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To read Robert Mnookin’s seminal 1975 article, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, is to see a blueprint for legislative action. To a remarkable degree, the reforms Mnookin proposed to the child-welfare system are what Congress and the states adopted in the following two decades. And yet reading Mnookin’s article is also a Groundhog Day experience. The problems he described with the child-welfare system nearly forty years ago sound all too familiar today.

Mnookin famously argued that the best-interests standard was indeterminate in the context of the child-welfare system. According to Mnookin, this open-ended standard created several notable failings: It could not identify families truly in need of intervention, it took little account of the dangers inherent in foster-care placement, and it did not move children through the system expeditiously. As a result, too many children were removed from their homes unnecessarily and then left to languish in the limbo of foster care. To address these problems, Mnookin proposed a more determinate standard to replace the best-interests test. To limit removals to cases where foster-care placement was truly needed, he proposed that states remove a child only where her physical health was in immediate danger and there were no reasonable means available for protecting the child within the family. And, to move children more quickly through the system, he proposed a time limit on efforts to reunify the family.


Family Law | Law | Social Welfare Law