When adults exercise basic liberties, such as freedom of speech, association, or travel, their actions can adversely impact any child in their custody. In several topical areas of family and juvenile law, the prevailing view among courts and scholars is that the self-determination rights and interests of adults who happen to be parents trump or, at a minimum, must be balanced against the interests of their children, so that sometimes children’s welfare must be sacrificed for the sake of parents’ self-determination. This Article demonstrates that this view is mistaken, and that any deference to parents’ self-determining interests or supposed rights is inappropriate in resolving custody disputes between parents or between a parent and the state. The constitutional and normative analysis that ordinarily applies when the state constrains individual liberty is inapt in situations where the state acts as a proxy decision-maker for private individuals, and this Article shows that this is how we must view the state’s actions when courts and agencies decide with whom children will live. In such cases, it is inappropriate for state actors directly to consider the interests of anyone other than the children themselves.
Founded in 1959, the Arizona Law Review is a general-interest academic legal journal. The Review is edited and published quarterly by students of the University of Arizona James E. Rogers College of Law.