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Home Archive Volume 65 Volume 65, Issue 3 COMMENT: How Dramatic Shifts in Perceptions of Parenting Have Exposed Families, Free-Range or Otherwise, to State Intervention: A Common Law Tort Approach to Redefining Child Neglect
COMMENT: How Dramatic Shifts in Perceptions of Parenting Have Exposed Families, Free-Range or Otherwise, to State Intervention: A Common Law Tort Approach to Redefining Child Neglect

By David Manno | 65 Am. U. L. Rev. 675 (2016) 

Parenting norms have shifted dramatically in recent years, favoring overprotection over traditional notions of childhood independence.  This shift has permeated vague and overbroad legal standards governing child neglect, allowing parents to be held civilly and criminally liable despite the absence of harm to their children.  Indeed, parents who allow their children to remain unsupervised, whether as a lesson in independence or not, are at risk of removal based on subjective decision making processes that largely favor overprotection.  Because this shift conflates neglect with non-conformity, those who favor traditional notions of child-rearing are unlikely to implement their own parenting style out of fear of intervention.

Despite the increased risk of removal, the Fourteenth Amendment presumes parents fit and protects their interest in raising their children.  With this constitutional precept in mind, legislatures should incorporate a more objective framework into child neglect statutes.  Adopting a hybrid economic and foreseeability tort structure to balance against contextual aggravating or mitigating factors will help elucidate a fairer framework that will limit discretion and promote uniform enforcement of child neglect laws.

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