Over the course of American history, obligations and rights between children, their parents, and the state have evolved in response to the dynamic changes of the growing nation. Most prominently, the nearly absolute rights of parents have contracted as the state has taken an increasingly powerful role in protecting and educating children. Children's rights, however, have not emerged as a full-blown independent concept. Only pockets of law, primarily in the areas of criminal justice and reproductive rights, have evolved to consider children's rights discretely from those of their parents.
In early American history, the law viewed the child as an economic asset or liability, whose value was perceived in terms of labor capacity rendered to parents and other adults. During the colonial period and the early years of the republic, the father as the head of the household exercised unquestionable rights to the custody and control of his children both during the marriage and in the then-rare event of divorce. A father could hire out a child for wages or apprentice a child to another family without the mother's consent. Education, vocational training, and moral development were also the father's responsibility.
Only in certain circumstances did the state assume responsibility for children: in the event of illegitimate birth and thus the absence of an acknowledged father's duties, in the event of the death of a father or both parents, and in the event of the incompetence or financial inability of parents to care for or train their offspring. In such instances, the fate of the child was determined by the primary considerations of the ability of the adults to exercise proper maintenance and supervision, and the child's labor value. A child born out of wedlock was known as filius nullius or "child of no family" and the town's poor law official was authorized to place out the child with an unrelated family. Widows often lost their children when they became unable to support them. Before ORPHANAGES or ADOPTION became common, such children were usually apprenticed or placed out to a family that would provide subsistence in exchange for labor.
During the 1800s as the nation grew more urban and industrial, emphasis on the child's value as a laborer diminished and more interest developed in child nurture and education. The new industrial age required fathers to leave their farms or home-based shops and work elsewhere. Mothers, who remained at home, replaced fathers as the main figures in the child's world. In addition, the new industrial order required a managerial middle class with skills that could be taught and learned not in the fields but in the classroom. Public school teachers began to replace parents as the primary educators of children. With this shift, children for the first time were looked upon as having some rights of their own.
The first recognition that children had rights independent of their parents' became embodied in the legal concept expressed as the "best interest of the child." Mothers gained favor as the parent better able to nurture the emotional needs of children of tender years. Following the increasingly more common event of divorce, mothers became more likely to prevail over fathers in custody disputes. Orphanages arose as a more child-centered alternative to PLACING OUT children whose parents were dead or unable to care for them. At the same time, public education rapidly took the place of HOMESCHOOLING. The state replaced the parents in shaping the intellectual and vocational life of the child.
A variety of reforms designed to protect children from exploitation and mischief was advanced at the beginning of the twentieth century by a coalition of civic-minded adults, popularly known as child-savers. Groundbreaking measures included restrictive CHILD LABOR laws, COMPULSORY SCHOOLATTENDANCE, and JUVENILE COURTS that adjudicated children who were neglected by their parents or delinquent in their own behavior. These initiatives placed the state in a decisively more active role, irreversibly reducing parental authority and laying the foundation for the modern American child welfare and educational structures.
Legal recognition of children's civil rights apart from their parents, however, began to develop only much later, in the context of the 1960s civil rights movements. In 1965 in Des Moines, Iowa, three Quaker children were suspended from school for symbolically protesting the Vietnam War in their classroom. In an important freedom of speech decision, the U.S. Supreme Court proclaimed that children "did not leave their constitutional rights at the school house door" (TINKER V. DES MOINES, 1969).
In the more conservative 1970s, the Supreme Court allowed censorship of school newspapers and gave school authorities wide discretion to search student lockers. Later judicial rulings continued limiting the prerogatives of minor students. In the early twenty-first century the Court gave public school officials much wider latitude to test students for drugs. In Board of Education v. Lindsay Earls (2002), the Supreme Court permitted districts to require random tests of any student who takes part in extracurricular activities such as band, chorus, or academic competition. It had already upheld mandatory testing of student athletes.
Courts have accorded most serious consideration to rights for children in the procedural arena of JUVENILE JUSTICE. In 1965, the same year as the incident underlying Tinker v. Des Moines, a fifteen-year-old Gila County, Arizona, boy allegedly made an anonymous obscene phone call to an elderly neighbor. Without benefit of an attorney or a trial, Gerald Gault was sentenced to incarceration in a juvenile correctional institution until age twenty-one. The ensuing landmark Supreme Court decision, IN RE GAULT (1967)– later expanded by several subsequent decisions–gave minor defendants in juvenile court criminal actions nearly all the due process protections that adult defendants receive in the regular criminal courts, including lawyers and the right against self-incrimination. However, by the end of the century rights to a speedy trial, bail, or a jury had not been established.
In the 1990s, in response to highly touted reports of increases in juvenile crime, most state legislatures adopted measures to bring ever younger juvenile offenders to trial in adult courts, and to subject them to adult sentencing rules. By the beginning of the twenty-first century a fourteen-yearold could be tried for murder as an adult, and a sixteen-yearold could be sentenced to execution in most states.
Although a partial array of rights for children vis-à-vis schools, courts, and other governmental institutions were recognized by the Supreme Court, it was reluctant to grant children rights that were traditionally exercised by parents. Some of the most contested of these rights concerned areas of reproductive decision-making. Soon after Roe v. Wade, the Court ruled that an adult woman's right to choose to end a pregnancy via abortion extended to adolescent girls as well. However, in holding that individual states could enact parental consent laws, the Court reserved substantial authority to parents. With the ambivalence typical of its earlier decisions on children's rights issues, the Court also held that a girl could bypass her parents' withholding of consent by petitioning a judge. If the judge found that she was a mature minor, she would be permitted her own choice (BELLOTTI V. BAIRD II, 1979). Parents, public opinion, and states continue to be seriously divided on the issue of minors' access to abortion, and challenges to varying legal precedents are likely to continue.
More latitude has been allowed on the less controversial issue of adolescent consent to other sensitive medical procedures, such as the treatment of sexually transmitted diseases and drug and alcohol abuse. In many states a doctor who cannot give an adolescent an aspirin without parental consent can treat the minor for a VENEREAL DISEASE. Contrarily–and in sharp contrast to the due process protections provided children who face possible criminal incarceration–the Supreme Court has ruled that parents may commit their minor child to a mental health facility upon the recommendation of a physician, with no judicial review (Parham v. J. R., 1979). A child thus volunteered by his parents need not be a "danger to self or others"–the adult standard for commitment–but only deemed in need of medical treatment.
In courts of family law, the child's best interest remains the standard in determining custody between divorced or separated biological parents. In practice, however, the child is rarely granted a representative in judicial custody proceedings and, in most states, the preference of a child who has attained adolescent age is only one consideration among many factors to be considered by the court. Thus, the best interest standard is seldom informed by direct or even indirect input from the child herself.
In key respects, the United Nations has surpassed the progressive reforms of the American legal system in clarifying and expanding the rights of children. The framework of principles articulated in the 1989 UN CONVENTION ON THERIGHTS OF THE CHILD provides that children have a right to a nurturing environment in accordance with their developmental needs; the right to have their voices heard in accordance with their ages; the right to independent representation in legal proceedings, and the right to economic and emotional support from their parents and from the state. By 2003, only Somalia and the United States had not signed this convention.
Ladd, Rosalind Ekman. 1996. Children's Rights Revisioned: Philosophical Readings. Belmont: Wadsworth.
Mason, Mary Ann. 1994. From Fathers' Property to Children's Rights: A History of Child Custody in America. New York: Columbia University Press.
Mnookin, Robert H., and D. Kelly Weisberg. 1994. Child, Family, and State: Problems and Materials on Children and the Law. Boston: Little, Brown.
MARY ANN MASON