Introduction
Restatements do, however, capture the trajectory of the law. In the words of the American Law Institute, Restatements are “intended to reflect the flexibility and capacity for development and growth of the common law.” The sections discussed in this essay reflect the promising trajectory of some areas of doctrine in the family regulation system.
As this article shows, the Restatement plays a useful role in limiting the reach of the family regulation system, even as the broader debate about the future of the system continues. By articulating guardrails for state intervention and identifying promising developments in the law, the Restatement makes an important contribution to the present operation of the law. Additionally, the child wellbeing framework embedded in the Restatement is a sound basis for policies that offer proactive support for families, although the Restatement itself cannot implement such policies.
I. Guiding Principles for the Family Regulation System
Many family regulation cases are handled at a social work level, without court involvement. In this line of cases, the agency determines that a child faces a low or moderate risk of harm in the home and can remain in the care of the parent; the agency works then with the family without involving the court. By contrast, if the agency believes the child faces a risk of serious harm and may need to be removed from the home, or if the family refuses to work with the agency, the agency may file a petition with the court. Accordingly, when a court becomes involved in a family regulation case, the question is whether the agency has the authority to intervene in the family’s life against the parent’s will.
This posture cannot be emphasized enough: The court’s role in the family regulation system is to determine whether to authorize coercive state intervention in the life of a family. To oversimplify matters and yet still capture the essence of most court cases, the parent wants action or outcome x, but the child welfare agency is insisting on action or outcome y. The child may be represented by counsel, or may have a guardian ad litem whose role is to present what they determine to be the child’s best interests. The court must determine whether to intervene and, if so, how.
The Restatement articulates three principles to guide this coercive intervention. First, the government must overcome a high bar to interfere with the integrity of the parent-child relationship. Both the U.S. Constitution and federal and state laws provide substantial protection for the parent-child relationship and strictly limit the state’s ability to intervene coercively in this relationship. The Restatement makes clear that court-authorized state intervention is limited to parental conduct that causes serious harm—or poses a substantial risk of serious harm—to a child’s physical or mental health.
This protection of the integrity of the parent-child relationship is at its zenith when the state tries to remove a child from the care of a parent. The court may order the temporary removal of a child only if the court finds that continuing in the care of the parent presents an imminent threat of serious harm to the child’s life, health, or safety. Even then, the removal of a child from the home is justified only if the threat of serious harm cannot be mitigated through supports and services to the family while the child stays home and only if the harm to the child from removal outweighs the harm of remaining in the home. This approach recognizes that abuse and neglect harm children, but state intervention also poses serious risks to children. Further, if the state removes a child from the home, the state must make reasonable efforts to reunify the family.
Second, “the state must allow for diverse parenting choices and practices.” Coercive state intervention is not justified simply because a parent is raising a child according to the parent’s value system, which may not reflect dominant norms. Instead, court-ordered intervention is justified only when parental choices cause serious harm or pose a substantial risk of serious harm to the child. Respecting diverse parenting practices is especially important for marginalized families because of the historical and ongoing discrimination against racial, ethnic, and religious minority parents.
Finally, the state’s goal is to help the family address the issues that led to state involvement. This assistance should help the family stay together or, if the child is removed, help return the child home as expeditiously as possible.
These principles are rooted in the Due Process Clause of the Fourteenth Amendment, which provides substantial protection for the parent-child relationship. In a pair of cases from the 1920s, the U.S. Supreme Court first recognized parental rights, prohibiting states from unduly burdening the “liberty of parents . . . to direct the upbringing and education of children under their control.” Intervention through the family regulation system threatens the parent-child relationship by replacing parental decision-making and exposing the family to the risk of separation. This kind of interference is constitutionally permissible only to protect children from serious harm.
Beyond the Constitution and federal and state law, the Restatement’s sections are based on substantial evidence showing that family integrity and parental autonomy generally further children’s wellbeing. A stable parent-child relationship undergirds healthy child development, and disrupting this relationship can seriously harm a child. Thus, keeping families together is usually in a child’s best interests, and the means of state intervention should safeguard family integrity whenever possible.
These principles will not solve the significant failings of the family regulation system. They do not, for example, change the system’s myopic focus on a parent’s conduct rather than the circumstances of family life, especially poverty. But a vigorous application of these principles by all courts would help limit the reach of coercive state intervention.
II. Principles in Action
Several sections of the Restatement—reflecting the chronology of a typical case—illustrate these principles in action.
A. The Parental Privilege to Use Reasonable Corporal Punishment
Defining abuse and neglect is a critical component of the legal structure governing the family regulation system, affecting the entire family regulation system, not only court involvement. Broad and vague definitions would sweep in far more cases than narrow and specific definitions. To limit the reach of the family regulation system, the Restatement delineates concrete and relatively narrow circumstances that constitute abuse or neglect. The Restatement also contains a widely recognized defense: the parental privilege to use reasonable corporal punishment. Every state recognizes this defense, and it applies in both criminal cases and civil child-protection proceedings, although the standard differs somewhat in each context.
This privilege may seem out of step with an interest in promoting the wellbeing of children and with an international trend to prohibit corporal punishment, but the Restatement does not justify the privilege by asserting that corporal punishment is harmless or an effective means of discipline. Instead, the Restatement grounds the privilege in the principles outlined above. The privilege balances the twin goals of protecting children from serious harm but also safeguarding the integrity of the parent-child relationship. To these ends, the privilege does not encompass corporal punishment that seriously harms a child, but the privilege does protect parents and families from coercive state intervention, which poses its own risks of harm. A criminal prosecution could lead to the incarceration of a parent, and a civil child-protection proceeding could lead to the removal of the child from the home. The privilege thus limits court intervention through either system to instances where the use of corporal punishment is unreasonable and the harm to the child satisfies the relevant standard.
The privilege also protects pluralism, which is especially important for families of diverse backgrounds. In a 2015 survey, a substantial percentage of parents reported using spanking as a form of discipline with their children, with a higher percentage of Black parents reporting that they used spanking than white parents or Hispanic parents. Black families are already overrepresented in the family regulation system, and the privilege thus provides some protection from coercive state intervention.
In sum, restating the parental privilege to use reasonable corporal punishment is one way the Restatement circumscribes the reach of the family regulation system—protecting children from serious harm while also limiting state intervention in family life.
B. Reasonable Efforts to Keep a Child at Home or Return a Child Home
The removal of a child from a parent’s care is a grave interference with the constitutionally protected parent-child relationship. Both the Fourteenth Amendment of the U.S. Constitution and federal and state statutory laws protect against this kind of interference. Before trying to remove a child from the custody of a parent, federal law requires that, in most cases, the state must make reasonable efforts to keep the child in the home. And, if a court does order the removal of a child from the home, the state has an obligation to make reasonable efforts to reunify the family.
To safeguard family integrity by protecting families from the removal of a child, and to speed the return of a child if the child is removed, twin sections in the Restatement elaborate the reasonable efforts requirements. The sections clarify that the state’s goal is to help the parent address the issues underlying the allegations of abuse or neglect and assist the parent in providing basic care to the child. To this end, a child welfare agency must “consult with the parent or guardian to develop a written plan that identifies clear and concrete goals related to the basic health and safety of the child and specific steps the parent or guardian must take to meet these goals.”
These may seem like common-sense requirements, but they are not always followed in practice and yet can make a significant difference for a family. Consulting with the parent about the content of the plan makes it more likely that the plan will reflect the parent’s understanding of the family’s needs. Ensuring the plan is written increases the likelihood that the parent and the agency have a meeting of the minds on the necessary steps to keep a child at home or return a child home. And making those steps concrete has the twin benefit of helping the parent understand what is required and making it possible to determine whether the parent has satisfied the steps. The “clear and concrete” requirement also increases transparency, which restricts the ability of the state agency to impose requirements that do not relate directly to the problems that led to the state intervention.
The Restatement sections also require the state agency to “provide services necessary for the realization of the plan that are tailored to the needs of the family, available and accessible, and consistent and timely.” These requirements make it more likely that the services are useful to the family. The sections also place the obligation on the state agency to help secure the services, with the understanding that the agency is better positioned than the parent to do so.
C. Alternative Care of a Child Following Removal
A beneficial reform in the family regulation system is the increased use of kinship placement for children in foster care. Both federal and state laws prioritize kinship care, and the Restatement underscores and encourages this development by setting forth a clear hierarchy of preferences for the temporary placement of a child removed from the custody of a parent. The first preference is for a fit parent who was not named in the petition. If that parent is available to care for the child, then this is the preferred temporary placement. If such a parent is unavailable, then the second preference is to place the child with an extended family member or a person with whom the child or the child’s family has a significant relationship, often called fictive kin. After that, the preference is for the most family-like setting possible, with group homes and institutional care strongly disfavored.
These placement preferences reflect the principles set forth above. The removal of a child from a parent’s custody significantly interferes with the parent-child relationship and can seriously harm a child. The goal is to safeguard the parent-child relationship notwithstanding the removal and to mitigate the harm to the child of removal. Placing a child with another parent, a family member, or fictive kin furthers this goal. Most importantly, when a child is in one of these placements, the state has no obligation to petition the court to terminate parental rights, limiting the risk that the parent-child relationship will be severed permanently. And when the child is living with a parent, relative, or fictive kin, this placement can help keep the child connected to the child’s family and community. The removal and placement are still a significant disruption and pose serious risks to the child, but the familial or fictive kin placement is one way to moderate the impacts.
D. Termination of State Custody
The section governing the termination of state custody is a final example of the Restatement furthering the guiding principles. This section, titled Permanent Placement Options and Permanency Hearings, describes the different permanency options for a child in state custody. The starting premise is that foster care is not a permanent placement and, instead, the goal is to return the child home expeditiously or find an alternative permanent placement. This section reflects the competing interests in the decision. The Constitution protects the parent-child relationship, but remaining in foster care poses risks to the child, including multiple placements, educational disruption, and a loss of contact with family, friends, and community. Remaining in foster care also deprives the child of a permanent home.
The Restatement balances these interests by emphasizing the importance of reunifying the parent and child but also stating that if this cannot be done within a reasonable time frame, then the court should consider adoption, legal guardianship, and a transfer of custody to a relative or person with whom the child or the child’s family has a significant relationship. As a last resort, the section notes that a child may remain in foster care until the age of majority—what is known as “another planned permanent living arrangement.” This, however, is heavily discouraged and is permitted only in narrow circumstances.
One significant contribution of this section of the Restatement is putting several permanency options on an equal plane: adoption, legal guardianship, and a transfer of custody. Historically, the legal system prioritized adoption for a child who could not return home safely. But for some children and families, either a legal guardianship or a transfer of custody is a viable and appropriate permanency option. Many children and caregivers prefer these options over adoption because they do not require the termination of parental rights and because these options better describe the felt relationship between some caregivers and children. These options are an especially good fit for older children because there often are no adoptive homes for these children.
Another contribution of the section is setting forth two related but distinct kinds of permanency. Traditionally, the law focused only on legal permanence: ensuring a child has a permanent placement when leaving foster care. More recently, the law also considers relational permanence: preserving a child’s relationships with family members and other important people in the child’s life. As the section describes, substantial research demonstrates that both legal and relational permanence are foundational for child wellbeing. The section encourages relational permanence by permitting an enforceable right of contact between the child and family members and other significant individuals following an adoption, if the adoptive parents agree to this contact and if the court finds that it is in the child’s best interests. Additionally, the court must order reasonable visitation if a child is placed in a legal guardianship or in the custody of a relative and parental rights are not terminated. The section emphasizes that both placements thus allow an ongoing relationship between the child and family members.
III. Using the Restatement’s Child Wellbeing Framework as a Guide for Systemic Reform
As Elizabeth Scott and I have argued elsewhere, and as Professor Scott summarizes in her essay in this issue, the Restatement reflects an emerging but coherent framework that shapes and integrates doctrine across different areas of the legal regulation of children. The core principle and goal of modern regulation of families is the promotion of child wellbeing. Three elements define the child wellbeing framework: First, legal regulation increasingly relies on research on child and adolescent development, as well as empirical evidence about the effectiveness of different policies. Second, there is a growing recognition among lawmakers and the public that advancing child wellbeing benefits society and that investments in children and families can be cost-effective and are necessary. Finally, there is an awareness of the need to address structural inequalities, even if the efforts to do so are still at an early stage.
These elements of the child-wellbeing framework—reliance on science, recognition of social welfare benefits, and a commitment to addressing structural inequality—provide strong support for the kinds of policies that are needed to reform the family regulation system. As a starting point, the child wellbeing framework highlights the gap between the family regulation system, which too often does not reflect the framework, and other areas of the legal regulation of children, which largely do reflect the framework. Most problematically, the family regulation system does almost nothing to strengthen families ex ante and instead waits for a crisis in a family and then intervenes heavy-handedly.
As Professor Scott and I have argued, if the family regulation system fully embraced the child wellbeing framework, the state would support and strengthen all families and especially those at risk of involvement in the family regulation system. This effort would draw on research showing the importance of early childhood development and the benefit of supportive programs during this period, such as home visiting for new parents. The framework supports paid parental leave, subsidized childcare, and cash transfers to parents of children. The approach would be multifaceted, with broad-based efforts to address the risk factors for child abuse and neglect—including poverty, intimate partner violence, substance use disorder, and mental illness—as well as more targeted programs that teach parenting skills and provide support for parents.
For the reasons explained above, the individual sections of the Restatement cannot accomplish these much-needed reforms. But the child wellbeing framework embedded in the Restatement provides a blueprint for action.
Conclusion
As established at the outset of this essay, the Restatement of the Law, Children and the Law cannot and will not abolish or radically reform the family regulation system. But while that debate continues, the Restatement offers guidance on the state of the law, underscoring the constitutional protection of the parent-child relationship and providing limits on coercive state intervention. Through its embedded child wellbeing framework, the Restatement also offers both a diagnosis of the problems with the system and a roadmap for broad reform.
