Saturday, October 23, 2021
The parent-child relationship is one of the most valued and protected relationships in constitutional and family law. At the same time, the state has custodial power over children: a power that is necessary in some cases to protect vulnerable children from danger, neglect, and abandonment. But because the parent-child bond is so powerful, state actors can be tempted to exploit it for their own purposes. Custodial power over children provides state actors with the means to put pressure on the parent by threatening to remove the child. In these circumstances, the state uses the child as a bargaining chip to be traded for other rights, irrespective of the child’s wellbeing. Misuse of the state’s custodial power is harmful for two main reasons. First, children are harmed when separated from their parents. Second, parents are harmed by the separation because they are forced to choose between the exercise of two fundamental rights: custody of their children and individual liberty.
This Article focuses on the question of how the law should distinguish between the state’s exercise of its custodial powers for permissible grounds, such as to protect the child, and its exercise of custodial powers for impermissible grounds, such as to induce the parent to give up another right. To answer this question, this Article first demonstrates that the state is, in fact, putting pressure on parents by deploying its custodial power. The Article identifies three areas of law—immigration, criminal confessions, and child welfare—in which this occurs. In each of these situations, I argue that consideration of the child’s wellbeing should be a formal legal requirement. The Article then proposes a constitutional test for scrutinizing a state’s separation, or threat of separation, of the parent and child. This test is designed to reveal what I term “impermissible leverage.” The principles articulated in the impermissible leverage test can be incorporated into state and federal statutes, as well as into the regulation of agencies tasked with child removal. The Article concludes with possible remedies when acts of impermissible leverage do occur.