Family law scholars, activists, and practitioners have devoted increasing attention to state actions that separate hundreds of thousands of children from their parents every year in the United States. Many condemn laws that regulate child removal and foster care, finding current approaches insufficiently protective of children’s wellbeing. Commentators consider how reframing and strengthening children’s and parents’ rights may better ensure respect for family integrity. These accounts often include historical context that emphasizes continuity in the harmful, classist, and racist treatment of marginalized families.
In The Origins of Family Rights and Regulations, Professor Laura Savarese identifies a forgotten period in which parents’ habeas corpus litigation prompted the development of formal protections for the parent-child relationship. Predating canonical U.S. Supreme Court cases constitutionalizing parental rights (beginning with Meyer v. State of Nebraska (1923) and Pierce v. Society of Sisters (1925)), parents sued institutions to recover custody of their children and contributed to nascent understandings of parental rights.
The article relies on an impressive array of historical evidence, including case files, children’s institution records, newspaper articles, and judicial decisions. Savarese concentrates on New York, often a trendsetting location, and richly supplements this focus with materials from other states. Moreover, the article’s footnotes provide a bibliographic guide to scholarly literatures on the histories of welfare, juvenile justice, child placement, and related family law topics. The article enhances a growing body of historical scholarship focused on the legal treatment of parents and children in diverse contexts.
In Part I, Savarese describes how the creation of children’s institutions in the nineteenth century opened avenues for state control over family life and thereby prompted novel conflicts between parents and the state. In a series of laws enacted throughout that century, the New York legislature authorized courts to commit children to institutions for an array of status offenses, such as vagrancy, begging, or lacking “proper guardianship.” (P. 77.) This sweeping approach to conceptualizing parental neglect and juvenile delinquency soon spread to other states. Additionally, new laws permitted impoverished parents to surrender their children to institutions, in a period when families had access to few safety nets during difficult times. The managers of children’s institutions sometimes refused to return children when parents sought reunification.
These legal changes translated into more incidents in which parents turned to courts to demand return of their children. Savarese points out that the few published cases on this issue create the misleading impression that courts uniformly supported states’ power to remove children from their families and retain them in institutions. However, Savarese identifies a “legal countermovement” through close attention to previously overlooked habeas challenges. (P. 82.) In New York alone, lower courts heard hundreds of such cases in the 1860s through 1920s.
Part II turns to the consequences of parents’ habeas litigation, which prompted some of the earliest legal decisions squarely considering parental rights. Savarese identifies three categories of cases that reached state courts: (1) a parent disputing a child’s commitment to an institution, often on the basis that the parent did not receive notice or that the charges were insufficient to satisfy statutory requirements, (2) a parent seeking return of a child because the parent had addressed whatever financial or other problem led to the child’s initial lawful commitment, and (3) a parent challenging a child’s placement in a foster or adoptive home on the basis that the parent did not consent. While these cases had mixed results, they collectively led to the development of enduring principles and presumptions—including that parents have a right to notice and opportunity to respond to charges related to a child’s possible removal and that there should be a presumption of parental fitness to protect parents’ rights and children’s liberty.
In Part III, Savarese considers lessons this history offers for the family regulation system today. Savarese suggests that history supports modern scholars’ proposals to recognize children’s constitutional right to family integrity, an approach some state high courts have endorsed. She also observes that court-based strategies may prompt legislative and social change. She concludes, “The past illuminates both the value and limitations of litigation and lawyer-led reform, suggesting that more radical change, in the current day, will also depend on building the political power of parents and children who are most exposed to the harms of family policing.” (P. 128.)
While The Origins of Family Rights and Family Regulation is a thorough and valuable accounting of a crucial episode in family law, there is an angle that would be productive to explore further. In New York and many other states, most children’s institutions were private faith-based orphanages run for coreligionist children. Indeed, New York law required that children placed in institutions be matched by religion “to the extent practicable.” How might that setup have affected the cases and advocacy that Savarese identifies? There are a few hints in the article. For example, Savarese notes that the leaders of Catholic institutions were particularly vocal in favor of parents being able to use institutions as a safety net without fearing that their children would be placed in foster homes. (P. 114.) She also observes in a footnote that many of the New York cases she analyzes likely involved Catholic immigrants, based on available evidence. (P. 84 n.61.) Some petitioners received legal counsel through the help of Catholic charitable groups. (P. 84 n.61.)
In my own research, I found that that religious groups’ preferences and priorities were major drivers of child placement policies in the studied period. It was widely recognized that Catholic institutions held a disproportionate share of committed children in many large cities. In late nineteenth-century New York City, 80 percent of dependent children were in Catholic orphanages, even though Catholics comprised only around a third of the city’s population. New York’s Catholic Protectory was the largest orphanage in the country by 1900. Protestant charity reformers criticized these statistics, in part because of the portion of public funding directed to Catholic institutions. Some Protestant leaders claimed that the system of allocating per capita payments created a perverse incentive for Catholic institutions to accept and keep children who should be with their parents (a concern with strong modern resonance). Thus, the demographics and politics of religious groups are crucial context for the history Savarese so capably presents.
