Parent’s Rights vs. Children’s Interests: The Case of the Foster Child


In recent years, advocates for children have often asserted that parental rights conflict with children’s interests. Deference to parental rights, some have claimed, ensures that children are treated more like property than people.

Children’s advocates have not attacked parental rights with equal zeal in all contexts, however. The cases in which they have typically urged limitations on parental rights fall into two categories: One involves a conflict between a parent and a mature child; the other involves a conflict between a parent and some other adult who has played a parent-like role in the child’s life. In the latter group of cases -involving stepparents, lesbian coparents, and other long-term caregivers – advocates have not typically sought per se restrictions on parental rights; they have instead argued in favor of a functional definition of parentage that would extend parental status to adult care-givers without a biological or adoptive tie to the child.

The Supreme Court has made tentative steps in the directions urged by children’s advocates. The Court has required the States to ensure that parents do not overrule a mature minor’s decision whether or not to bear a child, and has held that the fact of biological parentage is insufficient to establish a full claim to parental rights. Parenthood confers, in the Court’s words, merely the

opportunity… to develop a relationship.. If [the parent] grasps that opportunity and accepts some measure of responsibility for the child’s future he may.. .make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lie.

The perception that parents do make “uniquely valuable contributions” to their child’s development has led children’s advocates to favor retention of traditional parental prerogatives in most contexts other than that of the mature minor. The advocates have not sought more extensive state interference with parental decision making in intact families nor greater restrictions on the rights of parents who divorce or separate. Indeed, the functional definition of parentage that the advocates have espoused would extend the number of adults who can claim parental prerogatives.

This article focuses on the case of the foster child. This is an interesting case because, in contrast to the general emphasis on relationship protection that has characterized advocacy on behalf of children, advocates have here argued in favor of faster and easier termination of the parent-child relationship.10 A comparison of the divorce and foster care literature illustrates the difference in approach: In divorce, the child’s relationship with a noncustodial parent is almost invariably described as a positive factor in her development that should be encouraged and facilitated; termination of the parental relationship is approved only in extreme cases where the parent threatens the child’s health or safety. In foster care, however, the noncustodial parent is typically seen as a threat to the child’s relation-ship with her foster parent or her opportunity to obtain adoptive parents; termination of parental rights is urged whenever the child’s return home cannot be accomplished quickly.

The first part of the article analyzes whether the interests of foster children are genuinely different from those of children separated from a parent outside the foster care system, and whether a policy in favor of severance or preservation of the parent-child relationship best serves children’s interests. It concludes that the interests of foster children are not so distinctive as to justify different legal principles and that the available evidence supports a policy in favor of preservation of the parent-child relationship for all children.

The second part of the article analyzes why – despite the evidence – children’s advocates have tended to disfavor preservation of the parent-child relationship for foster children. It concludes that the preference results from state fiscal incentives, the desires of adoptive parents, and the symbolic benefits – legal rebirth and a fresh start – conferred on children by adoption. It also analyzes the hidden costs of that preference.

Suggested Reading

Matthew I. Fraidin∞  This is a transcript of a speech given by Professor Fraidin at the N.Y.U. Family Defense Clinic’s 25th Anniversary Celebration Symposium, held on April 7, 2016. This is the life of a family defense lawyer: A 17-year-old