The Restatement of Children and the Law: Modern Regulation in a Developmental Framework

In May 2024, the membership of the American Law Institute approved the Restatement of Children and the Law, the first Restatement to focus on the law regulating children and families. The combined efforts of five Reporters (Elizabeth Scott, Reporter, and Richard Bonnie, Emily Buss, Clare Huntington and Solangel Maldonado, Associate Reporters), working for almost nine years, this new Restatement covers most of the legal landscape of American law’s relationship to children. It is organized in four Parts: Part I, Children in Families, deals with parental rights and authority and state intervention in families; Part II, Children in Schools, covers children’s rights and the state’s obligation and authority (and its limits) in the public school context; Part III, Children in the Justice System, covers the rights and protections of youths in both the juvenile and criminal systems; and Part IV, Children in Society, deals with the law’s direct relationship to children not mediated by the institutions of the family, school, or justice system. All citations that follow are from the Restatement.

The animating principle that unifies the law across these domains is legal regulation to promote the well-being of children. The promotion of children’s well-being as a core principle of the law can be traced to the “progressive reforms” of the early 20th century, but the contemporary “child well-being principle” has three features that distinguish it from its predecessor and that promise to reinforce its stability. First, modern law increasingly draws on research on child and adolescent development and on studies of policy effectiveness, recognizing that empirically based law and policy attuned to the developmental needs of children promote their well-being better than the law’s earlier approach that relied on intuition and tradition. Second, lawmakers today understand and emphasize that developmentally informed law and policy enhance social welfare as well as children’s interests. Third, courts and other lawmakers are beginning to acknowledge the entrenched racial and class bias affecting the law’s relationship to children and are beginning to take tentative steps to address it.

Part I of the Restatement dealing with state intervention in families follows modern courts in recognizing that robust protection of parental rights and restriction of state intervention in families not only protects parents’ constitutional liberty interests, the traditional rationale, but also promotes the well-being of children. Although the government can and does preempt parental authority when required to do so by children’s and societal needs, modern lawmakers recognize that the well-being of individual children generally is promoted if their parents, and not the government, have primary authority to make decisions affecting their lives, even if parenting is less than optimal. The modern approach is supported by substantial developmental research showing that a close, stable bond with caregiving parents is essential to healthy child development and that disruption of this bond is harmful. Further, unlike the traditional rationale, regulation grounded in the child well-being principle is self-limiting; exercise of parental authority that seriously harms children is not protected, even if based on parents’ religious beliefs.

Deference to parental decision-making serves other important functions. It reinforces and respects the importance of the parental role and encourages parental commitment. It also protects families, particularly low-income families and families of color, from excessive state intrusion when they depart from professionally sanctioned parenting norms that can make them the target of harmful intervention. For example, the Restatement, like nearly every state, recognizes the parental privilege to use reasonable corporal punishment, not because it endorses this form of discipline, but because a prohibition would open the door to state intrusion in vulnerable low- income families who follow this practice. (§ 2.23). Thus, the Restatement embraces the principle that diverse parenting practices and choices should be allowed, so long as they do not inflict serious harm on the child. Chapter 2: Introductory Note.

The Restatement implements these core principles through rules that limit state authority to intervene in families to situations in which parental behavior poses a serious threat to their children. For example, state intervention in cases of physical abuse requires a finding that the parent has inflicted, or created a substantial risk of, serious physical harm to the child (§ 2.20). Intervention in cases of physical neglect also requires a finding of serious physical harm or a substantial risk of such harm. (§ 2.24).

Developmental experts confirm that the removal of a child from parental custody and placement in foster care not only interferes with the parents’ constitutionally protected interest but also poses serious risks to the child. Given the importance of maintaining stability in the child’s relationships with parents, the Restatement follows courts requiring that these risks must be balanced against the risks of harm posed by the parent. (§ 2.40). Further, if at all possible, even when abuse or neglect is found, the state should try to keep the child with the parent while working with the family to address the issues that led to intervention. (Id.) Thus, a court may order the removal of a child only if the court finds that the parent presents a threat of serious harm to the child’s life, health, or safety that cannot be mitigated without removal. (§§ 2.42–2.44). In most cases the state must make substantial efforts to reunify the child and parents. (§ 250). And in all removal proceedings, the parent has a right to representation by counsel (§ 2.10).

The Restatement aims to protect child well-being when the state seeks to terminate parental rights, allowing termination only when the government’s reasonable remedial efforts have failed and circumstances are unlikely to improve in a reasonable period of time. (§ 2.80 (a)). The court is directed to consider the strength of the parent-child relationship in making the decision and whether an appropriate permanent placement is available. Moreover, termination is presumed not to be in the child’s interest if the child is left without a permanent placement. (§ 2.80 (b)). Finally, the court is directed to recognize a post-adoption contract between the parent and adoptive parent allowing parental contact with the child. (Id.).

The Restatement of Children and the Law embodies the modern approach to family regulation. In contrast to earlier times, the law today restricts state intrusion in families, based on substantial evidence that this approach promotes child well-being. It follows modern science in presuming that the interests of children and their parents are usually aligned and that, even in cases of abuse and neglect, child well-being is promoted by state support that creates minimal disruption.