Constitutional Constraints

A substantial underpinning of laws affecting minors is the presumption that children are the property of their parents and, as a result, great deference is given to the parental/legal guardian role.³ In a recent United States Supreme Court case involving visitation rights of children, ``Justice Stevens reproached the plurality for suggesting that children are chattel.''<sup>4</sup> In his dissent, Justice Stevens stated that parents often view their children with a possessory interest, writing, ``parents serve the best interests of their children but - `even a fit parent is capable of treating a child like a mere possession'.''⁵

When minors are faced with the challenges of homelessness, their rights are often infringed upon, if not forgotten. However, a great deal of confusion and inconsistency in granting and confirming rights to homeless minors is a result of the vagueness of the law, because ``[t]he issue of exactly what rights children have under the Constitution remains unclear.''<sup>6</sup> There is the additonal question of who will actually protect those rights. Further questions inherent in affording minors legal rights are: ``[a]t what age should society first accord a child particular legal rights, [and] [a]t what age should society recognize a child to be autonomous for the purpose of making certain kinds of legal decisions.''⁷ Ironically, the very rights of a minor in question may not be represented in court, since minors often face obstacles in obtaining legal counsel for non-criminal matters.⁸ The deeply rooted reluctance to ``place protection of children above the liberties of biological parents and the policies of state legislators'' underlies the legislature's and judiciary's hesitance to allow minors access to the legal system.⁹ Also, some critics feel that granting counsel to minors would result in inconsistent application of law.¹⁰

Footnotes

...³

Crocker v. Pleasant, 727 So.2d. 1087 (Fla. 4th DCA 1999).

...⁴

36 Harv. Civ.Rights-Civ. Libs. L. Rev. 225, 240 (2001), citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000) (Stevens, J., dissenting) (suit of a mother to limit visitation rights of her children's' biological grandparents).

...⁵

Id. at 239, citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2071 (2000).

...⁶

Jay C. Laubscher, Student Author, Note: A Minor of ``Sufficient Age and Understanding'' Should Have the Right to Petition For the Termination of the Parental Relationship, 40 N.Y.L. Sch. L. Rev. 565, 572 (1996).

...⁷

Martin Guggenheim, Article: The Right To Be Represented But Not Heard: Reflections On Legal Representation For Children, 59 N.Y.U. L. Rev. 76, 84 (1984).

...⁸

Laubscher, supra n. 7, at 575.

...⁹

36 Harv. Civ.Rights-Civ. Libs. L. Rev. 225, 251 (2001), citing Elizabeth Bartholet, Nobody's Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative, 35-36 (1999).

...¹⁰

Guggenheim, supra n. 10, at 77; Alessia Bell, Student Author, Public and Private Child: Troxel v. Granville and the Constitutional Rights of Family Members, 36 Harv. Civ.Rights-Civ. Libs. L. Rev. 225, 274 (2001) (using best interest of child standard in legal proceedings has yielded ``at best inconsistent results.''