Most parents probably don`t worry much about waking up some morning to find themselves on the wrong end of a lawsuit filed by their children.
At least not yet.
But continuing change in the way judges view the legal rights of children could mean that family matters once aired around the kitchen table will be decided instead in a courtroom.
Though no one questions the need for judicial intervention to protect children from serious abuse or neglect, some legal experts worry that the courts must be careful not to step too quickly into routine conflicts like those between teenagers and parents. They also worry that the courts increasingly are being asked to resolve family problems that judges are not really qualified to decide.
Courts in recent years have been asked to consider a child`s best interests in deciding whether a divorced parent with custody can move to another state, and to allow children to force a divorced parent to pay their college expenses. In April, an Illinois Appellate Court ruled that a 17-year- old girl, legally an adult, could pursue litigation against her father in an attempt to force him to live up to a promise, made in a divorce decree, to finance her college education.
One of the more celebrated cases, though, is in Florida, where a judge earlier this month allowed an 11-year-old boy to pursue a lawsuit seeking a
”divorce” from his parents so he could be adopted by the foster family with whom he had been living.
Local legal experts suggest that the Florida case is as much about marketing as legal precedent-they say that describing the proceedings as an attempt to ”divorce” one`s parents sounds a lot flashier than calling it a termination of parental rights, which is hardly an unusual procedure in juvenile courts across the country.
What is unusual is that the judge decided the boy, identified only as Gregory K., had the same constitutional rights as an adult to protect his fundamental interests in court.
In this case, the fundamental interest is his right to escape alleged neglect and years of inaction by the state agency that was supposed to protect his interests.
But neglect often results from poverty. Do children then also have a fundamental right to bring litigation to escape from a shabby apartment? From loving but poverty-stricken parents?
Could a child seek to terminate parental rights and opt for foster parents with a Nintendo and a back-yard pool?
The same sort of difficult questions are being raised by a legal battle under way in Cook County Juvenile Court over the fate of a 15-year-old Wilmette girl involuntarily sent to Japan to live with her grandparents.
It may seem unfair for a teen, born in Japan but who speaks no Japanese, to be sent by an adoptive mother with whom there had been friction to live with grandparents who speak no English. But what if the next court case involved a teen seeking to veto the move of a parent transferred to a job in another country or another city?
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”It would be the worst idea in the world if you gave children the right to sue,” said Burton Grant, a veteran Chicago attorney and matrimonial-law expert.
”Every parent would have to be on guard for fear of reprisal if they didn`t let their child go out or had grounded them. The overall harm would far outweigh any kind of benefit.”
But Cook County Public Guardian Patrick Murphy says the focus ought not to be on children`s rights but rather on whether parents are living up to the irresponsibilities.
”What we`re seeing today is so much irresponsibility,” Murphy said.
The litigation involving the Florida boy and the Wilmette girl remain pending.
The girl returned to the Chicago area last week.
The judge`s ruling in the Florida case only allows the boy to pursue his lawsuit; it doesn`t guarantee that he will prevail.
The Cook County case is complicated by allegations of financial shenanigans.
”There`s all kinds of things going on here,” Murphy said. ”The child and parent are at each other`s throats. Does the parent have the right to ship the child off to a place that is foreign to her? They sent her to a foreign culture when she didn`t want to go.”
Whatever the outcomes in either case, it`s clear that children are gaining a greater voice when courts are called upon to decide what is in their best interests.
The notion that a child`s best interests ought to be considered in making custody decisions is itself relatively new.
”It took decades before the judicial system took cognizance of the fact that a child was entitled to have his or her best interests protected by a court of law,” wrote California lawyer Christian R. Van Deusen in a 1991 law review article.
H. Joseph Gitlin, a Woodstock-based attorney with expertise in family law, says child-custody law has evolved over the past century. As late as 1920, in an era when child labor was important to farming economy, an Illinois court ruled that children belonged to the father, Gitlin noted in a 1991 article in the Illinois Bar Journal.
In ruling last year on the highly publicized controversy over the fate of a girl known in legal circles as Ashley K.-but called ”Sarah” in many news reports-the state Appellate Court said the best interests of a child ought to be given greater weight than those of the biological parents in determining custody.
Benjamin Wolf, a lawyer for the American Civil Liberties Union in Illinois who has been involved in children`s rights issues, said that what is happening now is not so much a redefining of legal notions about the best interests of children, but rather a greater willingness to hear the child`s own views.
”There`s agreement,” Wolf said, ”that children ought to be heard and are entitled to representation-and that their wishes ought to be taken into consideration when they are old enough to have firmly held views, when there`s evidence of maturity. But that`s different than saying the child`s view should prevail.”
Defining exactly what is meant by the ”best interests of a child” also is a problem. Is it living in a nice home? Living with those who can best meet the child`s material needs? Is it living with guardians-parents or foster parents-who are of the same race or religion?
”Generally `best interests of a child` is a terrible legal standard: It gives judges unfettered freedom to do whatever they want,” said Mary Becker, a law professor at the University of Chicago who has written on family law issues.
The danger, according to some legal experts, is that judges can lose sight of what is in a family`s best interest and the need to preserve families if they focus too narrowly on the child`s interests.
Becker and others also note that deciding what is in the best interests of a child requires judges to make guesses about the future-something judges are no better trained to do than pundits of any persuasion.
Harvey R. Sorkow, the former presiding judge of Bergin County family court in New Jersey and the judge who presided over the ”Baby M” case, wrote in a 1991 law review article:
”From a judge`s concerned position, only the passage of time and the development of the child will determine if the trial judge was correct in defining the `best interest of the child.` ”