Choosing a Home: When Should Children Make Autonomous Choices about Their Home Life?
Baldwin, Sarah J., Suffolk University Law Review
"The law of children has developed in a patchwork and inconsistent fashion. Decisionmakers including Congress, state legislatures, the Supreme Court, and state courts have created laws and decided cases without a comprehensive vision of what it means to be a child or how children think and behave." (1)
A sixteen-year-old female may decide to give birth and become a mother, but she cannot independently obtain an abortion or marry the father of her child. (2) A young mother may relinquish rights to her child without judicial intervention, but that same teenager may not decide independently with which parent she wishes to live. (3) The passage of the Twenty-Sixth Amendment highlighted inconsistencies in the law that allowed eighteen-year-olds to fight for their country but deprived those same individuals of the right to vote for the politicians who sent them to war. (4) Although this debate changed the way many individuals feel, society has failed to fully integrate young people into the legal and social worlds currently populated only by adults. (5) Similar inconsistencies still remain regarding minors' abilities to choose with whom they wish to live. (6)
The United States Supreme Court decided Meyer v. Nebraska (7) in 1923 and established the fundamental rights to marry, to establish a home, and to raise children. (8) By 1944, the Supreme Court limited these rights for minors in Prince v. Massachusetts (9) Since the Prince decision, a patchwork of federal and state laws has impacted a minor's right to determine his or her living situation. (10) The time has come to make sense of the patchwork and provide consistent results for minors in the family-law system. (11)
Scholars, judges, and the general public have offered a multitude of reasons for limiting minors' rights to make decisions about their home-life, including: promoting socialization and education; guaranteeing sufficient care; pursuing family interests; implementing normative models of proper behavior; and supporting and protecting minors. (12) These reasons, however, do not explain inconsistencies in laws allowing minors to make some family-law decisions and taking away those rights with regard to other decisions. (13) This Note calls for consistency in the treatment of minors and explores how the law treats minors in four family-law subject areas: marriage, adoption, custody, and abortion. Part II investigates the historical foundations of the belief that minors lack capacity to make important decisions. (14) It then goes on to discuss the historical development of minors' treatment with respect to autonomy and decision-making ability. (15) Part III suggests potential solutions for creating consistency in the law and discusses possible criticisms of those suggestions. (16) This Note ultimately calls for consistency in the law regarding minors' capacity to make decisions about their home lives. (17)
Historically, adults have viewed children as lacking capacity for rational choice. (18) Capacity "is founded on the ability to think rationally, form plans, and make choices." (19) The law presumes a cognitively competent individual can make decisions in his or her best interests. (20) It remains unanswered whether or not this common belief should lead to an assumption that children under a certain age lack capacity, but current law restricting a child's right to make a decision assumes children are not competent to make those decisions. (21) Researchers differ in their opinions about how and when children develop capacity for choice. (22) Some claim children as young as age four or five can engage in causal reasoning and therefore have capacity to act rationally. (23) Slightly older children have been found to identify risks of treatments and make "adult-like" decisions even if unable to completely evaluate risks and benefits as adults would. (24) Other research suggests children between infancy and age eight have rational thoughts about the closeness of their relationships with their parents, each parent's ability to spend time with the child, the day-to-day stability of each parent, and the degree to which each parent provides care. …