Document Type


Journal Title

Harvard Civil Rights - Civil Liberties Law Review



Publication Date

Summer 2021


Every day in the United States, the government separates children from their parents based on their parents’ immigration status, incarceration, or involvement in the child welfare system—and the children have no say in the matter. The majority of these families are racial minorities and economically underprivileged.

Under current law, children’s ability to assert a constitutional right to keep their families free from government intrusion is not always apparent. This is in part because a single piece of Supreme Court dicta has muddied an otherwise clear family integrity doctrine, and many federal circuits are silent on the issue. Further, many children’s advocates fail to assert this argument in court, or children appear without advocates at all. Accordingly, the law remains stagnant.

Under Fourteenth Amendment due process jurisprudence, parents have a well-established fundamental liberty interest in their relationship with their children. Parents can therefore forcefully assert a constitutional violation when the state seeks to infringe on their familial relationship through the child welfare, criminal, and/or immigration systems. A child’s assertion of the same right, however, has not been used with the same effect. As a result, the state is able to harm children without adequate constraints on its power. The recognition and assertion of a child’s enforceable constitutional right to family integrity is necessary because, without it, courts may make decisions about what is in a child’s best interest without hearing from the child herself, without considering and addressing any conflicting interests between the parent and the child, or on the basis of an incomplete record because the parents did not or could not assert their right to family integrity. As a result, children are often unintended victims of the legal systems targeting their parents. In these systems, children are frequently separated involuntarily from their families because of an allegation of neglect or abuse, a conviction or plea leading to incarceration, or a deportation proceeding against their parent. Without asserting her constitutional right to family integrity, a child has little power to stop her family’s separation.

This Article is the first to argue that children should assert their right to family integrity in legal proceedings against their parents that could result in the destruction of their family units. It comprehensively examines the legal, theoretical, and international law principles that support such arguments.

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