Children and the Law in a Nutshell
Authors:
Abrams, Douglas E. / Mangold, Susan Vivian / Ramsey, Sarah H.
Edition:
7th
Copyright Date:
2021
19 chapters
have results for children and the law
Chapter 2. Defining the Child-Parent Relationship 116 results (showing 5 best matches)
- Nonmarital children, however, presented different considerations. At early common law, a nonmarital child was considered the child of no one, had no surname at birth, and later acquired a surname based on reputation rather than lineage. As the law began granting nonmarital children a right to inherit from their mothers and to giving mothers custody and support obligations, however, nonmarital children began to receive their mothers’ surnames.
- Some statutes and decisions persist in using the cruel language of “bastard” or “illegitimate” to describe nonmarital children, but the past generation has seen constitutional and statutory law depart from the punishment and stigma that the common law imposed on these children. American law has now removed most distinctions based on a child’s nonmarital birth, but these distinctions still sometimes affect citizenship, child support, and intestate succession.
- Historically, the law saddled nonmarital children (that is, children born to unmarried parents) with the pejorative labels of “bastard” or “illegitimate,” and denied these children many family rights for their entire lives. Early in the nineteenth century, Chancellor James Kent stated the harsh common law doctrine this way: “A bastard being in the eye of the law [child of no one], * * * he has no inheritable blood, and is incapable of inheriting as heir, either to his putative father, or his mother, or to any one else, nor can he have heirs but of his own body.” Kent, Commentaries on American Law (5th ed. 1844). The law also treated unmarried parents’ rights differently than married parents. An unmarried father, for example, had no legal right to custody against the mother’s claim.
- As noted above, the common law presumed that a married man was the father of his wife’s children. Establishing paternity when a man was unmarried, however, was traditionally cumbersome and difficult. The combined efforts of the state and federal governments now have made paternity establishment a quick, routine administrative proceeding. The change came about because identifying, locating, and collecting child support from fathers of nonmarital children became high priorities for the federal government and the states.
- The UPA seeks to achieve legal equality by mandating that “[a] child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.” UPA § 202 (2002). The Comment to this section notes, however, that “the broad statement according equal treatment to a nonmarital child regarding his or her parents is not to be construed as eliminating all possible distinctions in all aspects of the lives of the nonmarital child and parents.” The Comment calls attention to Uniform Probate Code provisions that restrict some class gift recipients to nonmarital children who lived in the parent’s household. These provisions may have a disproportionate effect on nonmarital children, but “the disparity is not based on the circumstances of birth, but rather on post-birth living conditions.” Section 203 of the UPA states that “[u]nless parental rights are terminated, a parent-child relationship established under this [Act] applies...
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Chapter 8. Financial Responsibility and Control 145 results (showing 5 best matches)
- As a general rule, the child’s property should not be used to help fulfill the parents’ support obligation, unless the parent is destitute and cannot otherwise support the child. The parent may control the child’s property as a guardian but has a fiduciary obligation to manage the property for the child’s benefit, not for the parent’s. At common law, and by statute in some states, parents are entitled to their children’s wages and can use them to support the child or for any other purpose, but the child’s property belongs to the child. ( Chapter 9, Child Labor).
- When a child is living with both parents, the parents (whether married or unmarried) determine the level of support the child should receive, a function both of their substantive due process right to direct the child’s upbringing and of the law’s distaste for intervening in the domestic affairs of intact families. The law does not require billionaire parents to provide their child with an affluent lifestyle or a college education. Parents must provide only a minimally adequate level of care (including support) that avoids a neglect finding, and children have little ability or authority to force their parents to provide more.
- Minor children are not guaranteed a share of their parents’ estates. Parents may disinherit their children in all states but Louisiana, which follows the civil law tradition of allowing disinheritance only for cause. Children sometimes gain a measure of protection because a disinherited surviving spouse in a common law state is entitled to a forced share of the estate; in these days of multiple marriages and single parenthood, however, the surviving spouse might not be the parent of all the testator’s children and usually would have no obligation to support stepchildren.
- When a parent dies intestate (that is, without leaving a valid will), a surviving spouse and the decedent’s children typically receive the estate under intestate succession laws, which provide that children take equally, without regard to age or relative need. This “sibling parity” rule may be harsh on younger children or children with special needs, for whom the parent might have made special provisions in a will.
- As noted in Chapter 2, concern about rising welfare costs has produced extensive federal involvement in paternity determination and child support, beginning in 1975 with establishment of the Office of Child Support Enforcement in Title IV-D of the Social Security Act. Congress conditioned state receipt of related federal funds on compliance with federal law and passed new legislation requiring states to amend their child support laws extensively. Before these federal initiatives, state child support systems were in dire need of repair. Child support awards were frequently inadequate and erratic, varying from case to case for no clear reason. Noncustodial parents frequently failed to make child support payments, and no effective mechanism existed to compel and collect payment, particularly when the parents lived in different states.
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Chapter 6. Adoption 203 results (showing 5 best matches)
- The Compact prohibits individuals and entities, except specified close relatives of a child, from bringing the child to another state for foster or adoptive placement unless the sender complies with the Compact’s terms and the receiving state’s child placement laws. Before placing a child, senders must notify the receiving state’s compact administrator, who must investigate and, if satisfied, notify the sending state that the proposed placement does not appear contrary to the child’s best interests. The child may not be brought into the receiving state until notification is given. The sending agency retains jurisdiction over the child in matters relating to custody, supervision, care, and disposition until the child is adopted, reaches majority, becomes self-supporting, or is discharged with the receiving state’s concurrence. The sending agency also retains financial responsibility for the child’s support and maintenance during the placement period.
- Special-needs children may require expensive professional care and treatment that lies beyond the means of many prospective adoptive parents. To facilitate adoption of these children, federal and state laws provide financial assistance for adoptive parents who are willing to shoulder the responsibility. Some states also allow tax credits to adults who adopt special-needs children. Eligibility for this public assistance generally depends on the adoptive parents’ financial circumstances and the child’s special needs, and generally covers medical, maintenance, and special services costs.
- Joan and Peter Stanley lived together intermittently for eighteen years. When Joan died, their three children became wards of the state by operation of law and were placed with court-appointed guardians. As an unwed father, Peter was a non-parent—a legal stranger to his children—who held no right to a fitness hearing before the children’s placement.
- Compact violations are punishable under either state’s child placement laws, and may be grounds for suspending or revoking the violator’s license to place or care for children. The Compact does not specify whether violation may also be a ground for dismissing the adoption petition, and only a few decisions have entered dismissal orders for violation.
- Where the surviving stepparent wishes to adopt the deceased spouse’s child, the best interests of the child determine the outcome. If no competing petition is filed, the court would likely approve the adoption unless the stepparent appears unfit. If a relative also petitions to adopt the child, however, the stepparent may lose because the stepparent (like the relative) is a legal stranger to the child. The stepparent’s position would appear most tenuous where the law grants the relative a preference. On the other hand, the stepparent’s position would appear stronger if the child has resided with the stepparent for a significant period and if uprooting would likely cause the child emotional harm.
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Chapter 10. Delinquency 393 results (showing 5 best matches)
- The common law conclusively presumed that children under seven were without criminal capacity (and thus could not be convicted of a crime), created a rebuttable presumption of criminal incapacity for children between seven and fourteen, and held children over fourteen to adult capacity. The prosecutor could rebut the presumption by demonstrating that the child knew what he was doing when he committed the act, and knew that the act was wrong.
- Civil jurisdiction posed a greater conceptual challenge in cases charging delinquency, which displaced criminal prosecution and could deprive children of liberty. Civil delinquency jurisdiction appeared defensible, however, because the doctrine likened juvenile courts to the English chancery court, which had protected children in civil matters by tempering law with mercy for centuries.
- The National Council reports that shackling “can be traumatizing and contrary to the developmentally appropriate approach to juvenile justice”; “can negatively influence how a child behaves as well as the child is perceived by others”; and “promotes punishment and retribution over the rehabilitation and development of children.” NCJFCJ,
- “[A]uthoritative opinion has cast formidable doubt upon the reliability and trustworthiness of ‘confessions’ by children.” . Studies have shown that when confronted with false evidence against them, particularly young children are especially prone to giving false confessions to police or other interrogators, whom they view as authority figures.
- The “juvenile justice system” depends on the juvenile court’s interaction and active cooperation with various individuals and entities whose roles this chapter explores. These individuals and entities include juvenile officers and probation staffs, law enforcement, prosecutors, defense counsel, and federal and state legislators and policymakers. Also included are state and community juvenile corrections facilities, private sectarian and non-sectarian youth services providers, elementary and secondary schools, and federal and state agencies in such disciplines as child protection, mental health, and education.
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Chapter 1. The Status, Rights, and Obligations of Children 154 results (showing 5 best matches)
- Under the U.S. Constitution’s Supremacy Clause, a ratified treaty becomes the “supreme law of the land.” The treaty would thus override inconsistent state and local law as well as prior federal law. The potential effect of the 1989 Convention on the Rights of the Child on U.S. domestic law would be greatest on state and local jurisdictions because most of its articles cover status, rights, and obligations that are regulated by state law rather than federal law. Commentators have described the Convention’s covered rights as the three P’s: participation of children in society and in decisions affecting their own future; protection of children against discrimination, neglect, and exploitation; and provision of assistance for children’s basic needs.
- in disputes concerning their children generally, such as disputes concerning public school curricular decisions or the child labor laws. may strengthen the parent’s hand in disputes concerning family intimacy, but would not recalibrate operation of the abuse and neglect laws or other regulatory statutes affecting children.
- Following the Revolution, states assumed the common law authority held by the Crown. American law, however, extended protection of children well beyond the landed gentry. Justice Joseph Story’s influential equity treatise, for example, spoke of children generally: “[P]arents are intrusted with the custody of the persons, and the education, of their children; yet this is done upon the natural presumption, that the children will be properly taken care of * * *; and that they will be treated with kindness and affection. But, whenever * * * a father * * * acts in a manner injurious to the morals or interests of his children; in every such case, the Court of Chancery will interfere.” Joseph Story, Commentaries on Equity Jurisprudence § 1341 (3d ed. 1843).
- Throughout most of the nation’s early history, children were viewed as legal incompetents in family matters until they reached the general age of majority. . The law recognized almost absolute parental authority over children, and perceived children almost as the property of their parents, particularly of the father. The property analogy was not altogether inapt because children’s wages frequently had economic value to their parents before enactment of child labor and compulsory education laws. The analogy, however, was imperfect because the law allowed parents, for example, to sell or destroy their property but not to sell or destroy their children.
- The status of “child” thus remains a complex concept in American law. The law views children as vulnerable, incapable, and needing protection for some purposes, but as holding rights, decision making capacity, or personal responsibility for others. A person may be a child for one purpose, but an adult for another. A fifteen-year-old, for example, cannot sign a binding contract at common law, but may be tried in criminal court as an adult and sentenced to prison.
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Preface 4 results
- Like our casebook, this text addresses students who seek to learn about children and the law, and perhaps to explore prospects for careers in child advocacy. The text also addresses lawyers who may or may not have taken a juvenile law course, but who serve children as retained or appointed counsel, or as participants in law revision efforts. And the text addresses government lawyers, social services professionals, mental health professionals, physicians, parents and guardians, and others whose contributions to child well-being depend on familiarity with legal doctrine and policy considerations.
- This book explores the status, rights, and obligations of children throughout American law. We have written with an eye toward an audience with diverse needs for a learning tool, a refresher text, or a general reference work.
- Because Nutshells strive to provide a meaningful, yet succinct examination of doctrine and policy, we write with self-imposed limits on extended citations and extended discussions of particular judicial decisions, legislation, scholarly commentary, and statistical analyses. Readers seeking material beyond these limits might refer to the notes and commentary in our casebook,
- We anticipate treating new developments in this vibrant field of law in future editions of the Nutshell and the casebook. We would welcome comments and suggestions from readers who share our enthusiasm for the field and are kind enough to exchange ideas with us.
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Chapter 9. Regulation of Children’s Conduct 198 results (showing 5 best matches)
- In the early years, some state child labor acts imposed punishment on children whose work or employment violated the laws or led to truancy from school. Today, however, virtually no acts impose punishment on the child for violation. The evident policy determinations are that the child is a victim rather than a wrongdoer, and that enforcement against the employer sufficiently vindicates the legislative purpose.
- Even where alcohol beverage control laws exempt parents, a parent may face civil liability at common law or, as discussed below in Section 3, under a dram shop act or social host act if the child becomes intoxicated and causes personal or property damage. Parents also remain subject to endangerment and other criminal child abuse and neglect statutes.
- Child labor—work by, or employment of, children—is regulated by federal, state, and local legislation, each frequently refined by administrative rules and regulations. The Fair Labor Standards Act of 1938 (FLSA), et seq., is the major federal regulatory statute. Every state has a child labor act, and many local ordinances also regulate children’s work or employment. State child labor acts tend to follow a common pattern because many are modeled on the Uniform Child Labor Law, which the Uniform Law Commissioners first proposed in 1911. Because the FLSA does not impose federal preemption, a covered person is subject to the strictest standard—federal, state, or local—in a particular case.
- The parents’ right to their children’s earnings survives in many states today by common law or statute, though some states have abolished the parental right. But after the Depression, few children have worked to help support their families, and children have tended to work to save for higher education or to purchase clothes, automobiles, or other consumer goods.
- Even where general child labor regulation ends before the general age of majority, state law typically prohibits employment of children under eighteen in “hazardous occupations.” These occupations may be enumerated in the child labor act itself, in rules and regulations promulgated under the act, or in other statutes (such as ones regulating manufacture, sale, or use of fireworks or explosives).
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Chapter 5. Criminal Abuse and Neglect 184 results (showing 5 best matches)
- Child maltreatment cases may be referred to law enforcement authorities by child protective agencies, families, victims, physicians, schools, or other persons. Indeed, state abuse and neglect reporting acts typically require child protective agencies to share reports with law enforcement. Law enforcement investigates referrals and reports, usually with specially assigned investigators. The task is a significant matter because acts of child abuse committed by parents and other caretakers comprise about one-fifth of violent crimes against all children, and more than one-half of crimes against children two or younger, that are reported to police.
- The law is frequently slow to adapt to emerging technology. Some state prosecutors have moved against sexting by juveniles under statutes that criminalize production, distribution, or possession of child pornography. Or under statutes that criminalize sexual abuse or promoting a sexual performance by a child. Most of these laws were enacted after but before development of smartphones and other contemporary technology; the enactors intended to reach adults who exploit children, and not children who film themselves.
- “General child hearsay” exception statutes, however, may take a relaxed approach to unavailability. The child’s significant emotional or psychological trauma can render the child “unavailable” even if the child is sitting at home a mile away. The child’s reliable hearsay statement would be admissible, and the defendant would not have an opportunity to cross-examine the child who could otherwise be produced.
- concluded (1) that states have a compelling interest in “safeguarding the physical and psychological well-being of a minor,” and in “[t]he prevention of sexual exploitation and abuse of children,” and (2) that “the use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of the child” because “the materials produced are a permanent record of the children’s participation.”
- In child maltreatment cases, the purposes of the state’s civil and criminal intervention are related yet distinct. Civil intervention seeks to protect the child by treating the child and family and, when necessary, by removing temporary or permanent custody. Criminal intervention seeks to protect the child and others by prosecuting offenders. Civil proceedings focus primarily on the condition of the child and family; criminal prosecutions focus primarily on the defendant’s guilt or innocence.
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Chapter 3. Child Abuse and Neglect 199 results (showing 5 best matches)
- The complex child protection system can involve multiple agencies, courts, professionals and laws. States have four sets of laws dealing with abuse and neglect—reporting statutes, child protective statutes, criminal statutes, and social services statutes. Definitions of abuse and neglect may differ somewhat in each statute because the statutes serve distinct functions. In addition, Congress after CAPTA has exercised extensive control over state child protection and child welfare systems by requiring states to comply with various mandates as conditions for continued receipt of federal funds. Thus, lawyers and courts may need to interpret and apply state laws and regulations in the context of federal law.
- Dr. Henry Kempe’s identification of the battered child syndrome in 1962 was a catalyst for laws requiring physicians to report suspected child abuse to child welfare authorities or law enforcement. By 1967, all states had adopted such mandatory reporting laws. Within a few years, states had expanded the “mandated reporter” class to include other professionals—such as teachers and social workers—who have regular contact with children and are likely to be trained in the duty to report. Partly because of federal requirements, states have also expanded the kinds of maltreatment that must be reported. State laws still vary, however, concerning who must report, what must be reported, what agencies (social services or law enforcement, or both) receive mandated reports, what penalties may be imposed for failing to report, and what civil liabilities may arise from reporting or failing to report.
- In the early 1960s, child abuse attracted the attention of the media, the public, the medical profession, and lawmakers because of Dr. Henry Kempe’s landmark work on the “battered child syndrome,” which is discussed below in Section D. Responding to widespread public concern, states enacted laws that required physicians to report suspected child abuse to the state.
- , for example, the court found the Act inapplicable, but held that even if the Act did apply, the mother had suffered no discrimination because state law did not make developmental disabilities alone a ground for termination. An intellectually challenged parent, the court continued, could meet the four criteria for determining the best interests of the child under the termination statute: “(1) the interaction and interrelationship of the child with the child’s natural parents, foster parents, siblings, and others who may significantly affect the child’s best interests, (2) the child’s adjustment to home and community, (3) the likelihood the natural parent will be able to resume parental duties within a reasonable period of time, and (4) whether the natural parent has played and continues to play a constructive role in the child’s welfare.” Some states, however, appear to recognize the federal Act’s applicability.
- In 2010, the American Bar Association approved the ABA Model Access Act, which would require counsel for children in child protective proceedings and for low income parents when parental rights to residential custody are likely to be limited or terminated.
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Chapter 4. Foster Care 95 results (showing 5 best matches)
- In the typical foster placement, children live in private homes of foster parents licensed and supervised by the state under the foster care law. Because the foster care system is designed to provide temporary care in a non-institutional family setting, the law typically limits the number of children who may be placed in a single home. The state provides the foster parents a stipend for each child. The stipends vary widely by state, county and even by different providers within a county. Rates also depend on whether the child is classified as a child with “special needs” which may be broadly defined to include an older child, a sibling group, or a child with developmental or physical challenges.
- The foster parent-state relationship is generally regulated by state law, agency rules, and contract, with a heavy overlay of federal regulation. Since private non profit or for profit agencies often provide the care, the public agency’s role varies by location and contract. A contract with foster parents might detail the foster parents’ responsibilities and the decisions they may make, which usually include day-to-day decisions about the child’s food, clothing, homework, and similar matters. The state is expected to monitor the placement to assure that the child remains safe and receives education and other services. The child’s biological parents must comply with the state’s plan for regaining custody and usually may visit with the child. Once placed in state custody, the child may be moved through multiple foster placements or institutions, or may stay with one set of foster parents for a substantial time.
- The status, rights, and obligations of foster children, biological parents, foster parents, and the government are complex. A child may enter foster care because the parents have voluntarily relinquished custody to a state agency such as child protective services, or because a court has ordered the child’s removal from the parents’ care. In either event, the state agency then usually has custody, but biological parents generally retain the right to make significant decisions about the child, such as major medical care or adoption decisions. Under state laws codifying AACWA and ASFA, the state remains obligated to make reasonable efforts at family reunification. The state agency typically delegates some of its custodial responsibilities to the foster parents, thus splitting the responsibilities for the child three ways—with the agency, the biological parents, and the foster parents.
- The plaintiffs, for example, alleged that the New York City child protection agency failed to “(1) appropriately accept reports of abuse and neglect for investigation; (2) investigate those reports in the time and manner required by law; (3) provide mandated preplacement preventive services to enable children to remain at home whenever possible; (4) provide the least restrictive, most family-like placement to meet children’s individual needs; (5) provide services to ensure that children do not deteriorate physically, psychologically, educationally, or otherwise while in CWA custody; (6) provide children with disabilities, including HIV/children to return home or be discharged to permanent placements as quickly as possible; (8) provide services to assist children who are appropriate for adoption in getting out of foster care; (9) provide teenagers adequate services to prepare them to live independently once they leave the system; (10) provide the administrative, judicial, or...children
- In some states, foster children may be provided with an attorney or guardian for court hearings regarding placement, but the child’s voice may remain effectively unheard because of the ambiguity of the attorney’s role (discussed in Chapter 3) and counsel’s own inadequacies. Under federal law, states must assure that in any permanency hearing, “the court or administrative body conducting the hearing consults, in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child.” . This requirement, however, has been interpreted to allow “any action that permits the court to obtain the views of the child.” A report, for example, would be sufficient. “We do not interpret the term ‘consult’ to require a court representative to pose a literal question to a child or require the physical presence of the child at a permanency hearing.” Administration for Children & Families,
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Chapter 7. Medical Decision-Making 85 results (showing 5 best matches)
- Today the common law rule requiring parental consent prevails except where statutes or case law vest authority in the child or the state. As applied to adults or children in the medical treatment context (and as used in this chapter), the term “consent” means “informed consent”—a technical, contextual and jurisdiction-specific term that generally means that patients have been told such information as their diagnosis, the recommended treatment and alternative treatments, the risks involved, and the prognosis. Conflict among the potential decision-makers—parent, child, and state—raises the issues discussed in this chapter. To resolve these challenging medical decision-making cases, lawyers frequently need to elicit the expertise of professionals in medicine and other disciplines.
- The Affordable Care Act of 2010 provides free or affordable coverage to children and adults. The 2016 National Health Interview Survey by the Centers for Disease Control estimates that 5.1% of children under age 18 remain uninsured. cdc.gov. As this book goes to press, challenges to the law are before the courts.
- Except when a mature minor is involved, parental consent is sufficient and the minor’s consent is not also required. In , for example, the parents of a seventeen-year-old child who was suffering from muscular dystrophy and related serious illness executed a “do not resuscitate” order. After the child died, the parents sued the hospital, alleging that the child’s consent to the order was required. The court recognized the common law mature minor exception to parental consent and remanded the case for a determination of whether the child was mature. If the child was mature, the child’s consent was needed, but otherwise the parents’ consent was sufficient.
- With the COVID-19 pandemic raising awareness of public health, public health laws may impose mandates that frame the decision-making for parents and children. Many of these debates go beyond the scope of this chapter but will be highlighted where relevant to parent-child medical decisions.
- At common law, minors generally did not have capacity to consent to their own medical treatment. Instead their parents had authority to consent (or withhold consent) on the child’s behalf. Not surprisingly, the common law rule had a number of exceptions that authorized children to consent to medical care independent of their parents in some circumstances. In addition, parental authority could be transferred to the state when a court found that parental failure to provide or consent to medical treatment left the child neglected.
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Title Page 4 results
Center Title 1 result
Index 204 results (showing 5 best matches)
Dedication 3 results
Outline 203 results (showing 5 best matches)
West Academic Publishing’s Emeritus Advisory Board 16 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Dean and Joseph L. Rauh, Jr. Chair of Public Interest LawUniversity of the District of Columbia David A. Clarke School of Law
- Joanne and Larry Doherty Chair in Legal Ethics & Professor of Law, University of Houston Law Center
- John Deaver Drinko/Baker & Hostetler Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law and Dean Emeritus
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Table of Cases 15 results (showing 5 best matches)
Copyright Page 4 results
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- Publication Date: February 22nd, 2021
- ISBN: 9781647085810
- Subject: Children and the Law
- Series: Nutshells
- Type: Overviews
- Description: This thoroughly updated Nutshell follows the structure and format of the authors' popular casebook—Children and the Law: Doctrine, Policy, and Practice. The authors have devoted entire chapters to the meaning of "parent," civil and criminal abuse and neglect, the foster care system, adoption, medical decision-making, support and other financial responsibilities, protective legislation, and delinquency. Representation of children is covered throughout the book. Also treated for comparative purposes are several relevant international law issues, including the UN Convention on the Rights of the Child, international child labor, and U.S. tobacco exports. The impact of the COVID-19 pandemic on child protection, foster care and juvenile justice systems is integrated into this edition.