Vivek S Sankaran (University of Michigan Law School) has posted Out of State and Out of Luck: The Treatment of Non-Custodial Parents Under the Interstate Compact on the Placement of Children (Yale Law & Policy Review, Vol. 25, 2007) on SSRN. Here is the abstract:
The article explores the way in which the Interstate Compact on the Placement of Children has been used to separate children from nonabusive parents in child protective proceedings. Despite the Supreme Court's articulation that the Fourteenth Amendment of the Constitution prohibits the State from removing children from fit parents, parents across the country are being deprived of this right simply because they live in a different state than the one in which their child has been removed. Children are taken from these parents based on a finding by an administrative agency that the proposed placement would be contrary to the child's best interest, a standard left undefined in statutes and regulations. No finding of unfitness is adjudicated by a court, no due process is provided prior to the deprivation and no adequate recourse is available after the children are removed. Courts interpret the ICPC to delegate interstate placement decisions to administrative agencies of which they lack the jurisdiction to review.
The paper argues that the Compact cannot be used to deprive parents of custody and that once a biological parent steps forward, the child must be returned to him, regardless of his residency, unless the State can prove that he is an unfit parent. Such a result will benefit children by, among other things, preserving the attachment between children and their parents, encouraging non-custodial parents to remain involved in their children's lives and alleviating the burden on an already taxed and often unresponsive child welfare system.