Building Broken Children in the Name of Protecting Them

Examining the Effects of a Lower Evidentiary Standard in Temporary Child Removal Cases

In 1982, the Supreme Court in Santosky v. Kramer held that the “clear and convincing” standard was the minimum evidentiary burden that the state must meet in order to permanently separate and remove a child from his home. A majority of states since then have interpreted Santosky to find that the evidentiary standard for temporary child removal cases is lower. Although the custody interest at stake in a temporary removal proceeding is different from that of Santosky, the harmful psychological effects that stay with children that have been separated from their home, even temporarily, are irreversible and are often omitted from the court’s analysis in adjudicating those children. This Note examines two different evidentiary standards required by states and their effects on state child welfare systems and the families that become involved in such proceedings. While many states maintain a “preponderance of the evidence” standard for temporary child removals, this lower evidentiary bar inevitably allows for more child removals at an earlier stage with a significant number of cases that end up being unsubstantiated. This Note argues that states should move away from adjudication and provide alternative resources for families involved in low-risk cases in order to avoid unnecessary separation while protecting the children that these systems were meant to protect. While ensuring a safe environment for a child should be a priority, taking a child away from his or her home and family should not be taken lightly.

The full text of this Note is available to download as a PDF.