Free-range parenting’s potential legal roadblocks

October 2015 | Around the ABA

In the 1970s, most parents didn’t think twice about letting their kids walk home from school alone or go out with friends on Halloween to trick-or-treat for hours after dark. Today, they would be labeled “free-range” parents.

Free-range parenting, which encourages childhood independence and is also known as slow parenting or simplicity parenting, has come under fire as unsafe for children.  And it has brought about unwanted legal intrusions, including charges of parental neglect.

A webinar, titled “Hands Off My Kids: Free-Range Parenting and the Legal Ramifications,” features comments from four experts on the topic:

  • Lenore Skenazy, founder of the Free-Range Kids movement
  • Greg Housewirth, partner in the family law firm of Schreier Housewirth in Fort Worth, Texas
  • Diane Redleaf, founder and executive director of the Family Defense Center in Chicago
  • Zoe Meigs, lawyer specializing in family law from Fort Worth, Texas

Laws that address the supervision of children, or child protective laws, exist only in some states and vary based on the age of the child and whether the parent’s actions are “unreasonable.”  The law determines under what circumstances a child may be left alone in a car or at home, for example, and what constitutes proper supervision.

The Maryland parents who allowed their kids, ages 6 and 10 years old, to walk about a mile home from a park alone in December 2014 were investigated by Maryland’s Child Protective Services and charged with neglect. Danielle and Alexander Meitiv have since been cleared of any wrongdoing, but their case triggered a national debate about proper parenting and led to the clarification of many laws.

Lenore Skenazy, founder of Free-Range Kids, said the constant exposure to news stories about frightening events suffered by children has created a culture of fear.  Headlines about kidnappings, babies left alone in hot cars or other stories of extreme neglect stick in parents’ minds.

“What we’re really bad at is assessing risk,” Skenazy said. “Particularly when we look at children, we only look through the lens of danger and we don’t think about trade-offs.” One unintended trade-off to hyper supervision is a more sedentary lifestyle, as seen in rising obesity rates among children, she pointed out.

Skenazy said that rational parents don’t think twice about strapping their kids into the car to go somewhere, although car accidents remain the number one cause of death for children. They willingly take the risk, because the benefits outweigh the perceived danger. For instance, the risk of a child being kidnapped by a stranger is only 0.0007 percent, but many parents won’t let their kids out of their sight for fear they’ll be snatched, she said.

Skenazy said her “Free-Range Kids & Parents Bill of Rights” would serve most parents well to remember: “Children have the right to some unsupervised time, and parents have the right to give it to them without getting arrested.”

“This generation has just been led to believe, by a false sense of danger, that anytime a child is unsupervised they’re in danger, and I’m saying that’s not true and we shouldn’t criminalize the parents who are rational,” Skenazy said.

Family law expert Greg Housewirth said many of the child protective laws now on the books have come about after a tragic event, and are often politically motivated.

“Here in Texas, a politician loves nothing more than to be able to come back to their constituents and announce that they have passed legislation aimed at protecting children,” he said.  

Housewirth said child abuse is much easier to recognize than child neglect. What may be neglectful for a 4-year-old might not be so for a 12-year-old. Free-range parents face the most exposure when charged or investigated for neglecting the child. Vague terms, including “substantial risk,” “harm,” “immediate harm,” “reasonable person” and “imminent risk of serious harm” complicate the situation.

This vagueness allows each jurisdiction to interpret the law according to its prevailing community standards.

 “We’ve put so much pressure on parents that right now if you’re going to advocate for the free-range lifestyle, you’ve really got to put yourself on the edge (of society),” Housewirth said, adding that when you talk about the players in the child protective environment, you’re talking about a risk-averse community. When they make a decision about a child, they’ll err on the side of caution.

 “We have created a nation of reporters,” he said, in that doctors, teachers and others are required to report suspected child abuse or neglect. Most referrals that come in are unfounded, but child protective service workers must evaluate every situation.

Diane Redleaf of the Family Defense Center in Chicago said a child abuse or neglect investigation can be a traumatic event for a family, and it’s important for a lawyer to understand what the accused parent is going through.

She said most people referred to CPS for neglect cases are not followers of the free-range movement. Most calls are from someone who has seen a child playing alone outside. The average person does not expect anyone to get involved in their family life and has no idea what to do. They need legal help. The best remedy is to have the best legal counsel you can find, Redleaf said.

There is an epidemic of child abuse reporting, but not of actual child abuse, she said. Of the 6.4 million abuse cases reported in 2013, 700,000 were substantiated. Over 80 percent are neglect cases, not abuse, and the error rate is 75 percent, as most are reversed on closer look.

Free-range parenting cases would fall under the category of inadequate supervision, Redleaf said. When representing someone who’s been charged with neglect, lawyers must look carefully at the rule, she said. Often there is open-ended discretion given to investigators.

There are various factors that investigators must weigh but they’re not trained in how to weigh each factor. The age of the child and length of time a child was alone are the two biggest factors.

Family law specialist Zoe Meigs said if a free-range parent wanted to hire her for a divorce, she would advise the parent to rein in the supervision, as there is a preference among judges for close supervision. When deciding custody arrangements, close supervision is considered a best practice in guidelines for judges.

A lawyer should help prepare a client for their custody evaluation by a social worker, and for how to handle a negative custody evaluation.

If a free-range parent is very intentional and articulate about their parenting style, the court may look more favorably on them. The court will look at the history of supervision when deciding custody arrangements, Meigs said.

“During the evaluation, parents are trying so hard and often become intensely involved,” Meigs said. “That’s seen as good parenting. And remember, the system’s conception of the best interests of the child will likely overrule yours.”

Meigs offered these tips to prepare your client for a social worker evaluation:

  • Help them prepare a theme for their parenting style, making sure they stress the benefits.
  • Have them explain how they prepared the children for a free-range upbringing by assessing the safety of the neighborhood and evaluating the maturity levels of the children.

If a client gets a poor assessment, he or she should stay calm, meet with their attorney and make note of mistakes, discrepancies and omissions in the study. They shouldn’t assume everything is correct.

As the lawyer of a client who received a poor evaluation, you should:

  • Check the evaluation against the custody evaluation guidelines to make sure they were followed.
  • Have the custody evaluation reviewed by another expert.
  • Find a supportive teacher or coach who’s willing to weigh in on the positive attributes of the children, due to their upbringing.

Look to the ABA Center on Children and the Law for helpful resources, such as relevant books and standards for lawyers and judges handling these cases.