Visitation as Family Regulation

Legal scholarship is increasingly concerned with the centrality of family separation to child protective services in the United States. While the harms of family separation are significant, scholars have largely overlooked the most powerful tool to repair and rebuild families separated by the state: parent-child visitation. Frequent, meaningful visitation reduces the amount of time children spend in the foster system, increases the likelihood of family reunification, and results in multiple positive outcomes for children even when family reunification will not occur. But minimal legal and political oversight, combined with a lack of transparency, have obscured both the significance of visitation as a tool for reunification and the costs of denying such visitation. This Article explores the purpose, practice, and impacts of parent-child visitation in the family regulation system, filling a significant gap in the legal scholarship. Through an in-depth analysis of existing visitation practices between parents and their children in the foster system, this Article reveals that these practices often conflict with social science research, higher court decisions, and the constitutional rights of parents and children. Fundamentally, this Article argues that default visitation practices involving children placed in the foster system function as a site of social control and facilitate the permanent destruction of the parent-child relationship. That is, the state temporarily removes children from their parents’ care and then, under the auspices of child safety, thwarts the family’s ability to reunify by co-opting the tools of visitation to test, surveil, and legally sever the family. This Article concludes by proposing model legislation that redresses the harm inflicted upon families through the application of visitation laws across the country. In doing so, the Article recommends that states pursue two parallel, but oft-considered contrary, paths forward: fortify familial rights to visitation and obviate the need for visitation by shrinking the number of children unnecessarily separated from their parents.