The Legal Rights of Parents of Free-Range Kids

National news has been abuzz in the last couple weeks in the wake of an unusual child abduction in Montgomery County, Maryland on April 12, 2015. The local police were the abductors, and the abduction was carried out with the aid of the local branch of Child Protective Services.

The police, who had received a tip from a neighbor, responded to the call to find two kids, Danielle and Alexander Meitiv, ages ten and six, walking outside without direct adult supervision. Aiming to teach the parents a lesson, the police coaxed the children into one of three squad cars responding to the call by promising they would be taken home. Then, without allowing the children to call their parents, the police kept the children in the squad car without food for three hours.

The police then turned the children over to CPS, who released the kids to their parents five hours after they were picked up—10:30 p.m.

Parents across the country are outraged that police and CPS would act in concert to try and teach parents how to raise their children—parents who were not breaking the law, whose kids were not breaking the law, in a situation where there was no sign of neglect. The only wrong the parents committed was having an intermeddling neighbor and police who were willing to give ear to baseless complaints.

This has also given the free-range kids movement—a movement dedicated to raising safe, self-reliant children—fodder and national press coverage.

Nevada is not immune to this kind of officious intermeddling by neighbors. My own family has felt the effects of neighbors who don’t know the difference between independent children and neglectful parenting. On two different occasions in two different neighborhoods, our neighbors have intervened when my children were playing outside—within view of our house. On one occasion the police were called, and on the other, the neighbor gave my wife a 20-minute lecture on the ills of a lack of child supervision. In both cases, we and our children escaped bothered but unscathed.

What are Nevada’s laws on child independence? At what point would it be necessary to intervene when children are out unsupervised.

First, there is no law in Nevada governing any minimum age for children left home alone or who are playing outside unsupervised. Rather, there are laws criminalizing abuse and neglect, which are broadly defined, but not so broadly to include children playing outside without a parent.

Nevada’s child neglect statute, NRS 432B, defines neglect as follows:

NRS 432B.020  “Abuse or neglect of a child” defined.

1.  “Abuse or neglect of a child” means, except as otherwise provided in subsection 2:
(a) Physical or mental injury of a nonaccidental nature;
(b) Sexual abuse or sexual exploitation; or
(c) Negligent treatment or maltreatment as set forth in NRS 432B.140,
—> of a child caused or allowed by a person responsible for the welfare of the child under circumstances which indicate that the child’s health or welfare is harmed or threatened with harm.

NRS 432B.140  Negligent treatment or maltreatment.  Negligent treatment or maltreatment of a child occurs if a child has been abandoned, is without proper care, control and supervision or lacks the subsistence, education, shelter, medical care or other care necessary for the well-being of the child because of the faults or habits of the person responsible for the welfare of the child or the neglect or refusal of the person to provide them when able to do so.

Nevada further defines abuse and neglect in its criminal statutes, NRS 200:

NRS 200.508  Abuse, neglect or endangerment of child: Penalties; definitions.

“Abuse or neglect” means physical or mental injury of a nonaccidental nature, sexual abuse, sexual exploitation, negligent treatment or maltreatment of a child under the age of 18 years, as set forth in paragraph (d) and NRS 432B.070 [mental injury], 432B.100 [sexual abuse], 432B.110 [sexual exploitation], 432B.140 [see above] and 432B.150 [excessive corporal punishment], under circumstances which indicate that the child’s health or welfare is harmed or threatened with harm.

Examples of lack of” proper care, control and supervision,” as found by the Nevada Supreme Court, include driving while intoxicated while children are in the car, Clay v. Eight Jud. Dist. Ct., 129 Nev. Adv. Op. 48, 305 P.3d 898, 904 (2013), and parents who are “unable to protect the children from each other and failed to teach the children basic social skills or to provide any guidance to the children regarding basic toilet functions and hygiene,” Aug. H. v. State, 105 Nev. 441, 445, 777 P.2d 901, 903 (1989). There have not been any reported cases where parents were convicted of neglect when their children were walking unsupervised.

The Review Journal provides RJ Report from a representative of Nevada’s CPS, which adds some insight as to how CPS may respond to allegations that children are walking or playing unsupervised:

Assistant Clark County Manager Jeff Wells, speaking on behalf of Child Protective Services, said the state does not have age criteria for child supervision and bases it “strictly on abuse or neglect standards.” Signs of physical or psychological abuse, or neglect in the sense of children facing harm or the threat of harm, would trigger intervention. Mr. Wells noted that any law enforcement response to unsupervised children is handled on a case-by-case basis, considering factors such as time of day, area of town, traffic threats, etc. If a caller expressed significant concern, CPS likely would be sent out to talk to the kids, verify their age and maturity and their distance to home, and then travel that distance and perhaps visit the parents to make sure they’re aware of what’s going on and alert them to any perceived risks.

But charging those parents with criminal neglect? Not likely, Mr. Wells said. Especially since, as Mr. Wells noted, many young kids walk or bike a mile or more to school and back on their own. This happens five days a week from August to June, with little concern for the children’s welfare.

Are Unsupervised Children in Danger?

Are unsupervised kids in danger? Should we be concerned if children are playing without direct adult supervision?

According to statistics on child safety, and a Washington Post article outlining these statistics, “there’s never been a safer time to be a kid in America”:

There’s never been a safer time to be a kid in America

Here are some of the statistics cited in the article:

  • In 1935 there were 450 deaths for every 100,000 kids age 1-4. Today? Less than 30; Among children of all ages,mortality rates have fallen by nearly half since 1990;
  • Part of that decline is a drop in child homicides. As of 2008, the homicide rate for kids under the age of 14 stood at a near-record low—1.5 cases per 100,000, according to the Bureau of Justice Statistics. And the homicide rate for teens ages 14 to 17 plummeted from 12 homicides per 100,000 in 1993 to just 5.1 in 2008, another near-record low.
  • Long story short: for a kid between the ages of 5 and 14 today, the chances of premature death by any means are roughly 1 in 10,000, or 0.01 percent.But parents typically aren’t thinking about disease or general morality when they fret over unattended kids — we’re worried about all the terrible things that could theoretically happen to a child out on his own. Chief among them is the threat of abduction, or of the child simply disappearing without a trace.

    The FBI has several decades of data on missing persons now, and those numbers show that the number of missing person reports involving minors has been at record low levels in recent years. Overall, the number of these reports have fallen by 40 percent since 1997. This is more impressive when you consider that the overall U.S. population has risen by 30 percent over that same time period, meaning that the actual rate of missing person reports for children has fallen faster than 40 percent.

What Does the Constitution Say?

Another piece from the Washington post makes the case that the United States Supreme Court, interpreting the U.S. constitution, supports free-range parents:

How the Constitution protects “free range” parents

Here are two relevant excerpts from the article:

  • In two landmark cases in the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protects parents’ and guardians “to direct the upbringing and education of children under their control.”

    …In the 2000 case of Troxel v. Granville, the Court reaffirmed the “fundamental right of parents to make decisions concerning the care, custody, and control of their children,” which it called “perhaps the oldest of the fundamental liberty interests recognized by this Court.” The plurality opinion by Justice Sandra Day O’Connor (joined by three other members of the Court) emphasized that state officials must apply a strong presumption that parents’ decisions about the upbringing of their children are correct, and cannot abridge parental control over child-raising based on “mere disagreement” with the parents’ choices. In a concurring opinion, Justice Clarence Thomas argued for even stronger protection of parental autonomy, noting that laws that infringe on “fundamental” constitutional rights are usually subject to “strict scrutiny” – the highest standard of judicial review.

  • The Supreme Court has always indicated that parental rights are not absolute. The state can intervene to protect children against serious threats to their health and safety, and to ensure that all children get at least a basic education. But, as Troxel makes clear, the state can’t infringe on parental control over child-raising unless they have real evidence showing that there is a genuinely significant threat to the childrens’ safety and well-being….

    Forcibly detaining elementary school-aged kids for walking by themselves in a safe, middle-class neighborhood doesn’t even come close to meeting the necessary standard. Statistically, such walking is extremely safe, and probably less dangerous than police officers’ actions in forcibly detaining the children and driving them to a CPS office.According to the Center for Disease Control, car accidents are a leading cause of death among small children; riding in a car as a passenger is far more dangerous for kids than walking in most neighborhoods. Far from “protecting” the two children, the police and the CPS probably put them at greater risk than they were exposed to before (though the risk was still very low in an absolute sense). The Meitivs’ parenting practices are also much safer than numerous typical childhood activities, such as participating in contact sports like basketball and hockey, or going downhill skiing. If the CPS can force parents to stop letting their children walk home from the park, it can similarly target every other comparably risky activity, including numerous sports, and even driving the children in a car.

If you’re a parent who wants your children to be able to play outside, perhaps so they can enjoy some independence, or to help combat the child-obesity epidemic, or for any of a number of other reasons you don’t even have to share as a parent, you are in good legal company.

Here is a list of resources for parents wanting more information on how they can raise “free-range” children:

Organization devoted to the promotion of free range children:freerangekids.com.

List of United States Supreme Court Rulings regarding parental rights:

  • Meyer v. State of Nebraska, 262 U.S. 390 (1923)
  • Pierce v. Society of Sisters, 268 U.S. 510 (1925)
  • Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944)
  • Ginsberg v. New York, 390 U.S. 629 (1968)
  • Wisconsin v. Yoder, 406 U.S. 205 (1972)
  • Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)
  • Moore v. East Cleveland, 431 U.S. 494 (1977)
  • Smith v. Organization of Foster Families, 431 U.S. 816 (1977)
  • Quilloin v. Walcott, 434 U.S. 246 (1978)
  • Parham v. J. R., 442 U.S. 584 (1979)
  • Santosky v. Kramer, 455 U.S. 745 (1982)
  • Reno v. Flores, 507 U.S. 292 (1993)
  • Washington v. Glucksburg, 521 U.S. 702 (1997)
  • Troxel v. Granville, 530 U.S. 57 (2000)

 

Zachariah B. Parry is an attorney and founding partner at the law firm Parry & Pfau and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-912-4451 or zach@p2lawyers.com.