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64 Fordham L. Rev. 1873 (1995-1996)
A Judge's Ethical Dilemma: Assessing a Child's Capacity to Choose

handle is hein.journals/flr64 and id is 1889 raw text is: A JUDGE'S ETHICAL DILEMMA: ASSESSING A CHILD'S CAPACITY TO CHOOSE Wallace J. Mlyniec* INTRODUCTION C ASES involving children's lives differ from other cases coming before a judge. When adjudicating disputes between adults, judges apply legal principles to past events in an effort to resolve dis- agreements or assess responsibility. While resolving the dispute may affect litigants' futures financially, it seldom involves the very nature of the litigants' lives.' When making decisions concerning a child, judges consider prior events and legal principles in order to make predictions about a child's future. Judges determine where children will live, with whom they will live, how they will live, and what will be done to, by, or for them. The legal principles judges use to decide cases about children are often vague. Commentators view the best interest of the child stan- dard, which purports to guide decision making in all children's cases, as imprecise at best, and have criticized it for years.' Proper care and rehabilitation, the standard used in delinquency cases, also presents similar uncertainties, and has historically lent itself to political or cul- tural choices that correlate weakly with a child's well-being.3 More- over, research concerning child development suggests that concepts like knowing, intelligent, and voluntary-while somewhat immuta- ble when applied to the adult reasoning process-is fluid prior to * Wallace J. Mlyniec, Professor of Law, Associate Dean, and Director of the Juvenile Justice Clinic, Georgetown University Law School. The author wishes to thank Jennifer Matthews, Carol Benjamin, and Chris Longmore for their research assistance, Wanda Duarte for her technical assistance, and Judge Stephen Milliken of the District of Columbia Superior Court for his helpful comments during the preparation of this Article. 1. Even in criminal cases, where the impact on defendants' lives is greater than those on the lives of civil litigants, the results do not affect defendants in the same way that court proceedings affect children. While conditions of probation and periods of confinement may drastically affect how a person lives his or her life, criminal proceed- ings aim primarily to punish violators for past deeds, not, as is in children's cases, to create an environment where growth is to be fostered. 2. See generally David L. Chambers, Rethinking the Substantive Rules for Cus- tody Disputes in Divorce, 83 Mich. L. Rev. 477, 480-86 (1984) (criticizing the stan- dard); Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs. 226,262-72 (Summer 1975) (same). 3. See David J. Rothman, Conscience and Convenience: The Asylum and its Al- ternatives in Progressive America 268-89 (1980) (reviewing the poor treatment chil- dren received in the early juvenile court); Paul Holland & Wallace J. Mlyniec, Whatever Happened to the Right to Treatment?: The Modern Quest for an Historical Promise, 69 Temp. L.Q. (forthcoming 1996) (manuscript at 5, on file with the Ford- ham Law Review) (reviewing the poor treatment children have received in more modem times). 1873

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