Works in Progress Group # 3 Family Law: Termination of Parental Rights & Family Separation

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Session Type: Works-in-Progress

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Abolition For Family Freedom

Professor Hernandez's paper explores movements contesting family separation, their calls for abolition of the family regulation system, and presents a co-generative theory of family civil rights in conversation with movement actors. I consider three terrains of family separation: that of American Indian Alaskan Native families; of families in the state-based family regulation system; and of migrating families at the border and interior U.S. cCommunities. Groups impacted by each of these systems have organized to address the violent destruction of family ties, often drawing on the logics, strategies, tactics, and visions of the others. I closely study each movement’s campaigns, demonstrating how movements are learning and making connections with other movements to abolish oppressive systems, insisting on defining family for themselves, reconceptualizing support and care all while demanding respect for all forms of family in the face of devaluation and degradation.

Movements for family freedom have explicitly demanded changes in legal systems. From campaigns to create a Miranda-like warning in family regulation investigations, to ending the practice of terminating the legal parent-child relationship, movement demands target legal structures, seeking to abandon harmful practices and replace them with a slate of progressive policies. These campaigns sketch a different relationship between families, communities, the state and its shadows, and the market, reflecting the values generated through collective struggle under tremendous stress and precarious material conditions.


Private Termination of Parental Rights


Professor Smith's article examines the use of legal proceedings initiated by a private individual to terminate a person’s parental rights with respect to a child. In most states, courts can terminate a parent’s rights outside of the public child protection context to allow an adoption to proceed without that parent’s consent. Several jurisdictions permit a parent to file a termination of parental rights (TPR) petition against another parent under other circumstances as well, such as alleged abandonment or severe misconduct. Private TPR actions substantially interfere with parents’ fundamental constitutional liberty interest but often without the same procedural protections usually afforded to parents in dependency proceedings. Individuals pursue private TPR to obtain a private remedy, in contrast to the state-interest purposes of public child welfare agencies’ TPR petitions. The aArticle critiques the private remedy rationales—either stated or implied—for private TPR. While appropriate in theory, these purposes can, in many contexts, be served equally well through another route, without permanently severing the legal parent-child relationship. Alternatives to undoing parentage include non-exclusive adoption, de facto parentage, and minor guardianship, among others. Courts, attorneys, and policymakers should scrutinize private TPR laws and specific proceedings to consider whether such an alternative could address their aim. In those cases where TPR may be an appropriate outcome, courts must ensure that rigorous procedural protections—at least equivalent to those available in dependency proceedings—are extended to parents who are the subject of such petitions.