n The Solution: Fair Start Orders | Having Kids

Updated March 25, 2018

Taking Child Abuse Seriously Through Better Family Planning

Two parents left their nine-month-old twin daughters, who each weighed about eight pounds when investigators found them, to starve to death in playpens filled with maggots. The couple told authorities they felt overwhelmed taking care of the children while working long hours.

A parent and others abused a five-year-old boy over the course of several months, beating the boy so severely that he suffered two strokes and had multiple broken bones. He had been locked in a room, bound with duct tape over his eyes, and struck with belts and a hammer.

Parents tortured and killed their three-year-old, who died from blunt force trauma to the stomach. There was evidence they had previously used torture as punishment, as investigators found whip marks, cigarette burns, and fingernail gouges.

These are just a few of the endless stories of children, tortured and killed by their own parents in the past year alone.

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National statistics, despite underreporting, estimate that 1,670 to 1740 children die from parental or caregiver abuse and neglect in the U.S. annually. And many of the perpetrators continue to have and abuse additional children.

We can prevent these horrors by focusing on the root of the problem: a one-sided, inequitable family planning model that prioritizes a parent’s desire for as many children as he or she pleases, and at any time and place in the parent’s life, over a child’s most basic needs. This model of family planning isolates parents in their decision-making, prevents cooperation that could help close the gap between rich and poor, ignores the massive impacts family planning has on our natural and social environment, and has prevented progressive reforms over the past several decades.

Recognizing that studies continue to link child abuse to poor family planning, as well as the fact that our after-the-fact public child welfare systems are a failure, Having Kids proposes a new family planning model that balances the interests of parents, future children, and the community in accordance with fundamental human rights and constitutional principles.

In the process of family planning, future children as well as other species stand out – more than parents – as the most vulnerable entities. We need a family planning model that protects them.

Such a foundational change in the way we plan families will require a multipronged approached aimed at all levels of government through a diverse coalition of nonprofits and community members who understand and appreciate that family planning is the most effective means of maximizing child welfare, promoting equality, strengthening democracy, halting climate change, and saving endangered species, including our closest biological kin.

However, it is in the context of serious child abuse and neglect cases that the horrific consequences of the current family planning model become most stark and widely objectionable. And as such, it is in this context that widespread norm change is most likely. Any serious attempt at modifying the underlying norms that continue to spur unsustainable population growth must include proactive child welfare interventions, with measurable changes in our legal regime that actually further children’s interest. Changes here can act as a litmus test to show that we take reform seriously.

Having Kids has designed such an intervention, called a Fair Start court order. The order is described in detail below, and each would ideally – but not necessarily – be authorized by a complimentary model state statute. Having Kids is also in the process of developing these statutes.

Fair Star orders are the beginning of changing family planning models, from an old model focused on what parents want in the short term to a new model focused on what children need in the long term. For Having Kids, this is where child-first family planning reform, and fundamental norm change, begins.

Fair Start orders are not punitive. They are the equivalent of a restraining order meant to protect future children, and allow for the rehabilitation, rather than the setting up for failure, of troubled parents.

The Fair Start model order is designed to be used in egregious cases of abuse and neglect, and consistent with progressive reforms of criminal justice, should be applied while accounting for historic structural inequities of race, class, gender, and national origin. They should be applied with the recognition that all children deserve a fair start in life, with equitable opportunities in life relative to other children in their generation, and with the recognition that ensuring that start in life would address the disparities of class which may be the most oppressive aspect of our current family planning system. Most importantly, the order discourages the use of coercion of any kind, but instead relies on its expressive legal force and any appropriate non-coercive and collateral interventions, like the appointment of guardians ad litem for future children.


The Obvious Problem: A Pipeline from Poor Family Planning, to Abusive Homes, to Horrific State Systems

Rather than focus on interventions before parents have children, the state’s go-to solution in the gruesome stories described above has been to wait until a child has been repeatedly abused before shuffling that child (if he or she is still alive) into (often failing) state child welfare systems. And the state systems themselves are not always an improvement, with many of them being “grossly underfunded, under-resourced and understaffed.”

The recent opioid crisis in the U.S. has only accelerated the problem. State child protection systems around the country are in crisis, with multiple state systems failing and clear linkages to increased child abuse. Foster care cases involving drug-using parents have hit the highest point in more than three decades of record-keeping, accounting for 92,000 children entering the system in 2016, according to data by the U.S. Department of Health and Human Services.

And while increased funding to overhaul the child welfare system would help to alleviate some of the strain on welfare agencies that alone would be manifestly insufficient, since it would still require child abuse as a precondition for intervention.

The current approach is perhaps the worst example of a lose-lose system one could imagine, with parents, children, and the community all being made simultaneously worse off in the process. And this is happening in the context what is perhaps the most important collective interest of all – the creation of future citizens, and through them, the constitution of the future state itself. This must change.


The Most Effective Solution: Child-first family planning

The current model of family planning ignores the thoughtful, carefully constructed, and limited right to found a family ensured by the Universal Declaration of Human Rights and instead ensures a would-be parent the unfettered right to have as many children as he or she wishes. The model allows us to exploit future children by eliminating any fair and equitable minimum standard or threshold for their entry into the world, which in turn has allowed states to encourage and harness the resulting explosive population growth (to the detriment and mass-extinction of the nonhuman world) that comes with treating future children as consumers, taxpayers, and cheap future labor. It is easy to externalize the costs on the voiceless, rather than do the hard work of cooperative and equitable family planning.

What appears to be a beneficent expansion of freedom for parents is a contraction of welfare and freedom for future children, as well as the community they impact and will eventually comprise. By excluding minimum thresholds for future children, it also sets the parents themselves up for failure, as in the many cases of child abuse and recidivist child abuse discussed herein. The current model is also based upon a faulty assumption: That all would-be parents at all times have an equal and compelling interest in having additional children. In fact, parents in the cases described herein have no objective and countervailing interest in having additional children, and instead an objective interest in delaying parenthood as part of their rehabilitation.

This model, which treats would-be parents and families as isolated unites with no impact on or obligation to each other, is not really a form of family planning at all because it does not include any substantive guides around which plans can be made, and no mechanism around which families and communities can work to actually make such plans. Worse yet, this model limits collective action to improve outcomes, as policymakers incorrectly perceive an impenetrable realm of personal privacy around family planning decisions that prohibit cooperative action.[1]

In contrast to the current model, child-first family planning would adopt a holistic approach that addresses the rights of parents, prospective children, and their communities, and as such fully integrates the objectives of human rights. In a world where having children is not merely the default option, but accurately recognized as the most important decision of our lives, families may then work together with the support of policymakers to plan a fair start for every child through smaller, sustainable, and truly democratic communities.

Key steps toward implementing this child-first model include, for example, working to make long-term reversible contraception free and available to teens and those in need, improving local climate change policies by including child-centered family planning measures, and laying the groundwork to urge the United States, European Union, and United Nations to comply with the best construction of the Universal Declaration of Human Rights, and its most fundamental promise of “right to found a family.”


One Vital Tool: Fair Start Orders That Prevent, Rather Than React To, Child Abuse and Neglect

In a landmark case, one state supreme court approved as constitutional a court order preventing a recidivist defendant from having more children until he was able to care for them.

Fair Start judicial orders like these, which prevent abusers and neglecters from having more kids, are a vital part of the process for changing the way we plan families. Such orders are consistent with human rights, constitutionally sound, and morally obligated.

New York’s highest court has noted that “parental ‘rights’ are not so much ‘rights’, but responsibilities….” a principle that a subsequent court relied upon in concluding that “a parent has the responsibility to rear his or her children, but not an unlimited right to bear children irresponsibly.” In re V.R., 6 Misc. 3d 1003(A) (Fam. Ct. 2004) (quoting Bennett v. Jeffreys, 40 N.Y.2d 543 (1976)). Moreover, in California, Fair Start orders were envisioned and virtually called for in the case of People v. Zaring, 8 Cal. App. 4th 362, 374, 10 Cal. Rptr. 2d 263, 271 (1992)

In the international human rights context as well, the “right to found a family” is necessarily limited by competing rights and correlative duties. See, e.g., Universal Declaration of Human Rights, arts. 29, 30 (recognizing that rights must necessarily be limited by others’ rights and by the general welfare); Article 5, International Covenant on Civil and Political Rights) (“Covenant”) (“Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.”); see also Article 24(1) of the Covenant (establishing a child’s right “to such measures of protection as are required by his status as a minor on the part of his family, society and the State.”[2] [3]

And yet, notwithstanding the strong domestic and international law bases for Fair Start orders, the orders are not commonly used or understood, largely because we live under the paradigm of the current family planning model, in which the decision to have kids is focused on what parents want in the short term rather than what each child needs in the long term.

One way to change this is by developing a model order and advocating for its implementation via legislative enactment,[4] regulation, municipal law, etc., and/or for the order to be applied as new cases arise, with certain guiding principles:

  • These orders should be used in egregious cases of abuse and neglect only.
  • These orders should not include coercion of any kind, but instead rely on their expressive force and any appropriate non-coercive and collateral interventions, like the appointment of guardians ad litem for future children.
  • Use of these orders should account for the historic structural inequities of race, class, gender, national origin, etc. They should be applied with the recognition that all children deserve a fair start in life, with equitable opportunities in life relative to other children in their generation, and with the recognition that ensuring that start in life would address the disparities of class which may be the most oppressive aspect of our current family planning system.
  • These orders should account for the fact that the right to have children is morally and legally satiable and diminishes with each child defendants have. That satiability is a moral fact, and when recognized in law and practice allows for cooperative family planning that simultaneously promotes child welfare, equity, participatory democracy, and protection and restoration of the natural environment.
  • Advocacy for these orders should be accompanied by calls – including by courts – for specific legislation, funding, and resource reallocations that address the underlying problem in family planning, and the need for new modeling.

Below is one such order, which courts are free to adopt and modify with the requisite level of detail and rationale as new cases of abuse and neglect arise.

Plaintiff,

v.

Defendant.

Case No. _________________

Judge ________________

JUDGMENT ENTRY

IN THE COURT OF _______________________

ADDITIONAL CONDITION[S] OF [COMMUNITY CONTROL/PROBATION]

Adults possess a presumptive right to conceive children.This right diminishes when one has borne one or more children and severely abused or neglected them. The right may be suspended temporarily to fulfill the state’s compelling interest in protecting future children, and to protect defendant’s interest in successful rehabilitation. Defendant’s criminal conviction for child maltreatment is clear evidence of unfitness to parent at this time. To release Defendant into the community now would risk creating a situation in which another child is in danger of similar maltreatment at Defendant’s hands. That risk is sufficient reason for the state to refuse Defendant’s request for [community control/probation]. Thus, this court operates within its proper discretion by granting Defendant’s request only conditionally, contingent upon Defendant’s acting to avoid that risk, as it might do with any other risk posed by a convicted criminal.

As an additional condition of [community control/probation] this court hereby orders Defendant to avoid [impregnating a woman/becoming pregnant] during the duration of the [community control/probation] period.

Violation of this order will result in [extension of the [community control/probation] period, an order requiring community service, educational and training requirements, additional actions by this court to ensure the Defendant’s rehabilitation, etc.]

This order is reasonably related to Defendant’s offense, risk of future re-offense, and necessary rehabilitative efforts, which will require devoting substantial time to counseling and other services targeting Defendant’s demonstrated propensity for maltreating children.

This order serves the State’s compelling interests in preventing harm to future children. Further, this order in no way requires or condones abortion in the event of a pregnancy during the course of the order’s applicability.

This condition is effective upon service of a copy of this order upon Defendant.

IT IS SO ORDERED.

Dated:                                                                      _____________________________

These orders may be modified for parole as well. Having Kids can assist state agencies and courts in researching, developing, and using these orders. Furthermore, we can advocate for the associated legislation, regulation, municipal law and funding necessary to make them prevalent and accepted.

Fair Start orders are a win-win, promoting all of the relevant interests at stake.

For more information please read this comprehensive report, publication forthcoming.

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[1] The existing flawed model is further entrenched by pronatalist policies whereby wealthy and middle class families in the U.S. are incentivized to have more children via the earned income tax credit and dependency exemptions, whereas as those poor families who need the financial assistance receive neither benefit.

[2] Unlike other rights contained in the Covenant, the right to found a family can be derogated, see art. 4, and lacks the stipulation common to other rights that it not be unlawfully restricted. See e.g., art. 22 ¶¶ 1-2 (stipulating, in the context of “the right to freedom of association with others,” that “[n]o restrictions may be placed on the exercise of this right other than those which are prescribed by law”)..

[3] While some nonbinding sources of international law do implicate a broader procreative right, even these nonbinding sources qualify a parent’s right to have as many children as she wishes by specifying the manner in which that right should be exercised. See United Nations: Report of the International Conference on Population and Development, UN Doc No A/CONF.171/13, Cairo, Egypt, 5–13 September 1994 (18 Oct 1994) (“In the exercise of this right, they should take into account the needs of their living and future children and their responsibilities toward the community.”); see also Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968)(“ Parents have a basic human right to determine freely and responsibly the number and spacing of  their children…”) (emphasis added).

[4] In California, for example, Fair Start orders could be authorized with a simple amendment to Cal. Welf. & Inst. Code § 362(d).

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