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Child-Parent-and-State-Guggenheim-Fall06

Child-Parent-and-State-Guggenheim-Fall06 - Child Parent...

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Child, Parent & State Outline Guggenheim – Fall 2006 OVERVIEW Impossible to conceptually isolate the subject of children’s rights from thinking about adults o Children are interdependent on adults in most cases Rules regarding children are simultaneously rules affecting adults – can be rephrased as laws about adults and their views about children Can deny parents certain choices re: child-rearing o i.e. curfew laws may deny adults the opportunity to associate with children in public at night, or to choose to let their children stay out past midnight Can benefit parents and the world they want to live in o i.e. child labor laws partly passed to ensure adults wouldn’t have to compete against children for much-needed jobs Rules about children are always made by adults o Tension in children’s rights arena between adults deciding what is best for children by restricting their rights or enhancing them i.e. child labor laws / compulsory education Could be seen as great victories in terms of protecting children’s rights, but could also be seen as restrictions on a child’s freedom (if viewed from children’s liberation perspective of ‘60s children’s rights movement) Children’s rights is a slogan in search of a definition Themes: Relationship between children, parents, and the state Does the court come up with answers by applying law, or are answers reached for lots of reasons, with law being the excuse? Meaning of “child” – defined by being under a certain age, also defined by being someone’s offspring Painter v. Bannister (IA, 1966) Issue : custody dispute between father and maternal grandparents o Father not present custodian – asked Bannisters to take care of Mark and 15 months later asked for custody back Holding : court concludes that child’s BI will be better served if he remains with grandparents o Specifically says neither party is unfit o Mentions presumption of parental preference – but dubious that this presumption is sufficiently considered by the court Based on presumption in favor of biological parent + mother’s preference for Mark to remain with his father = court has 2 legal bases to grant custody to father Should need to disprove that such custody is in BI of the child to ignore these bases – doesn’t seem like court does given their reasoning Defenses of court’s decision: grandfather treated as psychological parent, history of child development while at Bannister’s home Major issues that arise from this case Rebuttable presumption fit parents have a right to retain custody of their children o Practicality / momentum concerns – law should presume that an ongoing custodial relationship which is successful should be maintained and not disrupted But in Painter v. Bannister , granting custody to father would mean that Mark would be removed from the home where he was currently living (w/grandparents) o Why should we view the parent-child relationship as presumptively more valuable?
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