisticated understanding of minors’ capacities and vulnerabilities than was available in earlier times. Today, our knowledge about maturation in adolescence allows for more informed judgments about when rights can promote minors’ well-being, when paternalistic restrictions inflict harm, and when restrictions actually offer protection to vulnerable minors in a regime that aims to promote their well-being.
Several examples show the growing importance of developmental research in this domain. Research on cognitive development has frequently been invoked to demonstrate that by mid-adolescence, teenagers are competent to make informed medical decisions and thus should be allowed to consent to certain treatments.124 This research has supported constitutional doctrine authorizing mature minors access to reproductive health treatment.125 Lawmakers have also turned to research in deciding what rights should be extended to youth in the justice system and when protections and restrictions that limit their rights are justified to protect their interests. Research on the vulnerability of adolescents, particularly youth of color, to adult authority figures has supported providing special protections in the search and interrogation contexts.126 Developmental research has also shed light on minors’ comprehension of criminal proceedings and capacity to make key decisions in that context, leading to protections that sometimes restrict the full exercise of rights.127 Laws reforming the requirements for adjudicative competence for juveniles and limiting rights’ waivers provide examples.
Restrictions on minors’ right to marry provide a good example of a right withheld from minors based on substantial research supporting that this restriction promotes their well-being and furthers social welfare. The fundamental right to marry is withheld from minors under modern law, a trend that has become more, not less, restrictive in the era of children’s rights.128 The increase in the minimum age of marriage is a trend solidly based on evidence showing that teenagers lack the maturity to establish a stable marriage and that many consequences harmful to both the spouses and their children are associated with these marriages.129 Teenage spouses have lower educational attainment, reduced employment prospects, and much higher divorce rates than those who marry later.130 Moreover, their children fare more poorly on health, behavioral, educational, and other measures.131 Thus, deterring teenage marriage furthers social welfare as well as that of the minors themselves.
C. Children’s Rights Under the Restatement
Consistent with these approaches, the Restatement of Children and the Law extends adult rights to minors that promote their well-being and restricts rights on the same basis. This section touches on free speech rights and rights in the justice system but focuses primarily on minors’ right to make specific healthcare decisions.
We deal briefly with the first two issues. Students in school have broad rights of political expression under the Restatement rules, following the Supreme Court’s recognition of students’ First Amendment speech rights.132 Free expression provides benefits to students and society, preparing youth for political participation and teaching lessons in civil discourse and tolerance. At the same time, restrictions on student speech that interferes with the school’s educational mission, if properly limited, can also further both students’ and society’s interests.133 We discussed earlier the Restatement’s treatment of rights and special protections in the justice system; minors are accorded procedural rights, such as the right to counsel, for their protection, but they are also limited in their freedom to exercise and waive rights.134 The Restatement restricts minors’ exercise of Miranda waivers and the right of self-representation in delinquency proceedings, based on evidence that adult freedoms in these contexts would be harmful to the minor’s interest.135
Under the Restatement, parents have the authority to make most healthcare decisions for minors and are assumed to act in their children’s best interest.136 But the Restatement includes several exceptions to this general rule, following courts and legislatures that have given minors the right to consent to particular kinds of treatment without their parents’ consent or involvement.137 In general, lawmakers confer the right to make treatment decisions on minors in situations in which the requirement of parental consent would create obstacles to beneficial treatment.138 For each exception, the right granted promotes the minor’s well-being and also advances social welfare.
First, the Restatement adopts the common law mature minor rule under which a mature minor has the right to give valid consent to routine, beneficial treatment.139 The treatment must benefit the minor (and not another person) and cannot carry serious health risks; cosmetic procedures are excluded unless they also have an important health benefit.140 This “right” promotes the child’s well-being by increasing the likelihood that beneficial treatment will be provided, in part by protecting the physician from liability for treating a patient without valid consent. The mature minor rule ordinarily does not give the minor a right to refuse beneficial treatment, although adults have this right, underscoring its purpose of promoting child well-being.141 Moreover, the rule, limited to mature minors, is supported by contemporary research finding that by mid-adolescence, teenagers are capable of making informed medical decisions.142
The Restatement’s mature minor rule also gives minors the right to consent to several treatments that have important public health benefits; these include substance abuse treatment, treatment for sexually transmitted diseases, and outpatient mental health services.143 Having the right to make these decisions privately and independently encourages minors to seek treatment for conditions that are the consequence of risky activities or involve emotional difficulties that teenagers might not want to discuss with their parents.144 It follows that the paternalistic requirement of parental consent might deter treatment, threatening harm to the minor’s well-being. These conditions, if untreated, also potentially create social costs. The rule, although heralded by children’s rights advocates as recognition of minors’ liberty interest, is actually driven by the dual goals of promoting child well-being and social welfare.
Finally, the Restatement follows constitutional and legal doctrine in extending to mature minors the right to make certain reproductive health decisions.145 These include the right to obtain contraceptive and prenatal services and the right to terminate pregnancy.146 Minors have the right to consent to contraceptive services in almost all states as part of public health initiatives to prevent teenage pregnancy.147 Although adults’ right of access to contraceptives is grounded in constitutional reproductive privacy, lawmakers extend the right to minors consistent with studies of the substantial personal and social costs that follow from teenagers having unprotected sex.148 Thus, the right to these services fits comfortably in the Child Wellbeing framework.
Similarly, the Restatement follows constitutional doctrine in defining the right of a mature minor to terminate pregnancy.149 The Child Wellbeing framework enriches our understanding of this right, although it fits less neatly into the framework than other rights of access to medical treatment. The mature minor’s right to make a decision about abortion without parental involvement implicates a liberty interest in reproductive privacy that is analogous to that of a pregnant adult. But the child well-being principle lends weight to the minor’s interest. The obstacle of a parental consent requirement likely would lead some minors to delay abortion, increasing personal and public health costs. Courts also note that pregnancy and childbirth are riskier for teenagers than for adults and, as suggested above, the consequences of having an unwanted child are particularly costly in adolescence.150 Concern for the minor’s well-being and recognition that requiring parental consent may generate serious harm are imbedded in the constitutional framework. Thus, the minor’s well-being and liberty interests merge in the context of abortion rights.
In withholding rights from minors, the Restatement relies on evidence that youth would be harmed by the exercise of these rights. We have discussed restriction of some procedural rights in delinquent proceedings. In another context, the Restatement will adopt the common law infancy defense in contract law restricting minors’ freedom to execute enforceable contracts in most situations.151 This limit on freedom of contract is based on evidence that adolescents may be vulnerable to overreaching by adults and to their own impulsive judgments, which may lead them to execute improvident agreements.152 Its purposes become clear when analyzed in the Child Wellbeing framework.
Not all rights fit within the Child Wellbeing framework. For example, many older minors are as competent to participate in the political process as adults, and withholding the right to vote from this group cannot be justified on the ground that youth welfare is advanced. But analysis in the Child Wellbeing framework clarifies that the conventional narrative that the conferral of children’s rights is granted to advance minors’ liberty interests is at best incomplete. Instead, we have shown that the goal of promoting and protecting youth welfare plays a key role.
The Restatement of Children and the Law identifies and reinforces the Child Wellbeing framework across the breadth of the legal regulation of children, demonstrating that the framework is a solid structure for modern regulation. As we have shown, lawmakers draw on a wide body of scientific knowledge about child and adolescent development as well as empirical studies about effective policies. This makes it possible to advance child well-being with greater sophistication, nuance, and confidence than during earlier periods, when lawmakers relied largely on intuition and observation. Further, legal regulation is bolstered by a clear understanding that promoting child well-being generally furthers social welfare. Finally, lawmakers are beginning to appreciate the importance of addressing the multiple ways that racial bias and inequality permeate the legal regulation of children.
This framework is clearest in the early twenty-first century reforms of juvenile justice, but it explains and shapes the regulation of children and families more broadly by elevating a robust contemporary justification for parental rights and providing a logic and consistency to children’s rights doctrine. The framework thus clarifies that not only the role of the state, but also parental rights and children’s rights are defined and shaped by a unifying interest in child well-being. This underlying coherence contrasts with earlier regulatory models that pitted the state, parents, and the child in competition for control over children’s lives. In short, the Restatement both reflects and fortifies the Child Wellbeing framework as the guiding force for the legal regulation of children in the twenty-first century.
Restatement of the Law, Children and the Law: Selected Approved Sections
Restatement of the Law, Children and the Law, Copyright © 2018, 2019 by The American Law Institute. Reproduced with permission. All rights reserved.
The following sections of the new Restatement of Law, Children and the Law (referred to in the above Essay as the “Restatement of Children and the Law” or the “Restatement”) have been approved by the American Law Institute. This Appendix uses the section numbering that was in effect at the time the sections were approved. The final version of the Restatement will reflect updated numbering.
§ 14.20. Rights of a Juvenile in Custody; Definition of Custody
(a) A juvenile in custody has the right to the assistance of counsel and the right to remain silent when questioned about the juvenile’s involvement in criminal activity by a law-enforcement officer.
(b) A juvenile is in custody if, under the circumstances of the questioning:
(1) a reasonable juvenile of the suspect’s age would feel that his or her freedom of movement was substantially restricted such that the juvenile was not at liberty to terminate the interview and leave, and
(2) the officer is aware that the individual being questioned is a juvenile or a reasonable officer would have been aware that the individual is not an adult.
§ 14.21. Waiver of Rights in a Custodial Setting
(a) A statement made by a juvenile in custody is admissible in a subsequent delinquency or criminal proceeding only if
(1) the juvenile has given a knowing, intelligent, and voluntary waiver of the right to remain silent and the right to assistance of legal counsel;
(2) the statement was made voluntarily; and
(3) the requirements of § 14.22 and § 14.23 are satisfied.
(b) The determination of whether the juvenile has given a knowing, voluntary, and intelligent waiver of rights under subsection (a)(1) and made a voluntary statement under subsection (a)(2) is based on consideration of the totality of the circumstances surrounding the interrogation, in light of the juvenile’s age, education, experience in the justice system, and intelligence. Circumstances surrounding the interrogation include police conduct and conditions of the questioning.
§ 14.22. Consultation with Counsel for Younger Juveniles
Unless otherwise provided by statute, a juvenile age 14 or younger can give a valid waiver of the right to counsel and the right to remain silent only after meaningful consultation with and in the presence of counsel.
§ 15.30. Adjudicative Competence in Delinquency Proceedings
(a) A juvenile is not competent to proceed in a hearing to adjudicate his or her responsibility for a delinquent act unless the juvenile has both a rational and factual understanding of the proceedings, and is able to consult with and assist counsel in preparing a defense. The juvenile may lack the requisite competence due to mental illness, intellectual disability, or developmental immaturity.
(b) A juvenile found incompetent to proceed cannot be subject to adjudication in a delinquency proceeding unless and until the juvenile’s incompetence is remediated and competence is attained. Remediation must occur in a reasonable period of time following the finding of incompetence and through the least restrictive means consistent with the juvenile’s welfare and public safety.
§ 2.24 Physical Neglect
(a) In a criminal proceeding, physical neglect is defined as a parent, guardian, custodian, or temporary caregiver
(1) purposefully, knowingly, or recklessly
(A) failing to provide a child with adequate food, clothing, shelter, or supervision if such failure causes serious physical harm to the child, or
(B) creating a substantial risk of serious physical harm to the child by failing to provide a child with adequate food, clothing, shelter, or supervision.
(b) In a civil child-protection proceeding, a child is physically neglected when the child suffers serious physical harm or is exposed to a substantial risk of serious physical harm as a result of the failure of a parent, guardian, or custodian to exercise a minimum degree of care in providing for the physical needs of a child. Physical neglect includes, but is not limited to, any of the following:
(1) failure to provide adequate food, clothing, or shelter, taking into consideration the financial resources of the parent, guardian, or custodian;
(2) failure to provide adequate supervision, taking into consideration relevant factors, including, but not limited to, the child’s age, maturity, and physical condition, the length of the caregiver’s absence, and the location and potential dangers where the child is left unsupervised; further taking into consideration the financial resources of the parent, guardian, or custodian;
(3) failure to protect a child from physical abuse by another person if the parent, guardian, or custodian knew or reasonably should have known of the harm or risk of harm to the child and failed to take reasonable precautionary measures to protect the child from harm; and
(4) failure to protect a child from sexual abuse by another person if the parent, guardian, or custodian knew or reasonably should have known of the harm or risk of harm to the child, including if the serious harm is only mental and not also physical, and failed to take reasonable precautionary measures to protect the child from harm.
§ 3.24 Defenses: Parental Privilege to Use Reasonable Corporal Punishment
(a) In the context of criminal proceedings, the use of corporal punishment by a parent, guardian, or other adult acting as a parent is privileged, provided that such punishment is reasonable, determined in part by whether the corporal punishment caused, or created a substantial risk of causing, serious physical harm or gross degradation.
(b) In the context of civil child-protection proceedings, the use of corporal punishment by a parent, guardian, or other adult acting as a parent is privileged, provided that such punishment is reasonable, determined in part by whether the corporal punishment caused, or created a substantial risk of causing, physical harm beyond minor pain or transient marks.
§ 19.01. Consent to Treatment by Mature Minor
(a) Although a minor ordinarily lacks the authority to consent to medical treatment, a mature minor is authorized to provide legally sufficient consent to routine, beneficial medical treatment. Subject to §19.02, other medical treatment requires the consent of a parent or guardian.
(b) Under this Section, a mature minor is a minor capable of giving informed consent to the proposed medical treatment.
(c) Ordinarily a mature minor lacks the authority to refuse recommended treatment that is expected to be beneficial or life-sustaining, unless:
(1) Such treatment can be postponed until the minor is an adult without substantial risk to the minor’s health; or:
(2) Non-treatment or alternative treatment favored by the minor poses no substantial risk to the minor’s health and is otherwise a reasonable choice.
§ 19.02. Consent by Minor to Reproductive Health Treatment
(a) A mature minor is authorized to provide legally sufficient consent to medical treatment affecting reproductive health, including treatment concerning pregnancy, childbirth, and the prevention or termination of pregnancy, without notification of the minor’s parent.
(b) Unless otherwise directed by law, a mature minor is a minor capable of giving informed consent to the proposed medical treatment.
(c) If parental consent or notification is otherwise required by statute to terminate a minor’s pregnancy, the court will determine whether the minor who does not want to involve her parents is a mature minor.
(d) If the court determines that the minor is not a mature minor, the court will permit the minor to terminate her pregnancy without the consent or notification of the minor’s parent if termination of the pregnancy without such consent or notification is in the minor’s best interest.
1. See ALI Adviser, http://www.thealiadviser.org/children-law/ (last visited Nov. 2, 2020) (describing the Restatement and listing the reporters, including author Elizabeth S. Scott, Chief Reporter, and Richard Bonnie, Emily Buss, author Clare Huntington, and Solangel Maldonado, Associate Reporters). This Essay draws in part on the Restatement work of Seton Hall University School of Law Professor Solangel Maldonado, who drafted the sections on children’s contact with third parties, including de facto parents, and medical decision-making, and University of Chicago Law School Professor Emily Buss, who drafted the sections on students’ free speech rights.
Representative sections of the Restatement are in the Appendix to this Essay. The Essay and the Appendix use the section numbering that was in effect at the time the sections were approved. The final version of the Restatement will reflect updated numbering.
3. For sections that have been approved by the ALI membership, see id.
4. Clare Huntington & Elizabeth Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 Mich. L. Rev. 1371, 1397–06 (2020).
5. Id. at 1401.
6. See Miller v. Alabama, 567 U.S. 460, 480 (2012) (prohibiting mandatory life sentence without parole for juveniles); see also Roper v. Simmons, 543 U.S. 551, 573–74 (2005) (prohibiting death penalty for juveniles); Graham v. Florida, 560 U.S. 48, 68, 82 (2010) (prohibiting life sentence without parole for juveniles for crimes other than homicide); Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016) (holding that Miller rule applies retroactively). See also J.D.B. v North Carolina, 564 U.S. 261, 264–65 (2011) (holding that age of minor must be considered in determination of whether youth being questioned was in custody).
7. See Comm. on Assessing Juv. Just. Reform, Nat’l Rsch. Council of the Nat’l Acads., Reforming Juvenile Justice: A Developmental Approach 15–16, 41–47 (Richard J. Bonnie et al. eds., 2013), http://www.njjn.org/uploads/digital-library/Reforming_JuvJustice_NationalAcademySciences.pdf (describing role of developmental research in juvenile justice).
9. Juvenile Justice, Right on Crime, http://rightoncrime.com/category/priority-issues/juvenile-justice/ (last visited Nov. 2, 2020).
10. See discussion infra Part I.C.
11. See, e.g., Barbara Bennett Woodhouse, Ecogenerism: An Environmentalist Approach to Protecting Endangered Children, 12 Va. J. Soc. Pol’y & L. 409, 412 (2005) (describing this conception and the underlying scholarship); see also Prince v. Massachusetts, 321 U.S. 158, 165–66 (1944) (describing the state as competing with parental authority).
12. See infra notes 86–87 and accompanying text.
13. See infra note 89 and accompanying text; see also Huntington & Scott, supra note 4, at 1388–89.
14. See infra Part II.B.
15. For a comprehensive discussion of the developmental model, see Elizabeth S. Scott & Laurence Steinberg, Rethinking Juvenile Justice 223–64 (2008); see also Comm. on Assessing Juv. Just. Reform, supra note 7, at 119–37.
16. For a discussion of racist underpinnings of the punitive reforms, see Scott & Steinberg, supra note 15, at 113–15.
17. See Restatement of Children and the Law §§ 14.20–.23 (interrogation) (adopted by ALI membership), § 15.30 (adjudicative competence in delinquency proceedings) (adopted by ALI membership), § 12.10 (consent to search) (approved by ALI Council), § 15.21 (waiver of counsel) (approved by ALI Council). Restatement sections on detention, delinquency dispositions, correctional facilities, and transfer to criminal court are in progress. As indicated in note 1, supra, this Essay and the Appendix use the section numbering in effect at the time the sections were approved. The final version of the Restatement will reflect updated numbering.
18. See discussion in Scott & Steinberg, supra note 15, at 82–88.
19. See Huntington & Scott, supra note 4, at 1386–87.
20. See id. at 1388.
21. Id.; see also Scott & Steinberg, supra note 15, at 94–98.
22. For a discussion of the trend toward punitive juvenile justice reform, see id. at 91–117; see also Patricia Torbet et al., Nat’l Ctr. for Juv. Just., State Reponses to Serious and Violent Juvenile Crime 6 (1996) (describing punitive trend in state legislation).
23. Elizabeth S. Scott, Miller v. Alabama and the (Past and) Future of Juvenile Crime Regulation, 31 Law & Ineq. 535 (2013) (discussing factors contributing to the contemporary reforms).
25. Id. at 539–42.
26. Id. at 542.
27. See infra notes 36, 50–51 and accompanying text.
28. See supra note 6.
29. Miller v. Alabama, 567 U.S. 460, 480 (2012).
30. Huntington & Scott, supra note 4, at 1386–87.
31. For additional discussion of Progressive Era reforms, see id. at 1379–85.
32. Id. at 1400–01.
33. Id. at 1375.
34. Id. at 1385–97.
35. Id. at 1435–36.
36. See Steve Aos et al., Wash. State Inst. for Pub. Pol’y, Doc. No. 01-05-1201, The Comparative Costs and Benefits of Programs to Reduce Crime 8 (2001), http://www.wsipp.wa.gov/ReportFile/756/Wsipp_The-Comparative-Costs-and-Benefits-of-Programs-to-Reduc (comparative study showing crime reduction benefits of several programs at moderate cost).
37. Nat’l Juv. Just. Network, Reducing Racial and Ethnic Disparities in Juvenile Justice Systems (2014), http://www.njjn.org/uploads/digital-library/RED-Policy-Update-0914-FINAL.pdf.
38. See Miller v. Alabama, 567 U.S. 460, 472 (2012); Roper v. Simmons, 543 U.S. 551, 569 (2005); Graham v. Florida, 560 U.S. 48, 68 (2010); Montgomery v. Louisiana, 136 S. Ct. 718, 733 (2016).
39. Miller, 567 U.S. at 472–74 (discussing Graham and Roper).
40. Id. at 471–72.
41. Id. at 477–78.
42. See Elizabeth Scott et al., Juvenile Sentencing Reform in a Constitutional Framework, 88 Temple L. Rev. 675 (2016) (discussing broad influence of opinions).
43. See Elizabeth Scott et al., Brain Development, Social Context and Justice Policy, 57 Wash. U. J.L. & Pol’y 13, 16–17 (2018); Alexandra O. Cohen et al., When Is an Adolescent an Adult? Assessing Cognitive Control in Emotional and Nonemotional Contexts, 27 Psych. Sci. 549, 559–60 (2016).
44. See Laurence Steinberg, The Influence of Neuroscience on US Supreme Court Decisions About Adolescents’ Criminal Culpability, 14 Nature Reviews Neuroscience 513, 515–16 (2013). For a comprehensive review, see Scott et al., supra note 43.
45. See Huntington & Scott, supra note 4, at 1400–01; see also State v. Lyle, 854 N.W.2d 378, 400–03 (Iowa 2014) (prohibiting mandatory minimum sentences of imprisonment for juveniles).
46. See Graham v. Florida, 560 U.S. 48, 68 (2010); Miller v. Alabama, 567 U.S. 460, 472 (2012); see also Elizabeth S. Scott, “Children Are Different”: Constitutional Values and Justice Policy, 11 Ohio St. J. Crim. L. 71, 86 (2013).
47. Huntington & Scott, supra note 4, at 1403.
48. See Urie Bronfenbrenner & Pamela A. Morris, The Bioecological Model of Human Development, in 1 Handbook of Child Psychology: Theoretical Models of Human Development 793, 822–23 (Richard M. Lerner ed., 2006).
49. See Laurence Steinberg et al., Reentry of Young Offenders from the Justice System: A Developmental Perspective, 2 Youth Violence & Juv. Just. 21, 23–26 (2004).
50. See Comm. on Assessing Juv. Just. Reform, supra note 7, at 134.
51. See id. at 241–42; see, e.g., V.W. ex rel. Williams v. Conway, 236 F. Supp. 3d 554, 583–84 (N.D.N.Y. 2017) (citing Supreme Court sentencing opinions in granting preliminary injunction against use of solitary confinement with juveniles); see also Task Force on Transforming Juv. Just., Charting a New Course: A Blueprint for Transforming Juvenile Justice in New York State 8–13 (2009), https://www.vera.org/downloads/Publications/charting-a-new-course-a-blueprint-for-transforming-juvenile-justice-in-new-york-state/legacy_downloads/Charting-a-new-course-A-blueprint-for-transforming-juvenile-justice-in-New-York-State.pdf (describing an investigation of juvenile placement facilities, the initial response, and the task force’s recommendations to shift further to community-based programs).
52. See, e.g., Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 L. & Hum. Behav. 333 (2003). For a discussion of the Restatement sections addressing this issue, see infra Part I.C.
53. See Huntington & Scott, supra note 4, at 1437, 1437 n.355.
54. Elizabeth Scott & Thomas Grisso, Developmental Competence and Juvenile Justice Reform, 83 N.C. L. Rev. 793, 809–11, 828 (2005).
55. See Huntington & Scott, supra note 4, at 1447–48.
56. Id. at 1399, 1404.
57. See Aos et al., supra note 36; Peter W. Greenwood, Changing Lives: Delinquency Prevention as Crime-Control Policy (2006); Scott & Steinberg, supra note 15, at 183.
58. See Juvenile Justice, supra note 9; see also Alex Altman, Criminal Justice Reform Is Becoming Washington’s Bipartisan Cause, Time (Feb. 19, 2015), https://time.com/3714876/criminal-justice-reform-isbecoming-washingtons-bipartisan-cause/.
59. See infra text accompanying notes 74–77.
60. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 223–26 (1973).
61. Restatement of Children and the Law § 12.10 (Am. L. Inst., Council Draft No. 6, 2020).
62. Id. § 12.10 cmt. b.
63. Restatement of Children and the Law §§ 10.10, 10.20 (Am. L. Inst., Council Draft No. 4, 2019) (limits on searches in schools); Restatement of Children and the Law § 14.21(b)(6), 14.21 cmt. i (Am. L. Inst., Council Draft No. 6, 2020) (limits on strip searches of youth in custody).
64. Thomas Grisso, Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134 (1980) (study comparing youths’ and adults’ comprehension).
65. Restatement of Children and the Law § 14.21 Reporters’ Note cmt. h (Am. L. Inst., Tentative Draft No. 1, 2018) (discussing research on false confessions by juveniles).
66. Id. § 14.20 cmt. b.
67. Miranda v. Arizona, 384 U.S. 436, 467–73 (1966). The test for evaluating whether someone is “in custody” under Miranda includes the circumstances of the interrogation and whether a reasonable person would believe she was free to leave. The Supreme Court has held the age of a juvenile suspect generally must be part of this determination. J.D.B. v. North Carolina, 564 U.S. 261, 270–71, 277 (2011). Following J.D.B., the Restatement incorporates a “reasonable juvenile” standard for making custody determinations, where a police officer knows (or a reasonable officer would know) that the subject of questioning is not an adult. Restatement of Children and the Law § 14.20(b) (Am. L. Inst., Tentative Draft No. 1, 2018).
68. Restatement of Children and the Law § 14.22 (Am. L. Inst., Tentative Draft No. 1, 2018); see also id. Reporter’s Note cmt. b (discussing state laws requiring counsel in order for youth in custody to waive rights).
69. Restatement of Children and the Law § 15.21(a), 15.21 Reporters’ Note cmts. b, h (Am. L. Inst., Council Draft No. 3, 2019).
70. Id. § 15.21 Reporters’ Note cmts. a, b.
71. Id. § 15.21.
72. Restatement of Children and the Law § 17.20(a) (Am. L. Inst., Tentative Draft No. 2, 2019).
73. Id. § 17.20 cmt. c, Reporters’ Note cmt. c.
74. Restatement of Children and the Law §§ 14.20 Reporters’ Note cmts. a, e–h, 14.21 Reporters’ Note cmts. a, d–i (Am. L. Inst., Council Draft No. 6, 2020).
75. Id. § 14.20.
76. Id. § 14.21.
77. Id. § 14.21 Reporters’ Note cmt. h.
78. See Huntington & Scott, supra note 4, at 1401–06.
79. See id. at 1405–06.
80. See Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 401–02 (1923).
81. In Prince v. Massachusetts, the Supreme Court recognized a limit to parental rights based on harm to a child. 321 U.S. 158, 166–67 (1944). The Court did not, however, articulate a principle for drawing this line. Id. at 171.
82. The framework thus elevates a rationale for parental authority that some scholars and lawmakers have endorsed. For an early formulation of the argument that parental rights promote child well-being, see Joseph Goldstein et al., Beyond the Best Interests of the Child (2d ed. 1979). For more recent articulations, see, for example, Martin Guggenheim, What’s Wrong with Children’s Rights 35–39 (2005); Dorothy Roberts, Shattered Bonds: The Color of Child Welfare 16–25 (2002); Emily Buss, Adrift in the Middle: Parental Rights After Troxel v. Granville, 2000 Sup. Ct. Rev. 279, 285–90; Anne C. Dailey, Developing Citizens, 91 Iowa L. Rev. 431 (2006); Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 Va. L. Rev. 2401 (1995). These scholars have not, however, integrated parental rights into a larger framework reaching across multiple domains of legal regulation.
83. Huntington & Scott, supra note 4, at 1415.
84. See Martin Guggenheim, The (Not So) New Law of the Child, 127 Yale L.J.F. 942, 947 (2018).
85. See id.; Emily Buss, Children’s Associational Rights?: Why Less Is More, 11 Wm. & Mary Bill Rts. J. 1101, 1104–14 (2003).
86. As this research demonstrates, nearly every important aspect of child development turns on a consistent and caring relationship between a parent and child. 1 John Bowlby, Attachment and Loss: Attachment (1969); 2 John Bowlby, Attachment and Loss: Separation (1973); 3 John Bowlby, Attachment and Loss: Loss (1980).
87. For the foundational work on the importance of attachment and the harms from disruption, see 1 Bowlby, supra note 86, at 27–30, 209, 326, 330; 2 Bowlby, supra note 86, at 4–16, 245–57; 3 Bowlby, supra note 86, at 7–14, 397–411.
88. Huntington & Scott, supra note 4, at 1416.
89. See Child Welfare Info. Gateway, Child.’s Bureau, U.S. Dep’t Health & Hum. Servs., Racial Disproportionality and Disparities in Child Welfare (2016), https://www.childwelfare.gov/pubpdfs/racial_disproportionality.pdf.
90. See 1 William Blackstone, Commentaries *440 (“[A parent] may lawfully correct his child, being underage, in a reasonable manner; for this is for the benefit of his education.” (footnote omitted)).
91. See Restatement of Children and the Law § 3.24 cmt. c (Am. L. Inst. Tentative Draft No. 1, 2018).
92. See id.
93. See id. § 3.24(a).
94. See id. § 3.24(b).
95. Parental use of physical discipline is declining, but some parents, particularly in low-income families and families of color, still turn to some forms of corporal punishment to discipline children. See Pew Rsch. Ctr., Parenting in America: Outlook, Worries, Aspirations Are Strongly Linked to Financial Situation 12, 45–46 (2015), https://www.pewsocialtrends.org/wp-content/uploads/sites/3/2015/12/2015-12-17_parenting-in-america_FINAL.pdf (discussing parent survey responses on using spanking). In light of this disproportionate use of corporal punishment, particularly by Black parents, the danger of intervention is particularly acute for families already at greater risk of family disruption through both the criminal justice and child welfare systems.
96. This justification explains why the Child Wellbeing framework supports the parental privilege but condemns corporal punishment in schools. Most states ban corporal punishment in the educational setting. See Restatement of Children and the Law § 8.10 Reporters’ Note cmt. a (Am. L. Inst., Tentative Draft No. 2, 2019) (listing statutes). In the school context, there are no family integrity concerns, and instead the child’s interests in dignity and bodily integrity are paramount and support a complete ban on corporal punishment.
97. Private parties can also play a role in promoting this norm. See Robert D. Sege & Benjamin S. Segal, Effective Discipline to Raise Healthy Children, Pediatrics, Dec. 2018, at 1, 5, https://pediatrics.aappublications.org/content/pediatrics/142/6/e20183112.full.pdf (advising pediatricians to help parents use noncorporal methods of discipline).
98. See Ex parte E.R.G., 73 So. 3d 634, 645–46 (Ala. 2011).
99. See Restatement of Children and the Law § 1.80 Reporters’ Note cmt. i (Am. L. Inst., Tentative Draft No. 2, 2019). Although these statutes implicate a parent’s right to make decisions about a child’s upbringing, the U.S. Supreme Court, in reviewing application of a broadly worded visitation statute, has held only that courts must accord “at least some special weight” to the parent’s decision. See Troxel v. Granville, 530 U.S. 57, 70, 73 (2000) (plurality opinion).
100. As of February 2019, at least 21 states required third parties to show harm or a substantial risk of harm to the child should contact be denied. See Restatement of Children and the Law § 1.80(b) Reporters’ Note cmt. g (Am. L. Inst., Tentative Draft No. 2, 2019).
101. Under the Restatement, a court can order contact only if it finds by clear and convincing evidence that denying the contact would pose a substantial risk of serious harm to the child. Id. § 1.80(a)(2), (b)(1). A court cannot override a parent’s objection simply because contact with the third party would benefit the child or because the child might experience some distress at the loss of the contact. Id. § 1.80(b) cmt. g.
102. This discussion relies on the work of Emily Buss, who has set forth in detail the reasons favoring the highly deferential standard. See Buss, supra note 85, at 287–98. For detailed discussion of different states’ approaches, see Restatement of Children and the Law § 1.80(b) Reporters’ Note cmt. g (Am. L. Inst., Tentative Draft No. 2, 2019).
103. See Restatement of Children and the Law § 1.82 cmt. a, Reporters’ Note cmts. a, i (Am. L. Inst., Tentative Draft No. 2, 2019). For a history of the recognition of de facto parents, see Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185, 1193–230 (2016), and for current state laws, see Douglas NeJaime, The Nature of Parenthood, 126 Yale L.J. 2260 app. C at 2370–72 (2017).
104. See Restatement of Children and the Law § 1.82(d) (Am. L. Inst., Tentative Draft No. 2, 2019) (providing that court may grant custody to de facto parent when in the best interest of the child).
105. Id. § 1.82 Reporters’ Note cmt. g. The stringent test for recognizing an individual as a de facto parent ensures that only those individuals who have truly functioned as parents will be placed on a similar plane as legal parents. See id. § 1.82(a) (de facto parent recognition requires clear and convincing evidence that “(1) the third party lived with the child for a significant period of time; (2) the third party assumed significant obligations of parenthood without expectation of financial compensation; (3) the third party has been in a parental role for a length of time sufficient to have established a bond and dependent relationship with the child that is parental in nature; and (4) a parent consented to and fostered the formation of the parent–child relationship between the third party and the child”).
106. See id. § 1.82 cmts. e, k. A court may require a de facto parent to pay child support. See id. § 1.82 cmts. a, k.
107. See Newmark v. Williams, 588 A.2d 1108, 1115–16 (Del. 1991) (describing the common law rule).
108. See Restatement of Children and the Law § 2.30 (Parental Authority and Responsibility for Medical Care), § 2.30 Reporters’ Note cmts. c, d (Am. L. Inst., Tentative Draft No. 1, 2018); see also id. § 3.26 (medical neglect), § 3.26 Reporters’ Note cmt. d.
109. See Maxine Eichner, Bad Medicine: Parents, the State, and the Charge of “Medical Child Abuse”, 50 U.C. Davis L. Rev. 205, 228–39 (2016) (describing the significant risks involved with allowing state intervention in parents’ medical decision-making).
110. See supra note 89 and accompanying text.
111. Although the law is solicitous of medical decisions based on parents’ religious beliefs, the state can intervene if the parent’s refusal to provide medical treatment poses a substantial risk of serious harm to the child’s health. See Restatement of Children and the Law § 3.26 cmt. I, Reporters’ Note cmt. i (Am. L. Inst., Tentative Draft No. 1, 2018).
112. Id. § 2.30 cmt. d.
113. See Zucht v. King, 260 U.S. 174 (1922); Jacobson v. Massachusetts, 197 U.S. 11, 25, 27–29 (1905).
114. See Restatement of Children and the Law § 2.30 Statutory Note on Compulsory Vaccination (Am. L. Inst., Tentative Draft No. 1, 2018).
115. See id. § 2.30 cmt. d.
116. See, e.g., Act of June 30, 2015, ch. 35, 2015 Cal. Stat. 1438 (repealing religious and philosophical exemptions); An Act Relating to Reportable Disease Registries and Data, 2015 Vt. Acts & Resolves 341 (repealing philosophical exemption); Act of June 13, 2019, ch. 35, 2019 Sess. Law News of N.Y. ch. 35 (McKinney’s) (repealing religious exemption).
117. See, e.g., Henry H. Foster Jr. & Doris Jonas Freed, A Bill of Rights for Children, 6 Fam. L.Q. 343, 356 (1972); Robert B. Keiter, Privacy, Children, and Their Parents: Reflections on and Beyond the Supreme Court’s Approach, 66 Minn. L. Rev. 459, 460 (1982) (“The claimed right of a child to privacy in individual matters inevitably clashes with the longstanding parental right of authority in directing the child’s life.”).
118. See Huntington & Scott, supra note 4, at 1432–38.
119. In re Gault, 387 U.S. 1, 22 n.30, 27–29 (1967).
120. See Franklin Zimring, The Changing Legal World of Adolescence 108–10 (1981) (explaining the personal and social welfare benefits of the age gap between minimum driving and drinking ages).
121. See infra notes 143–44 and accompanying text.
122. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511–12 (1969) (upholding students’ right to engage in silent protest against Vietnam war).
123. Id. at 513. See also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273–74 (1988) (upholding censorship of material in high school newspaper). Critics argue that this restraint on school speech is too broad, allowing suppression of speech offensive to school authorities. See Huntington & Scott, supra note 4, at 1446.
124. See Lois A. Weithorn & Susan B. Campbell, The Competency of Children and Adolescents to Make Informed Treatment Decisions, 53 Child Dev. 1589, 1590 (1982).
125. See Bellotti v. Baird, 443 U.S. 622, 650 (1979); see, e.g., Brief for Amicus Curiae Am. Psychological Ass’n in Support of Appellees, Hartigan v. Zbaraz, 484 U.S. 171 (1987) (No. 85-673).
126. See supra notes 64–68 and accompanying text.
127. See supra notes 69–73 and accompanying text.
128. See Guggenheim, supra note 84, at 942 (noting that New York’s raising of the age of marriage was touted as a children’s rights victory, even though the change restricted those rights).
129. In some states. the age of marriage was raised in part out of concern about parental coercion or exploitation of minors by adults. See, e.g., N.Y. S. Sponsor Memo, Act of June 20, 2017, ch. 35, https://www.nysenate.gov/legislation/bills/2017/s4407/amendment/b.
130. See Gordon B. Dahl, Early Teen Marriage and Future Poverty, 47 Demography 689, 691 (2010) (describing substantially higher divorce rate, younger age of childbirth, and lower educational attainment of women who marry before age 19).
131. See id.
132. Restatement of Children and the Law § 8.10 (Am. L. Inst., Council Draft No. 4, 2019) (Student’s Right of Personal Expression in Public School); id. § 8.11 (Out-of-School Speech).
133. See Huntington & Scott, supra note 4, at 1391, 1445–46.
134. See discussion supra Part I.C.
135. See supra notes 67–68 and accompanying text.
136. See Restatement of Children and the Law § 2.30 (Am. L. Inst., Tentative Draft No. 1, 2018).
137. Restatement of Children and the Law §§ 19.01, 19.02 (Am. L. Inst., Tentative Draft No. 2, 2019); see id. § 19.01 Statutory Note (discussing state statutes authorizing minors to consent to some types of medical care), § 19.02 Reporters’ Note cmt. a (discussing reproductive health privacy for minors).
138. See id. § 19.01 Statutory Note.
139. Id. § 19.01 Reporters’ Note cmt. a.
140. Id. § 19.01 cmt. d & Reporters’ Note.
141. Id. § 19.01 Reporters’ Note cmt. f.
142. Id. § 19.01 cmt. c & Reporters’ Note.
143. Id. § 19.01 cmt. g & Reporters’ Note. Lawmakers in many states have authorized minors to consent to these treatments by statute. Id. § 19.01 Statutory Note.
144. Huntington & Scott, supra note 4, at 1441–42.
145. Restatement of Children and the Law § 19.02 (Am. L. Inst., Tentative Draft No. 2, 2019).
146. Id. § 19.02 cmt. b.
147. Id. § 19.02 Statutory Note.
148. See Saul D. Hoffman & Rebecca A. Maynard, The Study, the Context, and the Findings in Brief, in Kids Having Kids: Economic Costs & Social Consequences of Teen Pregnancy 1 (Saul D. Hoffman & Rebecca A. Maynard eds., 2008) (documenting health and social risks for both adolescent parents and their children more onerous than those experienced by adults).
149. See supra note 125.
150. See supra note 148; see also Michael M. v. Superior Ct. of Sonoma Cnty., 450 U.S. 464, 470–71 (1981); Bellotti v. Baird, 443 U.S. 622, 642 (1979).
151. Restatement of Children and the Law § 21.02 (in draft).
152. Huntington & Scott, supra note 4, at 1449–50.