Where Is It Safe and Legal to Give Children Reasonable Independence?

In Part I of this two-part series, I reviewed efforts currently underway, led by the non-profit Let Grow, to improve state laws and policies to allow children reasonable independence—including children’s right to play outside, walk to school, or stay home alone. Establishing children’s rights to pursue independent activities requires pushing back against overly intrusive police and child protection surveillance and intrusion into families’ privacy and autonomy. To pursue these goals, Let Grow has developed three versions of a model law that counter the broad neglect and endangerment laws that are read as requiring 24/7 surveillance of children. The overly broad neglect laws chill parents’ exercise of their own best judgments about their children’s abilities to manage without constant adult supervision.  

While only one state, Utah, has passed a law that explicitly protects children’s right to engage in independent activities, five states have held hearings on bills that gained broad bipartisan support (Arkansas, Colorado, Connecticut, South Carolina, and Texas). In addition, proposals have been developed in Delaware, Georgia, Oregon, and Pennsylvania (with bills introduced in Oregon and Pennsylvania). Several additional states will be joining this list in 2021.

But is every state ripe for such law reform? If not, which states are good candidates? Which states already have laws or policies that protect children’s independence and parents’ rights to allow their children some unsupervised time? Which states’ laws and policies call out for repeal or amendment?

These were all questions Let Grow wanted to answer. In order to help parents who ask us about their state’s laws, as well as to plan for future legislative advocacy, Let Grow undertook a 50-state (plus Washington, D.C.) survey of criminal and child protection laws. With the research assistance of Chicago, Illinois, lawyer Skye Allen, Let Grow found common patterns and typical problems in states’ laws. The survey also uncovered some model policies in a few states, and some surprising inconsistencies in others. Unfortunately, the overwhelming number of states (47!) had overbroad language that authorizes treating children as endangered or neglected simply for engaging in an independent activity. In addition, eight states had punitive and threatening policies that could frighten parents who might otherwise think their children were ready for independence, though 12 states had policies that more explicitly recognized that children below the age of 10 could be unsupervised at times. 

The 50-State Survey

Let Grow researched the laws of all 50 states and Washington, D.C. during the winter of 2020 so any changes in the law after April 2020 are not reflected in the review. The survey was intended to be a mere starting point for understanding the laws, and the findings and maps are works in progress to be updated and clarified with the input of lawyers and advocates who can help flesh out the legal requirements and their application as well as with assisting in updates as changes occur.

Laws on the books that authorize criminal or neglect findings when parents allow their children to be unsupervised do not mean, of course, that police routinely arrest parents, or that child protection authorities label parents neglectful whenever they find younger children alone. Nor would permissive laws mean that parents are “safe” from criminal or child protective interventions. Let Grow did not review actual state practices or comprehensively review case law. Nevertheless, examining the language in laws and policies is a good start in understanding each state’s framework in giving or abridging children’s rights to reasonable independence.

After we reviewed the laws in every state, we classified them into three categories for our national maps:

• explicitly harmful (red);
• vague/unclear/overbroad (gray);
• and explicitly protective of parents (green).

We also looked for policies, memos, brochures, news articles and case decisions that would explain how the law was being interpreted. Not surprisingly, we found some states had good laws but bad policies, while others had good policies and bad laws. And some states had no policies at all, which we read as probably a bad sign for families.

How did we decide how to categorize the states? On one end of the spectrum (green) were laws that explicitly protected parents’ decisions to let their children have reasonable independence. In the middle (gray) were laws that conferred discretion to issue criminal or neglect findings for children who were engaging in independent activities. And at other end of the spectrum (red) were laws that directly and broadly punished or limited the right of children to be out of adult supervision at all.

To create the map of criminal laws, we looked at crimes against children, including “child endangerment”—the typical vehicle for criminally punishing parents who leave their child alone. We found some states import neglect language wholesale from their juvenile or family court laws into their criminal code (e.g., Kentucky, which treats failure to stop neglect as criminal endangerment and Montana which makes any “knowing violation of a duty of care” to a child a crime). In a few instances, we found some states’ criminal laws would not be applied to letting a child be alone unless the child was physically or sexually abused (e.g. Georgia, Louisiana, Mississippi, Oklahoma, South Carolina, South Dakota, Vermont, and Washington D.C.). We found 30 states that had criminal laws somewhere between these two poles.

On the juvenile and child protection side of our research, we looked for the state’s neglect laws in juvenile court acts, family court acts, children’s codes, administrative agency laws, and civil abuse or neglect laws. The interpretation of child protection neglect laws remains much less developed than criminal law. In addition, it is sometimes quite hard for parents in some states to find lawyers who know what the child protection law provides, what the operative policies are, and what the interpretation of the law properly should be. When coupled with the inherent vagueness of many of the laws, it means that even some potentially unconstitutional laws have never been challenged in court.

When we located a specifically good or bad policy on when children can be alone, we identify it by using dotted colored lines on the map.

Preparing these maps involved many judgment calls on our part. There is no magic here, just our best evaluation of what the law says and how various laws compare with others. This information can help advocates identify states that are ripe for law reform advocacy. We want to flip the red and gray states on the maps to green.

The Findings of the Survey

The survey shows that almost all states fail to distinguish reasonable independence from neglect.

Juvenile/neglect statutes that allow neglect findings when parents give children reasonable independence.

Most of the states’ juvenile/neglect laws are very open-ended, allowing child protective investigators and their supervisors to declare a child neglected based on their own unbounded opinions as to what is “proper” or “necessary care.” At the same time, unfortunately, even states that explicitly have strong protections for children’s independence under their neglect law and policies may have more punitive criminal laws.

Typical state statutes simply define lack of supervision as “neglect,” without any limitation (e.g., Alabama, Alaska, South Dakota, Virginia, and Washington, D.C.) that sets a standard as to how deficient the supervision needs or what supervision entails for children as they grow. Others hardly narrow their reach by adding the word “proper” or “adequate” to describing this form of neglect, presuming thereby that adults know what level of supervision is required without any specific guidance.

Somewhat narrower state laws restrict neglect findings to circumstances when children are left alone in ways that are actually dangerous, rather than assuming some amorphous or general risk, or the mere possibility of harm, simply from being left alone outside the watchful eyes of parent or caregiver. 

Kansas, whose law is strict and narrow, requires actual or likely harm to occur from the lack of supervision. Washington State requires showing a “serious disregard of consequences of such magnitude as to constitute a clear and present danger to the child’s health, welfare and safety.”  Illinois’ law is similar. It uses a “blatant disregard” of “obvious danger” standard to define neglect. This language is mirrored in Let Grow’s model language. New Hampshire requires proof that the child is “likely to suffer serious impairment,” while Pennsylvania requires repeated, prolonged or egregious lack of care. These states all could join our “green” column if they became more explicit in their protection for independent activities, but they are clearly closer to that mark than states like Vermont. Vermont defines neglect so broadly that any act or omission that harms a child’s welfare could be subject to a neglect finding. But all of these laws contrast favorably with the laws of many states that have no requirement of any showing of danger to a child by allowing them to be alone (e.g., Maryland, Massachusetts, Mississippi, and Nebraska).

Several states recognize the variability of children’s abilities and credit children’s maturity or developmental ability as critical to whether a child is neglected, defining neglect as requiring the child to do an activity that is beyond their “development level” (Tennessee) or in circumstances that “impair” their abilities (Indiana). And other states focus more on the parent, such as Rhode Island, which authorizes neglect findings if parents have a “social problem” or if substance use makes them “lose their ability” to properly care for a child.

States that have criminal laws when parents leave children temporarily unsupervised.

On the criminal side, many states have open-ended criminal endangerment laws. And while most states would allow prosecutions of children left alone, some states like Maryland are clear that children under 8-years-old cannot be unsupervised at all, on pain of criminal prosecution. Connecticut provides that children under 12-years-old can’t be left alone on pain of criminal penalties. Florida makes lack of “necessary supervision” a crime, and Montana treats any violation of a duty of care toward a child a criminal offense.   

Some states are unusually punitive to parents who let their children sit in the car even for a few minutes, if the child is below a specified age, such as Hawaii’s law which provides that children under 9-years-old can’t be alone in a car for more than five minutes. Nebraska’s law contains a blanket prohibition without any stated age limit. Of particular note is the law of Louisiana, which provides a child can’t be in a car if the adult is more than 10 feet away—a law that on its face would make it hard for a parent to put their child into a car and then go return a grocery cart. Such draconian laws, if strictly enforced, would prevent parents from running simple errands without potentially running afoul of the state’s criminal law. Other states, like Connecticut, don’t allow children to be in parked cars at any “public accommodations.” Other states have lower age limits and allow more time for children to be left alone in a car briefly while a parent can run an errand, like dropping an older child off at school while a younger one stays asleep in a car seat. 

On the other end of the spectrum of laws regulating children being alone in cars, Vermont limits punishment to only parents who leave their children in excessively hot or cold cars.   

States that expressly protect reasonable independence for children.

As this article series has discussed, Utah is currently the only state with an explicit protection from neglect findings for children engaged in “independent activities.” But we read Kansas’s law as supporting the right of children to engage in independent activities, too, because (1) Kansas requires a likelihood of harm from the placement of a child into a situation that is “beyond their maturity,” (2) it expressly states that the parent must have the financial means to avoid putting the child into such position, and (3) it also has a very strong policy that encourages independence (see discussion below).

We also interpret the absence of statutory authority under which a state could criminally charge a parent with child endangerment, abuse, or neglect on the basis of that parent’s allowing their child to engage in an independent activity as a positive protection of the right. Similarly, we read the absence of statutory authority under children’s codes, juvenile court acts, and reporting laws as a positive protection. States that lacked such statutory authority under their neglect statutes include Missouri and North Dakota. If a state lacks the statutory authority to prosecute parents or register them as neglectors, it follows that litigation and advocacy efforts to stop such governmental intrusions into child and family life may be warranted. See discussion of Julie Q. litigation in Part I of this series (noting the lack of legislative authority for over 26,000 neglect findings that were expunged after multi-year litigation).

The findings as to policies.

Statutes are not the sole source of legal protection or punishment. Some states have adopted positive policies and guidance that favor childhood independence and guide parents’ understanding of how to make sound decisions about when their children can be left alone. These policies can be adapted to other states and could help to drive practice in a positive direction and end the chilling effect of vague and punitive laws.  

Under the Strengthening Families Act of 2014, codified in its relevant part at 42 U.S. 675(10)(A), states are required to allow reasonable and prudent foster parents to make decisions that allow foster children to engage in normal childhood, school, and afterschool activities as their peers without the necessity of caseworker permission. These same laws and policies can and should be used to push for similar policies to apply to all parents and families (as is proposed in the Colorado Reasonable Independence for Children legislation). As we liberalize the permission given to foster parents to make decisions about the activities their foster children can participate in, it makes sense to allow all parents to have more discretion to allow children to engage in activities that are developmentally appropriate for them and help them grow more independent. See, e.g., H. Epstein and A.M. Lancour “The Reasonable and Prudent Parent Standard.

Our research uncovered a few state policies that are thoughtful and helpful. For example, Kansas policy provides that 6- to 9-year-olds can be alone in some cases, based on their maturity, and children 10 and over usually can be alone for longer periods. Policies in Illinois, Minnesota, Montana (which states there is no “magic age” when children can be alone), North Dakota, and Oklahoma all have somewhat liberal policies that guide parents in favor of being able to allow their children some independence.

Specific features of policies we favor include (1) recognition that parents know their child best, (2) a recognition of the complexity of any hard and fast rule that is age-limited as to when a child can engage in an independent activity, (3) description of the positive benefits of independence, and (4) examples of good parenting judgment in action. 

By contrast, some state policies unreasonably threaten and constrict parental choice or are so vague that a parent would not know how to make a decision. For example, Indiana policy suggests neglect occurs whenever a child lacks “adequate supports,” but doesn’t clarify what that means. Language in policies matters. For example, some policies contained unnecessarily high age limits for activities that some children are fully capable of engaging in at much younger ages. See Michigan (children under 10 cannot be left alone, and children 10 to 12 “will be evaluated”); Tennessee (same as to age 10, also providing “older teenage children can be left alone for “short periods”).

The Opportunities and Challenges to Changing These Policies

Surveying existing state laws, identifying problems, and developing model laws are just the first of many steps toward legislative reform. In order to pass childhood independent activities legislation, Let Grow works in state-based partnerships to forge working groups of advocates, parents, and professionals to make the case for proposed state legislative amendments. Attorneys for families and children who work in the child welfare system and in school settings have been critical allies in these efforts.

Once it is determined that a state law should be amended so that it is consistent with one of the Let Grow model laws, the working groups, with Let Grow’s coordination and oversight, work together to answer these questions in order to take move toward passing the legislation:

1. Which specific criminal or child welfare/neglect statute or policy needs to be changed? What words in that statute are too sweeping and/or inherently discretionary? Can those words be more narrowly defined?
2. Who are the best sponsors for the proposed bill, both Democratic and Republican? Once we have sponsors, we work with them, the advocates, and state legislative drafting staff to carefully draft and balance the proposed language to be both concise and comprehensive. Sometimes we decide to pare back proposals from our wish list and sometimes we decide to press for stronger language, making many strategic decisions with the working group along the way.   
3. Have children been stopped from engaging in reasonable independence in the state? In some cases, legislation has passed even without direct examples of families affected by the broad law we are trying to change. Is the parent community concerned about what they are allowed to do? Are there specific communities—including communities of color, persons with disabilities, or single mothers—who feel particularly vulnerable?
4. We try to understand the state’s political environment, including current pressing concerns that dovetail with need for the bill. For example, the pandemic makes parents’ need for the protection of children’s independence greater than ever, but at the same time makes other issues uppermost in legislators’ agendas.
5. We decide which members of the working group should make specific “asks” of legislators and other stakeholders, considering whether members of the group have relationships with legislators or are constituents in the legislators’ districts, If not, can we find allies with those specific connections? Through the legislative session, we work to widen the circles of support for our proposal, including reaching out to allied groups.
6. We address any concerns voiced about the language of our legislation with governmental agencies. Having sponsors who are respected by the agencies is especially helpful in working out language.
7. We plan how to make the case for the bill at a public legislative hearing. Who is willing to testify in support of the proposal? Whose story will resonate with the legislative audience? Note that parents may want to speak out but need to be supported in doing so. Some parents have found the experience of testifying about their experience cathartic and empowering, while others felt their experiences were unfairly dismissed or not fully appreciated in a way they expected. In our experience, children who have stopped engaging in an activity out of fear of police or child protection authorities can make excellent witnesses. Legislators are easily disarmed by articulate kids, like 9-year-old Blaise (South Carolina), who wanted to have the freedom to play outside with his younger siblings, or Brinley, age 10 (Colorado), who testified about “wanting to be a better runner” when she was 7-years-old, but a neighbor’s call to authorities to investigate her for being alone frightened her from pursuing her healthy exercise goal.
8. We develop a media campaign in both local and national media to bring the issue to the attention of a wider audience. Opinion articles and features by bill sponsors  help to raise interest in the law.
9. We talk early and often about how legislation will be implemented. During hearings, we work to secure a commitment from the head of the child protection agency to train and educate their staff and the public about the provisions of the law.

Legislative advocacy provides a way for parents, parent advocates, child advocates, professionals, and lawyers to come together to work constructively for change in policies and practices that hurt children. Civic engagement on legislation is often a new activity for families, but with very few exceptions, the experience has been very rewarding even when the legislation has not passed. And legislative advocacy brings people with many divergent life experiences and talents together on a common cause. Each of the tasks above calls for skills and interests that no one person possesses by themselves, but working together builds a foundation for change that children deserve.

Let Grow is currently identifying new states where working groups will be built and legislation will be introduced. The pandemic provides new reasons why advocacy for childhood independence is especially challenging as well as especially important. To succeed in this bipartisan, multistate, cross-class, multifaceted advocacy we are looking for partners and leaders. If you are interested in getting involved or learning more, please contact me at [email protected]