Law and Contemporary Problems
Robert Mnookin’s article, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, is a classic. His insights into the substance and process of family law have influenced scholars for nearly four decades. This essay, written for a symposium marking the upcoming anniversary of the article, demonstrates that Congress adopted many of Mnookin’s proposals to introduce greater determinacy into the child welfare system. And yet the problems he described nearly forty years ago sound all too familiar today. After engaging in a detailed analysis of the reforms, I argue that with the evidence on determinacy now in hand, it is time to reflect on the possibilities and limits of the child welfare system. Reforms to the legal standards have done little to address the larger problems that underlie child abuse and neglect, particularly poverty, social isolation, substance abuse, and parental stress. Family preservation efforts are woefully underfunded and come too late. And time limits on reunification help move children to permanency but at a substantial cost to families of origin. The child welfare system needs a fundamental reorientation toward prevention. Broad-based “family support” programs offer a promising model; it is here that we should place our real efforts. And for those children who are removed from their homes — there will always be some — the child welfare system should develop more realistic goals for children and families.
The Child-Welfare System and the Limits of Determinacy, 77 L. & Contemp. Probs. 221
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