In the standard story taught in typical Parents, Children, and the State or Children & the Law courses, analysis of parental rights has a clear beginning. In 1923, at the height of the Lochner era, in Meyer v. Nebraska, a case of first impression, the U.S. Supreme Court declared that “[w]ithout doubt” the Due Process Clause protected the right “to marry [and] establish a home and bring up children.” Two years later, in Pierce v. Society of Sisters, the Court recognized “the liberty of parents and guardians to direct the upbringing and education of children under their control.” But, in The Origins of Family Rights and Family Regulation: A Dual History, Laura Savarese demonstrates that the Court did not invent those rights. Rather, those cases followed a string of state court decisions from the end of the Civil War through the Progressive Era that established core legal protections for family integrity. Savarese’s work deepens our understanding of parental rights, helps protect those rights from potential attack, and informs legal advocacy to constrain the present-day family regulation (a.k.a. child protection) system.
Savarese identifies and fills an important gap in conventional understanding of foundational family law doctrines. The crucial rights that the U.S. Supreme Court would eventually articulate were born in parents’ resistance to the early family regulation system’s efforts to take and keep their children. That system empowered private institutions and organizations to house children who were found destitute or had been deemed neglected by their parents or delinquent. The family separations that resulted were largely upheld by state courts as lawful exercises of states’ parens patriae authority (a concept courts uncritically imported from English law), most famously in the Pennsylvania Supreme Court’s 1839 decision Ex Parte Crouse (4 Whart. 9). But, as Savarese points out, after the Civil War, parents began to succeed with state habeas petitions challenging children’s initial or continued commitment to these institutions because parents were denied notice of the charges against them or their children, or that specific cases violated statutory grounds.
These cases established elemental due process rights: procedural rights to notice and an opportunity to be heard on children’s placement and specific allegations (not vague assertions of delinquency or neglect), and substantive rules that parents maintain superior rights to foster parents and the system should often reunify families upon evidence of rehabilitation. (P. 21.) Each of these points is a foundational element of modern family regulation law, ratified by 20th century Supreme Court cases or statutes: In re Gault required notice of allegations against children in delinquency cases, Santosky v. Kramer required “fundamentally fair procedures” in termination of parental rights cases, Smith v. OFFER recognized parents’ superior status to foster parents, and federal law required states to make “reasonable efforts…to preserve and reunify families” (42 U.S.C. § 671(a)(15)(B)).
This litigation also generated some limited victories that also revealed troublesome elements of family regulation law that persist to this day. First, when parents sought to regain custody of children, they won rulings that courts could order children released over institutions’ objections, but that still granted trial courts wide discretion to determine whether and when to reunify families—discretion often used to deny parents’ requests. (Pp. 34-38.)
These cases also exposed the family regulation system’s predominant focus on poor families. The 19th century cases challenged the common law rule that parental poverty abrogated parental rights, leading courts to draw a line between mere poverty and neglect and delinquency. (Pp. 30-31.) That line later informed legislation in some states. (Pp. 53-54.) While these rules establish an important principle—poverty alone cannot justify separating a family—they failed to establish meaningful legal tests for distinguishing poverty from the often-amorphous concept of neglect. More optimistically, Savarese credits 19th century habeas litigation with helping inspire the social safety net expansion via early 20th century Progressive reforms; if poverty could lead to family separations, the state should help alleviate the most extreme forms of poverty.
Finally, these habeas cases indirectly led to the development of a pro-termination of parental rights (TPR) ideology. Some cases challenged the institutions’ efforts to place children for adoption and thereby terminate children’s relationship with their parents. Courts split, with some insisting that parents were entitled to due process before an adoption and others treating parents as obstacles to their children’s interests and upholding adoptions without so much as notice to parents of the adoption proceeding. (P. 48.) As a matter of due process, the former view has largely won out in the modern era. But Savarese aptly notes that the 19th century cases catalyzed the argument that once children are separated from parents, parents’ rights “frustrated efforts to place needy children in new homes” and were harmful to children. Savarese finds that view echoed in the much-criticized Adoption and Safe Families’ Act of 1997’s requirement that CPS agencies seek terminations on an expedited timeline, which has led to tens of thousands of TPRs annually. (Pp. 54-56.)
Savarese’s history also sheds light on two other doctrinal questions that resonate in the 2020s. First, establishing how 19th century courts widely respected parental rights helps explain why parental rights should remain secure post-Dobbs v. Jackson Women’s Health Organization. These “unenumerated family rights” (P. 50) are justified not only out of respect for the Supreme Court’s 1920s precedents (and those that followed) but because they can trace their origins more deeply into history and tradition. (This point builds on other scholarship, including Peggy Cooper Davis’s history of family integrity’s centrality to the 14th Amendment and Christine Gottlieb’s exploration of the “enduring vitality of Meyer and Pierce” post-Dobbs).
Second, Savarese explains how the 19th century cases recognized children’s right to liberty from institutional custody and to live with their parents, a formulation that presents children’s rights as reciprocal versions of parental rights. (P. 24.) Savarese thus provides strong doctrinal and historical support for a key principle: that children’s rights are not in tension with parental rights because the most fundamental children’s right is to be with their parents, supporting more contemporary arguments about children’s right to family integrity and contrary to efforts to use children’s rights rhetoric to drive a wedge between family members. (Pp. 51-52.)
