Document Type
Article
Publication Date
5-2025
Abstract
Advocates, policymakers, and scholars have argued for years that the family regulation system (also known as the child welfare system) fails families. Critics rightly note that the system does far too little to support families proactively and does not address the poverty and structural racism underlying many allegations of child abuse and neglect. The overrepresentation of Black, Native American, and Native Alaskan children in foster care is a stark and disturbing manifestation of these failings.
In response to these concerns, there is an active debate about abolishing or radically reforming the family regulation system to direct government funding to proactive support for families. Given the limits of a Restatement, the Restatement of the Law, Children and the Law will not eliminate the family regulation system or reallocate billions of dollars in government funding. Those kinds of changes require legislative action reflecting political will and broader social change. By their nature, Restatements are not law reform projects and instead are an effort to restate the law as it exists.
Restatements do, however, capture the trajectory of the law. In the words of the American Law Institute, Restatements are “intended to reflect the flexibility and capacity for development and growth of the common law.” The sections discussed in this essay reflect the promising trajectory of some areas of doctrine in the family regulation system.
As this article shows, the Restatement plays a useful role in limiting the reach of the family regulation system, even as the broader debate about the future of the system continues. By articulating guardrails for state intervention and identifying promising developments in the law, the Restatement makes an important contribution to the present operation of the law. Additionally, the child wellbeing framework embedded in the Restatement is a sound basis for policies that offer proactive support for families, although the Restatement itself cannot implement such policies.
Disciplines
Family Law | Juvenile Law | Law
Recommended Citation
Clare Huntington,
Constraining the Family Regulation System: The Contribution of the Restatement of the Law, Children and the Law,
58
Fam. L. Q.
133
(2025).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4687
Comments
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