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gets treatment, finds suitable housing, or returns from prison, or it might be a more long-term arrangement whereby a parent shares child-rearing responsibilities with one or several relatives . Unlike the child welfare model that threatens loss of parental rights if family problems are not resolved within a year, this approach recognizes that complete management of mental illness or recovery from substance abuse is a long-term process that may require multiple treatment episodes .42 During that time, the family should be empowered to decide on the best arrangement to meet the needs of the child .
The process should be simple and easily accessible . Poor families may not be able to access courts due to high filing fees, complicated procedures, and the inability to afford lawyers . Families should be able to complete the process on their own . For more complicated cases, the state should provide lawyers . This cost would still likely be less than the high costs of multiple attorneys in the current state adversarial model . The case should not involve on-going court oversight, but the family should be able to access the court again at any point to rearrange custody . There should be a single access point or coordinated mechanism to allow families to reassign custody and, if needed, also obtain financial assistance and services .
The legal standard in a public health approach would have to contend with the legal rights focus of child custody disputes . There is an ongoing debate in family law about the proper balance between parents’ rights, children’s rights, and state authority . The traditional child-welfare framing of this debate pitted state intervention and swift adoption,43 on the one hand, against family preservation, on the other hand . This debate left us squarely within the child welfare paradigm because even family preservation occurs after a family breakdown significant enough to trigger child welfare action . And third-party custodial rights are subordinate to parental rights absent a showing of harm to the child .44 Some legal scholars have started pushing us in a direction that better accommodates a public health paradigm .45 For example, Clare Huntington has written that a rights-based model does not adequately protect parents or children, and should be shifted, although not abandoned altogether, in favor of a more holistic problem-solving model .46 As Professor Huntington wrote:
[R]ights obscure the role of poverty in abuse and neglect, and relying on rights does not ensure poor parents will get the help they need . Additionally, rights will never be the primary way to produce good results for families because the rights-based model creates, or at least perpetuates, an adversarial process for decisionmaking . This adversarial process impedes the thoughtful group collaboration among parents, children, and the state that is essential to devising beneficial solutions . . . . The reality is that the emphasis on rights has led to the wrong kind of involvement in the lives of troubled families, resulting in over- and underprotection of everyone’s rights and a serious misallocation of resources .47
42 Marsha Garrison, Reforming Child Protection: A Public Health Perspective, 12 va. J. soc. pol’y & L. 590, 631 (2005).
43 elizaBeTh BarTholeT, noBody’s children: aBuse and neglecT, fosTer care drifT and The adopTion alTernaTive 7 (1999).
44 Josh Gupta-Kagan, Children, Kin and Court: Designing Third Party Custody Policy to Protect Children, Third Parties and Parents, 12 nyu J. legis. & puB. pol’y 43 (2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1119983.
45 Gupta-Kagan, supra note 14 at 927; Clare Huntington, Rights Myopia in Child Welfare, 53 UCLA L. rev. 637, 639-640 (2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=868542; Barbara Bennett Woodhouse: Ecogenerism: An Environmentalist Approach to Protecting Endangered Children,12 va. J. soc. pol’y & l. 409, 423 (2005), available at http://heinonline.org/HOL/Page?handle=hein.journals/vajsplw12&div=20&g_ sent=1&collection=journals.
46 Huntington, supra note 45, at 640-641.
47 Id. at 639-640.
Impact: Collected Essays on the Threat of Economic Inequality