Child Protective Services and Police Interference with Family Relations: A Constitutional Perspective
Child Abuse, Family Rights, and The Child Protective System (Stephen M. Krason, ed., 2013)

46 Pages Posted: 12 Jun 2012 Last revised: 23 Jul 2013
Michael E. Rosman
Center for Individual Rights

Date Written: June 8, 2012

Abstract
The Constitution protects the rights of families from interference. This paper introduces the reader to the application of the Constitution to situations in which a state actor – usually a representative of a Child Protective Services-type agency or a police officer – has interfered with a family’s right to be together, or a parent’s right to make decisions for a child, prior to the family (or parent) having the opportunity to defend itself (or himself) in court. The general constitutional rule is that notice and a hearing are required before state actors can effect any such interference, even temporary interference. Accordingly, the kind of interference examined in this paper ought to be a rare exception, available only when there is reasonable basis to believe that a substantial, negative outcome will occur (most often, to a child) before a fair hearing can take place. I suggest that, given the speed with which judicial hearings can be held in this day and age, there are few instances in which such hearings are properly delayed. The cases studied suggest that the right to family integrity is too frequently violated by overzealous members of the child protection community, with little or inadequate check from the judiciary.

Keywords: constitutional law, substantive due process, child abuse, child neglect, CPS