Child Welfare Law in the United States

by

Susan Vivian Mangold

• LAST REVIEWED: 27 June 2017
• LAST MODIFIED: 27 June 2017
• DOI: 10.1093/obo/9780199791231-0100

Introduction

Child welfare law is the legal response to child abuse and neglect. Legal responses emanate from a particular historical and cultural context. This article is focused on the legal response of the United States to child abuse and neglect, and the categories reflect the relevant American legal categories. This comprehensive listing of US sources provides information and background useful to any setting, but it draws primarily from the American experience. Child welfare law encompasses any area where the state acts as parens patriae (in the role of the parent) to a child, usually through a public/private child welfare system. This is sometimes referred to as public family law, since the state is an active participant in what is otherwise a private set of relationships between the parents and child. If someone outside of the family abuses a child, the criminal law may respond, but child welfare law usually refers to the civil legal response to abuse or neglect caused by a parent or others within a familial relationship. The response to child abuse and neglect is necessarily local, but laws at various levels of government control the response and the funding. Laws dictate the definitions of abuse and neglect, and these have changed dramatically as medical and psychological evidence has increasingly been used to reform child welfare law to better serve the children it aims to protect. Four interrelated types of abuse may be addressed as categorized by US law: physical abuse, neglect, sexual abuse, and emotional abuse. The public child welfare system may work in cooperation or under contract with nonprofit/nongovernmental organizations (NGOs) of a religious or philanthropic nature. In the United States, the system is focused on reporting and investigating abuse, with some attention now turning to a less authoritative and more family-centered response, as has been popular in other countries. Once a case of child abuse or neglect is in the child welfare system, a spectrum of services is possible. The law may require or allow services into the home on a voluntary or mandatory basis in hopes of working with the family to provide a safe environment for the child. The law will also govern when a child may be placed in care outside of the home, either with the parents’ consent or under an involuntary order. Out-of-home care may be temporary while the child welfare system works with the family, or it may be permanent, requiring the surrender or termination of parental rights to free a child for adoption.

General Overviews

Understanding current laws that govern the response to child abuse and neglect requires an understanding of the history of state responses to children’s needs and maltreatment. Law now governs these responses, but historically they have been undertaken by private philanthropic agencies and public/private social work systems. As the legal system developed, private responses remained in place to provide cooperative or alternative ways to respond to the protection and care of children. Bremner 1970–1974 is a comprehensive three-volume work chronologically detailing the history of children in the United States, with an exhaustive use of primary documents. Materials on child welfare law are in each volume, and the table of contents details the part of each volume that is dedicated to child welfare. It is therefore necessary to consult each volume for a complete history, but if research is being conducted on a specific period, the chronological compilation is especially useful. The book is unmatched as a source of historical primary documents, many of which are hard to access otherwise. Meyers 2006 is a clearly written guide to how the system works in the United States today, based upon the history of child protection in America. Meyers provides straightforward descriptions useful to readers with or without legal training. Abbott 1938 describes the social work history of the child protection system in America, encompassing not just the response to child abuse and neglect, but also child labor and delinquency. Huntington 2014 is a broader theoretical and practical perspective drawing on research from many disciplines on the interrelationships between government and family today.

• Abbott, G. The Child and the State. 2 vols. Chicago: University of Chicago Press, 1938.

  Abbott is a pillar in the field of social work in the United States and served as director of the federal Children’s Bureau for over a dozen years. The second volume of this two-volume set focuses on dependent children, with useful headings and scholarly notes introducing each section.

• Bremner, Robert H. Children and Youth in America: A Documentary History. 3 vols. Cambridge, MA: Harvard University Press, 1970–1974.

  This three-volume set (some volumes have two books) is the most complete documentary history of children in America. The editors have chosen published and unpublished documents on all areas of children’s lives, including education, health, care of dependent children, labor, and delinquency. Useful introductions weave the story through the documents.

• Huntington, Clare. Failure to Flourish: How Law Undermines Family Relationships. Oxford University Press, 2014.

  DOI: 10.1093/acprof:oso/9780195385762.001.0001

  This book by a leading voice in interdisciplinary family law scholarship draws on social research and psychology to explain the failures of the legal system in addressing the challenges of modern families and offering creative insights for future reform.

• Meyers, J. E. B. Child Protection in America: Past, Present and Future. New York: Oxford University Press, 2006.

  DOI: 10.1093/acprof:oso/9780195169355.001.0001

  Traces the history of child protection in America, the causes of abuse and neglect, and strategies and recommendations to improve the child welfare system, with an emphasis on foster care and the juvenile court.