Children’s Rights in the United States: In Search of a National Policy

289 Pages·1998·15.376 MB·English

by  Nancy E. Walker, Catherine M. Brooks, Lawrence S. Wrightsman

Children's
Rights in the
United States
For our children
Kristen Hansen Perry and Laura Meaker Perry
Whose childhoods now are a tapestry of memories
Martin Brooks-Lesser
Whose childhood is unfolding in the splendor of daily discoveries
Allan Jefferson Wrightsman
Whose childhood communicated the essence of individuality
And for children everywhere
Who deserve the rights and respect of full personhood
-χ^
Children's
Rights in the
United States
In
5earch
of a
National
Policy
Nancy E. Walker
Catherine h. Brooks
Lawrence 5. Wrightsman
®
SAGE Publications
International Educational and Professional Publisher
Thousand Oaks London New Delhi
Copyright © 1999 by Sage Publications, Inc.
All rights reserved. No part of this book may be reproduced or utilized in any form or by any
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Library of Congress Cataloging-in-Publication Data
Walker, Nancy E.
Children's rights in the United States: In search of a
national policy / by Nancy E. Walker, Catherine M. Brooks, Lawrence S.
Wrightsman.
p. cm.
Includes bibliographical references and index.
ISBN 0-8039-5103-5 (cloth: acid-free paper)
ISBN 0-8039-5104-3 (pbk.: acid-free paper)
1. Children—Legal status, laws, etc.—United States.
2. Children's rights—United States. I. Brooks, Catherine M.
II. Wrightsman, Lawrence S. III. Title.
KF479.W35 1998
323.3'52'0793—ddc21 98-19695
This book is printed on acid-free paper.
01 02 03 10 9 8 7 6 5 4 3 2
Acquiring Editor: C. Terry Hendrix
Production Editor: Sherrise M. Purdum
Editorial Assistant: Navair Kabakian
Typesetter/Designer: Janelle LeMaster
Cover Designer: Candice Harman
Contents
Acknowledgments ix
PART I: FOUNDATIONS
1. Children Are Persons ... Or Are They?
An Introduction to the Issues 3
Introduction 3
Trends in Supreme Court Decisions Regarding Children's Rights 10
U.S. Policy on Children's Rights: Does It Exist? 12
Thesis and Purpose of This Book 13
2. From Property to Personhood: A Historical and
Contextual Perspective on the Rights of Children 16
Worldwide Status of Children Today 19
Views Toward Children's Rights 20
3. Getting It Right: The United Nations Convention on the
Rights of the Child 28
Elements of the U.N. Convention on the Rights of the Child 29
Ratification of the U.N. Convention on the Rights of the Child 30
How Does the U.N. Convention Relate to U.S. Law? 38
Current Status of the U.N. Convention in the United States 39
4. Differing Views: Perspectives on Children's Rights and
Competencies 43
Perspectives on Children's Rights 43
Conceptual Distinctions Among Rights to Protection,
Self-Determination, and Entitlement 46
Measurement of Attitudes Toward Children's Rights 52
Development of Competence in Decision Making 62
Balancing the Rights of Children 65
PART II: A PATCHWORK OF POLICIES
5. There's No Place Like Home: The Rights of Children
Within the Family 69
The Conflict Between Parents' Rights and Children's Rights 72
Children's Rights in Custody Decisions 79
The Right to Sue: Children's Self-Determination Within
the Family 93
Grandparents' Rights 96
Recommendations Regarding the Rights of Children
Within the Family 101
6. When Parents Are Not Enough: The Rights of Children
in the Social Service System 103
Role of the State in Protecting Children's Rights
Within the Family 105
When Parents Cannot Adequately Provide for Their Children 106
When Parents Harm Their Own Children 114
When Children Are Relinquished by Their Parents 128
Recommendations Regarding the Rights of Children in the
Social Service System 138
7. Being Patient With Patients: The Rights of Children
in the Health Care System 140
Why Children's Voices Typically Are Not Heard 141
The Competing Rights of Parents, Children, and the State 142
Children's Rights in Medical Care 144
Children's Competence to Participate in Medical Decision
Making 149
Children's Rights in Mental Health Care 155
Recommendations Regarding the Rights of Children in
the Health Care System 165
8. Lessons Learned: The Rights of Children in the
Educational System 168
The Purpose of Education 170
Why Is Education Important? 171
What Constitutes an Education? 172
Do Children Have a Right to Be Educated? 173
Do Children Have a Right Not to Be Educated? 174
Children's Rights Regarding Specific Educational Issues 176
Children's Capacity to Make Decisions Regarding Their
Educational Rights 191
Recommendations Regarding the Rights of Children in the
Educational System 191
9. On Guilt and Gault: The Rights of Children in the
Juvenile Justice System 193
The Child Is a Person Before the Constitution—Almost 194
The Juvenile Court After Gerald Gault 198
The Transfer to Adult Court 205
Juvenile Crime and the Death Penalty 208
Children as Legal Witnesses 212
Recommendations Regarding the Rights of Children in the
Juvenile Justice System 214
10. Working It Out: The Rights of Children in Employment 216
Nature and Scope of the Problem Today 217
Children Who Work: Answers to Some Important Questions 218
Development of Child Labor Laws 223
Using Empirical Research to Guide Governmental Policy
on Child Labor 232
Promising Trends in Child Labor Practices 233
Recommendations Regarding the Rights of Children
in Employment 235
Concluding Comments: Children Are Persons! 238
A Developmental Model of Children's Rights 240
Tasks for the Future 241
References 243
Legal Cases Cited 260
Author Index 264
Subject Index 269
About the Authors 277
Acknowledgments
If
ike raising a child, writing a book gives rise to a wide spectrum of
*"* emotions—joy and frustration, satisfaction and frustration, pride and
frustration. The tasks of authorship, also like the tasks of parenting, can be
both fulfilling and mundane. The latter certainly are made more bearable—
and even enjoyable—when the authors, rather than working in isolation, are
surrounded by a network of support, knowledge, and skill. We consider
ourselves particularly fortunate in that regard and so give heartfelt thanks to
the "extended family" that helped bring this project to fruition.
For their especially careful research, dogged determination, and general
good cheer, we thank Kathryn A. Honecker, Jennifer S. Hunt, Isabelle
Cherney, Mindy Weiner, Stephanie Weiland, Lori A. C. Komori, Michaela
Culver, Rachel Jackson, Traci M. Gleason, Jessica S. Cain, Julie Galas, and
Lisa Kellen.
For their perseverance in reading chapter drafts "under the midnight
oil" and in providing particularly thoughtful critiques, we thank Karen
Kassebaum, J.D.; George R. Lesser; Gary B. Melton, Ph.D., Kathryn A.
Olson, J.D.; Stephen D. Starr, M.D.; and Harriet I. Walker.
For her careful typing of chapter drafts, we thank Katia Silva.
For their encouragement and moral support, we thank our colleagues in
the Center for the Study of Children's Issues at Creighton University.
ix