Helicopter vs. Free Range: Endorsement of Parenting Style in the Law

July 13, 2018Articles New Jersey Law Journal

Nearly all of us can recall a moment from childhood when we were at odds with a parent on a matter of discipline, and “because I said so” was the resolute justification for exercising parental authority. At the time, it probably felt definitive, dictatorial or maybe even Draconian to the child, as challenging the parent was likely out of the question. While an adult’s ability to parent as he or she sees fit may feel absolute to a child, it does not go unchecked in the eyes of the law. The laws governing family court actions can endorse or discourage a specific parenting style, which can be a factor in how parents are legally permitted to raise their children. The legislative preference for one parenting style over another may be most sharply evident in the neglect laws, but implicit endorsement of a given parenting style may spill over into other areas of family law, such as custody determinations incident to divorce.

Search any parenting magazine or blog and you will find an abundance of resources and debates on various parenting styles. The term “helicopter parent” characterizes one who hovers over the child’s every move, using overprotection and supervision to thwart the independence of a child. Conversely, “free-range parenting” characterizes the laissez-faire parent who promotes the independence and self-sufficiency of the child by affording greater liberty and freedom of choice. See generally David Manno, “How Dramatic Shifts in Perceptions of Parenting Have Exposed Families, Free Range or Otherwise, to State Intervention,” 65 Am. U. L. Rev. 675, 677 (2016).

Parenting style, however, is not always a conscious identification. The self-sufficiency afforded to children of free-range parents is sometimes a consequence of socioeconomic status, where constant supervision, round-the-clock childcare and hyper-involvement in a child’s extracurricular activities are not an option for the single working parent or low-income family.

Parenting style may also be influenced by cultural backgrounds. In Scandinavian culture, it is common to leave sleeping children outside of stores or cafes in their strollers. In Japan, it is common to permit children to take the subway to school or run unsupervised errands. In Hispanic and Native American communities, it is common to delegate childcare responsibilities to older siblings. See David Pimentel, “Protecting the Free Range Kid,” 38 Cardozo L. Rev. 1, 17-18 (2016).

Parenting styles are not just a topic of armchair psychology within communities of parents, but can be endorsed or discouraged by the law. The most apparent example lies in child neglect laws. In New Jersey, neglect is broadly defined as, “(a) willfully failing to provide proper and sufficient food, clothing, maintenance, regular school education as required by law, medical attendance or surgical treatment, and a clean and proper home, or (b) failure to do or permit to be done any act necessary for the child’s physical or moral well-being.” N.J.S.A. 9:6-1. This standard, particularly subsection (b), leaves free-range parents susceptible to attacks on their parental fitness if the free rein afforded to their children is interpreted as a dereliction of the parents’ duty to attend to the child’s well-being.

Free-range parents occasionally receive media scrutiny for their hands-off approach to parenting when a bystander calls the police after observing a child playing outside alone or walking in public without a chaperone. To counteract this phenomenon, at least one state recently enacted legislation essentially “legalizing” free-range parenting, by specifying in its definition of neglect that same does not include permitting a child whose basic needs are met and who is of sufficient age and maturity to engage in independent activities including traveling to school and recreational activities, engaging in outdoor play, or remaining in a vehicle or at home unattended. See  Utah Gen. Stat. 62A-4a-403 et seq. This amendment seeks to reduce free-range parents’ vulnerability to allegations of child neglect and stands in sharp contrast to the existing neglect laws in other states, like New Jersey.

This attitudinal shift is important because neglect proceedings do not happen in a vacuum. Other family law cases, especially divorces, can include allegations of child abuse and neglect. The conceptualization of neglect, as codified in the law, has a direct bearing on the outcome of custody determinations in these cases. It is no coincidence that neglect cases are heard in the family part of the court, like they are in New Jersey, given the overlapping issues.  The new amendments to the Utah statute signify a shift in legislative attitudes toward neglect in at least one state, as informed by emerging trends in parenting style. To what extent will these attitudes spill over into other areas of family law, such as divorce? To what extent will other states, such as New Jersey, follow suit?

The inquiry is critical, as preference for one parenting style over another is already displayed in the laws related to the custody and care of children incident to divorce. Unlike with child neglect laws, where the state makes a determination as to the parent’s fitness, the interplay between parenting styles and child custody/support in divorce is particularly important because it allows the parents to levy attacks on each other’s parenting style as part of a litigation strategy. Once going through a divorce, the discretionary parenting style of one spouse can unfortunately be used as either a sword or a shield to gain leverage in a legal battle over the children. If the parties have similar attitudes toward parenting, this issue may never arise during the divorce. However, the effect that parenting style may have on the disposition of child custody and support issues will be compounded when the divorcing parents disagree or have different methods of parenting their children.

From a financial perspective, New Jersey’s child support guidelines heavily factor in the amount of time (overnights) each parent spends with the child to determine each parent’s financial contribution toward the child’s needs. A free-range parent who spends less time with the child may face an increased child support obligation as a result. If one parent has historically been the child’s primary caregiver, he or she may obtain a greater number of overnights than the other parent, resulting in a reduced obligation toward child support.

In making custody determinations, the effect of diverse parenting styles will vary on a case-by-case basis. The extent to which child neglect laws continue to change based on parenting style preference will likely have an effect on this inquiry. The metric by which custody determinations are made, the ubiquitous “best interest of the child” standard is, in most states, intentionally vague and leaves flexibility for a fact-specific inquiry into the dynamics of a given family. Parents’ preferred style of parenting may benefit or disadvantage them, depending on the situation.

For example, a classic helicopter parent who has been very involved in the child’s day-to-day care, education and extracurricular activities will argue that preserving the status quo and affording him or her the most access to the child as primary custodian is best. A free-range parent who is less involved on a day-to-day basis may have a steeper uphill battle, especially if the other parent has a proven track record of being positively hands-on and remains willing and able to continue in that role.

Conversely, helicopter parenting can backfire on a parent if the over-protectiveness is not welcomed by the child or looked upon favorably by the adjudicator. In that scenario, the teenager who laments the short leash of one parent may express a desire to primarily live with the parent who takes a more laid-back approach and gives the child a greater taste of the independence of adulthood. The positive correlation between a child’s age and degree to which his or her preference is considered may inure to the benefit of the parent who has employed a free-range parenting style. Moreover, the hands-on approach of a helicopter parent may be negatively perceived as controlling by the court or custody evaluator. This could, in part, be informed by legislative mandates as to what constitutes neglect. Where is the line between being laid-back and being neglectful? Where is the line between being hands-on and being harmfully smothering?  The attitudes of the adjudicator, and even his or her own preferences for parenting style, may factor in and affect the outcome.

Notwithstanding the fact that the legislative preference on parenting style codified in other areas of the law (like neglect) can impact determinations of custody in divorce, in most cases, both parents will continue to exercise custodial rights, whether based on an evaluator’s recommendation, a judicial determination or a settlement agreement. If these parents disagreed on parenting style during the marriage, one can only imagine how these fundamental differences could be exacerbated upon divorce, creating a breeding ground for parental conflict. While high-conflict families make up only 10 percent of family cases, approximately 90 percent of post-judgment custody litigation stems from these families. See Sophie B. Mashburn, “Throwing the Baby out with the Bathwater,” 2015 J. Disp. Resol. 191, 199 (2005). In these situations, where the parties will likely remain at odds with their beliefs on parenting, a referee of sorts may be indispensable to alleviate ongoing conflict and ensure that both parenting styles continue to be respected and employed.

Reprinted with permission from the July 13 issue of the New Jersey Law Journal. (c) 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.