How judges can use their discretion to combat anti‐black racism in the United States family policing system

Abstract

AbstractChild protection court judges have broad authority and practically unchecked discretion to shape the everyday experiences and long‐term outcomes for children and families that come before them. For Black families, this broad power to dictate intimate details of family life ‐ including the power to legally terminate a child's parental and familial connections ‐ is exercised within the historical and social context of chattel slavery and anti‐Black racism. Judges wield their power to regulate the everyday lives and intergenerational outcomes of Black families charged with child maltreatment within a legal and practice framework characterized by indeterminacy and subjectivity that implicates the parent–child relationship and the constitutionally recognized rights of family privacy, autonomy, and integrity. Drawing on the authors’ experiences and perspectives as Black women with personal lived expertise and professional practice with the so‐called child protection or child welfare system, and referencing the limited literature that examines parents’ experiences in child protection courts, this Article explores how judges’ exercise of discretion perpetuates anti‐Black racism in the family policing system and suggests ways child protection judges can consciously exercise their discretion to mitigate harm and maximize due process, accountability, and justice for Black children and families. The authors urge child protection judges to heed the expertise and wisdom of Black parents about their family's needs and desires, to hold child protection agencies and workers accountable to their legal obligations and duties, and to tightly constrain their own tendencies to silence, punish, and regulate Black parents.