Family Regulation Archives - Columbia Law Review

“At the back of everyone’s mind as they’re going through an investigation is, ‘I have a caseworker in my house, asking me questions about my parenting of my children. And it can go either way. I know this could end up with my kids being removed, not even for anything I’ve done. This person has the legal power to separate my children from me.’ No matter how flowery we talk, that is in the back of everyone’s mind.” — Official, Connecticut Department of Children and Family Services [footnote]Telephone Interview with Michael C. Williams, Deputy Comm’r, Conn. Dep’t of Child. & Fams. (May 31, 2024) (notes on file with the Columbia Law Review) [hereinafter Conn. D.C.F. Interview].[/footnote] Introduction Family regulation investigators subject more than three million American children to home searches each year.[footnote]Child.’s Bureau, HHS, Child Maltreatment 2022, at xv (2024) [hereinafter Child.’s Bureau, Child Maltreatment 2022], https://acf.gov/sites/default/files/documents/ cb/cm2022.pdf [https://perma.cc/CT8L-YHWS] (noting that 3,096,101 children “received [e]ither an investigation or alternative response”). This Article uses “family regulation” to describe the system commonly called the “child welfare” system. See Emma Ruth, Opinion, ‘Family Regulation,’ Not ‘Child Welfare’: Abolition Starts With Changing Our Language, The Imprint (July 28, 2020), https://imprintnews.org/opinion/family-regulation-not-child-welfare-abolition-starts-changing-language/45586 [https://perma.cc/5FLT-5WEN]. See generally Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families—And How Abolition Can Build a Safer World (2022) [hereinafter Roberts, Torn Apart] (describing the terror and violence accompanying the family regulation system and advocating for its abolition). This Article describes a unified “family regulation system” as an oversimplified stand-in for the many local, state, and federal institutions that comprise it. Cf. Emma Kaufman, The Prisoner Trade, 133 Harv. L. Rev. 1815, 1826 n.50 (2020) (noting of the criminal legal system that “[s]ome resist calling it a ‘system’ at all”).[/footnote] Though home searches have proven ineffectual for rooting out child maltreatment,[footnote]See Child.’s Bureau, Child Maltreatment 2022, supra note 2, at 20 (reporting that more than 80% of investigations close without substantiating allegations); David Finkelhor, Trends in Adverse Childhood Experiences (ACEs) in the United States, Child Abuse & Neglect, Oct. 2020, at 1, 4–5 (noting that the rate of child neglect has remained steady for more than two decades, a time period in which surveillance has been near-constant); Robert Sege & Allison Stephens, Child Physical Abuse Did Not Increase During the Pandemic, 176 JAMA Pediatrics 339, 339 (2022) (finding no increase in child abuse during a period that saw a dramatic decrease in family surveillance). On the use of “child maltreatment,” see infra note 82 and accompanying text.[/footnote] states require these searches for almost every family regulation investigation, regardless of the underlying allegations.[footnote]Tarek Z. Ismail, Family Policing and the Fourth Amendment, 111 Calif. L. Rev. 1485, 1497 (2023) [hereinafter Ismail, Family Policing] (“In all screened-in cases, CPS conducts a home search.”); Eli Hager, Police Need Warrants to Search Homes. Child Welfare Agents Almost Never Get One., ProPublica (Oct. 13, 2022), https://www. propublica.org/article/child-welfare-search-seizure-without-warrants [https://perma.cc/ XF2U-MY3L] [hereinafter Hager, Police Need Warrants] (“With rare exceptions, all of these investigations include at least one home visit, and often multiple, according to a review of all 50 states’ child welfare statutes and agency investigative manuals.”).[/footnote] As a result, investigations routinely bring state agents into the home, the most protected space in Fourth Amendment jurisprudence.[footnote]See Florida v. Jardines, 569 U.S. 1, 6 (2013) (“[W]hen it comes to the Fourth Amendment, the home is first among equals.”).[/footnote] Under the Fourth Amendment, home searches are presumptively unreasonable unless state agents have a warrant, avail themselves of a recognized exception to the warrant requirement like exigency, or gain the consent of the home’s residents.[footnote]See Anna Arons, The Empty Promise of the Fourth Amendment in the Family Regulation System , 100 Wash. U. L. Rev. 1057, 1088 (2023) [hereinafter Arons, Empty Promise] (collecting circuit decisions holding that the Fourth Amendment’s warrant requirement applies to family regulation home searches); Ismail, Family Policing, supra note 4, at 1529 (“The majority of circuits affirmatively ruling on the question—five—have in fact held that CPS agents must obtain a warrant to enter a home during a CPS investigation in the absence of exigency or consent.”).[/footnote]

Consent is, in practice, the default response to this constitutional hurdle. Though data is sparse, one scholar estimated that more than 90% of home searches are conducted with the nominal consent of parents.[footnote]Doriane Lambelet Coleman, Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment, 47 Wm. & Mary L. Rev. 413, 430–31 (2005). Throughout, this Article uses “parents” as shorthand for the persons named as the subjects of family regulation investigations.[/footnote]The number of searches authorized by warrants or court orders is vanishingly small. In both New York City and Los Angeles, for example, searches authorized by warrant occur in fewer than 1% of investigations.[footnote]Compare Dep’t of Child. and Fam. Servs., Cnty. of L.A., Child Welfare Services Data Fact Sheet: Calendar Year 2022 (2022), https://dcfs.lacounty.gov/wp-content/ uploads/2023/02/Factsheet-CY-2022.pdf [https://perma.cc/KEH5-97UD] (reporting that 47,309 cases received an “in-person response”), with N.Y.C. Admin. for Child.’s Servs., Child Welfare Indicators Annual Report CY 2024, at 9, 16 (2025), https://www.nyc.gov/ assets/acs/pdf/data-analysis/2024/CityCouncilReportCY2024.pdf [https://perma.cc/ 4KE2-6PPZ] (reporting 219 entry orders, compared to 36,988 investigations), and Email from Aldo Marin, Bd. Liason, DCFS Bd. & Comm’n, L.A. Cnty., to author (June 26, 2024) (on file with the Columbia Law Review ) (reporting that a total of 287 investigations included warrants of any kind and 240 included investigative search warrants).[/footnote] Perhaps more surprisingly, the number of searches justified by exigency is also low.[footnote]See infra section I.C. [/footnote] Exigency allows state agents to enter a home without a warrant if they believe a person inside is hurt or about to be hurt.[footnote]Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 6.6(a) (6th ed. 2021).[/footnote] But most family regulation investigations focus on allegations of neglect, rather than physical or sexual abuse,[footnote]Child.’s Bureau, Child Maltreatment 2022, supra note 2, at 23 (categorizing allegations).[/footnote]reducing the likelihood of exigency in most cases. Further, only 5% of children whose families are investigated are ultimately taken from their parents’ care.[footnote]Id. at xv (comparing the number of children who received foster care with the number who received investigations or alternative responses).[/footnote] Since the state must make a showing similar to exigency to justify many of these separations,[footnote]See Josh Gupta-Kagan, America’s Hidden Foster Care System, 72 Stan. L. Rev. 841, 860 (2020) [hereinafter Gupta-Kagan, Hidden Foster Care] (describing the standard for emergency removal before parents are adjudicated as unfit as requiring a “substantial and imminent” risk to the child). Not all children placed in foster care are placed there under this emergency removal standard, as some are not placed until after their parents are adjudicated responsible. See Paul Chill, Burden of Proof Begone: The Pernicious Effect of Emergency Removal in Child Protective Proceedings, 41 Fam. Ct. Rev. 457, 466 n.15 (2003) (acknowledging the difficulty of estimating the rate at which children are removed on this basis but estimating it to be “a very large percentage”).[/footnote] the removal rate is a rough proxy showing the relative rarity of exigencies in family regulation investigations.[footnote]See infra section I.C.[/footnote]

That leaves consent. Yet the consent extracted from families is rarely the product of free choice. The vast majority of family regulation investigations target poor families, and a disproportionate number target Black, Native, and Latine families.[footnote]See, e.g., Child.’s Bureau, HHS, Child Welfare Practice to Address Racial Disproportionality and Disparity 2–3 (2021), https://cwlibrary.childwelfare.gov/discovery/ delivery/01CWIG_INST:01CWIG/1218693270007651 [https://perma.cc/RF5U-ZDKY] [hereinafter Child.’s Bureau, HHS, Child Welfare Practice] (documenting racial disparities); Kelley Fong, Child Welfare Involvement and Contexts of Poverty: The Role of Parental Adversities, Social Networks, and Social Services, 72 Child. & Youth Servs. Rev. 5, 5–6 (2017) [hereinafter Fong, Contexts of Poverty] (offering a meta-analysis and concluding that children from poor families and communities are highly overrepresented in the child welfare system).[/footnote] Investigators arrive on families’ doorsteps unannounced.[footnote]See, e.g., Fla. Dep’t of Child. & Fams., Child Protection: Your Rights and Responsibilities 2, https://www.myflfamilies.com/sites/default/files/2023-05/CPI_RightsResponsibilitiesMar2015.pdf [https://perma.cc/L2WG-PF32] (“Florida law specifically directs visits and interviews with the child and family to be unannounced whenever possible . . . .” (emphasis omitted)); Hum. Rts. Watch, “If I Wasn’t Poor, I Wouldn’t Be Unfit”: The Family Separation Crisis in the US Child Welfare System 1–2 (2022), https://www.hrw.org/sites/default/files/media_2022/11/us_crd1122web_3.pdf [https://perma.cc/KJN4-C7JA] (recounting one Los Angeles parent’s experience with unannounced searches); Cynthia Godsoe, Just Intervention: Differential Response in Child Protection, 21 J.L. & Pol’y 73, 87–88 (2012) (contrasting the “[t]raditional CPS practice [which] entails a worker making an unannounced visit to the home to ‘catch the parent off guard’” with noninvestigative responses in which initial visits are announced); A Parent’s Guide to a Child Abuse or Maltreatment Investigation, N.Y.C. Admin. for Child.’s Servs., https://www.nyc.gov/site/acs/child-welfare/parents-guide-child-abuse-investigation.page [https://perma.cc/4NHC-SNWQ] (last visited Mar. 3, 2025) (“During the [i]nvestigation . . . CPS will make an unannounced visit to your home within 24–48 hours of the report.”).[/footnote] They say they need to come in—that a home evaluation is required.[footnote]See, e.g., Class Action Complaint and Jury Demand at 1–2, Gould v. City of New York, No. 1:24-cv-01263-CLP (E.D.N.Y. filed Feb. 20, 2024), 2024 WL 693712 [hereinafter Gould Complaint] (“You have to let us in. We need to look in your home. We don’t need a warrant. We’re going to get the police here if you refuse. We’re not leaving until we come inside. If you don’t let us in, we’re going to take your children.” (emphasis omitted)); Ismail, Family Policing, supra note 4, at 1539.[/footnote] They tell parents that they are there to help.[footnote]See Arons, Empty Promise, supra note 6, at 1097 (describing how family regulation agencies cast the family regulation system as “collaborative and helpful” and encourage cooperation by parents).[/footnote] They neither inform parents of their rights[footnote]See id. (“They rarely inform parents of statutory or constitutional rights.”); infra section III.A.[/footnote] nor warn parents that the information they gather can be used against parents to support the government’s case against parents in court, including attempts to sever parents’ rights to their children permanently.[footnote]See Anna Arons, Prosecuting Families, 173 U. Pa. L. Rev. 1029, 1049–50 (2025) (describing trajectories of family regulation cases). This total absence of warnings presents an obvious contrast to criminal investigations. See Miranda v. Arizona, 384 U.S. 436, 479 (1966) (requiring police to give prophylactic warnings to people in custody in criminal cases that their words can be used against them in a court of law).[/footnote] If parents question or resist investigators’ entry, they threaten to call law enforcement.[footnote]See, e.g., Lowther v. Child. Youth & Fams. Dep’t, No. 1:18-cv-00868 KWR/JFR, 2020 WL 5802039, at *13 (D.N.M. Sept. 29, 2020) (describing plaintiff’s allegation that “[s]he was immediately and repeatedly informed that she could be arrested or detained for denying access to the children” (quoting Lowther v. Child. Youth & Fams. Dep’t, No. 1:18-cv-00686KWR-JRF, 2020 WL 4192591, at *10 (D.N.M. July 21, 2020))); Cayla Bamberger, ACS Routinely Violates NYC Families’ Rights During Child Welfare Investigations: Lawsuit, N.Y. Daily News (Feb. 20, 2024), https://www.nydailynews.com/2024/02/20/acs-routinely-violates-nyc-families-rights-during-child-welfare-investigations-lawsuit/ [https://perma.cc/L24N-WAV5] (recounting an agency’s threat to call the police upon a mother’s refusal to allow entry).[/footnote] An even larger threat looms over this entire interaction, sometimes explicit, sometimes implicit: If the parents do not cooperate, investigators can take their children.[footnote]See, e.g., Clark v. Stone, 998 F.3d 287, 302 n.6 (6th Cir. 2021) (describing an investigator’s explicit threat of removal); Kelley Fong, Investigating Families: Motherhood in the Shadow of Child Protective Services 81, 87 (2023) [hereinafter Fong, Investigating Families] (describing parents’ experiences with the implicit threat of family separation); Conn. D.C.F. Interview, supra note 1 (acknowledging that there is an implicit fear of family separation throughout investigations).[/footnote] It is no wonder that so many parents acquiesce to searches, despite the harms that searches inflict on parents, children, and communities.[footnote]See Hum. Rts. Watch, supra note 16, at 63–65 (describing the harms of investigations on families and communities); see also infra section I.B.[/footnote]

In the criminal law context, it is hardly a novel observation that consent is often—perhaps always—a legal fiction. Under the Supreme Court’s Fourth Amendment jurisprudence, consent must be voluntary to be valid.[footnote]See Schneckloth v. Bustamonte, 412 U.S. 218, 227–30 (1973) (“[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.”).[/footnote] But generations of criminal law scholars have argued that the Court’s standard for voluntary consent does not sufficiently account for the coercion inherent in any request from an official to an individual.[footnote]See, e.g., Roseanna Sommers & Vanessa K. Bohns, The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance, 128 Yale L.J. 1962, 2009–10 (2019) (“Some commentators have taken high compliance rates as an indication that consent is all but impossible. ‘[P]eople consent so often that it undermines . . . the meaningfulness of the consent.’” (alterations in original) (quoting Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609, 1662 (2012))); see also I. Bennett Capers, Criminal Procedure and the Good Citizen, 118 Colum. L. Rev. 653, 655 (2018) [hereinafter Capers, The Good Citizen] (describing the categorically compliant “good citizen” who aids police, waives his rights, and consents to searches); Ric Simmons, Not “Voluntary” but Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 Ind. L.J. 773, 774 (2005) (rejecting a binary conception of voluntariness in favor of an analysis of the degree of compulsion applied); Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 221 (2001) (criticizing the voluntariness test for being vague, failing to acknowledge the reality of coercion, and fostering distrust of the police and judicial system).[/footnote] Nor, they argue, does it account for imbalances in information and power or for the dimensions of identity—including race, class, gender, disability, immigration status, and language—that necessarily shape interactions between the state and individuals.[footnote]See, e.g., Raquel Aldana, Of Katz and “Aliens”: Privacy Expectations and the Immigration Raids, 41 U.C. Davis L. Rev. 1081, 1085 (2008) (“[T]he application of the consent doctrine in immigration enforcement under the most coercive circumstances increasingly defies the fictional premise that reasonable people feel free to walk away from law enforcement encounters.”); Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 1013–14 (2002) [hereinafter Carbado, (E)racing the Fourth Amendment] (arguing that “racial vulnerability” to coerced consent derives from “the relationship between race and knowledge about constitutional rights” and from “the nexus between race and social behavior in the context of police encounters”); Tracey Maclin, “Black and Blue Encounters”—Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243, 271–72 (1991) (positing that “for most black men, the typical police confrontation is not a consensual encounter”); Jamelia Morgan, Disability’s Fourth Amendment, 122 Colum. L. Rev. 489, 515–20 (2022) (arguing that the consent standard’s normative construction fails to acknowledge race and disability as factors in the test for coercion); Strauss, supra note 25, at 213 (arguing that “members of certain racial and cultural groups” experience heightened “feelings of compulsion” in police encounters).[/footnote] Others critique consent for expanding surveillance and insulating searches from review: Consent, they say, allows the state to conduct searches even when it has no particularized suspicion, shields searches from judicial scrutiny, and offers courts an alternative basis on which to approve of searches that might otherwise be constitutionally infirm.[footnote]See, e.g., Carbado, (E)racing the Fourth Amendment, supra note 26, at 970 (describing how consent “doctrinally masks” race’s role in searches); Kate Weisburd, Criminal Procedure Without Consent, 113 Calif. L. Rev. (forthcoming 2025) (manuscript at 31–32) [hereinafter Weisburd, Criminal Procedure Without Consent] (on file with the Columbia Law Review ).[/footnote]

Though these critiques of consent searches are common in criminal law scholarship, they have received limited attention in family regulation scholarship.[footnote]Scholars studying Fourth Amendment constraints on family regulation home searches have noted that consent is a popular pathway around the warrant requirement, but consent has not been their central concern. See Coleman, supra note 7, at 461–63 (describing the consent and exigent circumstances exceptions); Ismail, Family Policing, supra note 4, at 1541 (exploring voluntary consent in the family regulation context).[/footnote] In this field, explorations of consent and voluntariness tend to focus on the voluntariness of parents’ decisions to separate from their children or to accept ongoing restrictions on their parental rights.[footnote]See, e.g., Gupta-Kagan, Hidden Foster Care, supra note 13, at 849–50 (examining the pressures on parents in family regulation investigations to agree to changes in custody); Soledad A. McGrath, Differential Response in Child Protection Services: Perpetuating the Illusion of Voluntariness, 42 U. Mem. L. Rev. 629, 635 (2012) (“A family’s decision to participate in assessment and services in lieu of a [traditional] child protection investigation may seem to be a relatively simple, proactive choice, but it is a choice that can lead to severe consequences for a family and is, in fact, no choice at all.”); Katherine C. Pearson, Cooperate or We’ll Take Your Child: The Parents’ Fictional Voluntary Separation Decision and a Proposal for Change, 65 Tenn. L. Rev. 835, 837–38 (1998) (“Careful examination of the pressures the state imposes upon parents to enter into a separation agreement reveals the often fictional nature of the voluntary label and the consequent need for concern.”); Clare Ryan, Children as Bargaining Chips, 68 UCLA L. Rev. 410, 426‑45 (2021) (examining how state actors use threats of family separation to extract consent to deportation in immigration proceedings, to extract statements during criminal interrogations, and to extract consent to safety plans during family regulation investigations).[/footnote] Those explorations are vital but leave untouched the millions of cases every year where state agents investigate a report of child maltreatment, extract consent to search a home, and close the case after the search finds no evidence to support further state intervention.[footnote]Child.’s Bureau, Child Maltreatment 2022, supra note 2, at xv (reporting that around 80% of investigations are closed without substantiating the allegations and around 70% of investigations are closed without post-investigation involvement for the family). For an explanation of why investigations sometimes result in referrals for services even though they do not reveal evidence to substantiate the underlying allegations, see Arons, Prosecuting Families, supra note 20, at 1045.[/footnote] This is by far the most common kind of contact families have with the family regulation system.[footnote]Child.’s Bureau, Child Maltreatment 2022, supra note 2, at xv.[/footnote] Even when searches do not lead to further state intervention, they still disrupt the privacy, dignity, and security of individual families and race–class subjugated communities[footnote]See Khiara M. Bridges, The Poverty of Privacy Rights 112–17 (2017) (arguing that poor parents “feel themselves to be in an antagonistic relationship with the government” because of omnipresent state surveillance); Fong, Investigating Families , supra note 22, at 12–14 (2023) (noting that “lower-level investigative contacts are increasingly the face of CPS” and arguing that the ubiquity of these contacts increases “precarity” for mothers); Hum. Rts. Watch, supra note 16, at 9–11 (“[T]he [family regulation] system’s interventions too often undercut its goals—failing to adequately address the needs of the family, and in some cases exacerbating the problems it intended to remedy.”); Daniella Rohr & Melissa Friedman, Overreporting and Investigation in the New York City Child Welfare System: A Child’s Perspective (forthcoming 2025) (manuscript at 13–14, 20) (on file with the Columbia Law Review ) (“[F]ear of CPS oversight leads parents to limit their children’s access to mandatory reporters, resulting in decreased access to medical, welfare, legal, labor market, or educational institutions.”); Joe Soss & Vesla Weaver, Police Are Our Government: Politics, Political Science, and the Policing of Race–Class Subjugated Communities, 20 Ann. Rev. Pol. Sci. 565, 567 (2017) (explaining choice of the term “race–class subjugated”).[/footnote]—thus feeding families’ legal estrange-ment from the state and the body politic.[footnote]Cf. Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054, 2057, 2067 (2017) (describing how police practices “leave[] large swaths of American society to see themselves as anomic, subject only to the brute force of the state while excluded from its protection” and defining “legal estrangement” as the banishing, “at . . . an interactional and structural level,” of “whole communities from the body politic”).[/footnote]

This Article contends squarely with the central role of consent searches in the family regulation system. In doing so, it makes three central contributions.

First, it offers an initial descriptive account of how consent powers the family regulation home search apparatus, surveying the sorts of pressures that the state exerts on families to extract consent for searches. Statistical data on the frequency of home searches and what legal authority the state asserts to justify home searches is hard to come by—a problem that itself hints at the casualness of agencies’ home intrusions.[footnote]See infra Part I (recounting public records request responses from ten jurisdictions reflecting agencies’ failures to track the rate of or justifications for home searches and arguing that the lack of data reflects agencies’ inattention to constitutional constraints on searches); see also Email from Virginia Pickel, Tex. Dep’t of Fam. & Protective Servs., to author (June 17, 2024) (on file with the Columbia Law Review ) [hereinafter Pickel June 17 Email] (estimating a cost of $485,559 to report two years of data on the number of home searches and the justifications for them).[/footnote] Thus, this Article draws on primary sources including interviews, agency materials, legal filings, and court decisions to sketch out the role of consent searches and identify some of the tactics and pressures that agencies around the country rely on to gain consent.[footnote]For a more complete description of sources, see infra Part I.[/footnote] Given the fractured nature of the family regulation system[footnote]See Emilie Stoltzfus, Cong. Rsch. Serv., IF10590, Child Welfare: Purposes, Federal Programs, and Funding 1 (2025) (describing the allocation of responsibility for family regulation operations between local, state, and federal agencies).[/footnote] and limits on data, this Article does not purport to provide a definitive or unified national account. But it does reveal consent to be the default justification for family regulation home searches[footnote]See infra Part I.[/footnote] and yield a taxonomy of three recurring tactics agencies rely on to gain consent. All three tactics play out against a backdrop of parental fear and family regulation norms of compliance: (1) misrepresentations of investigators’ legal authority to conduct searches; (2) threats to arrest parents if parents refuse to consent; and (3) threats to remove children if parents refuse to consent.[footnote]See infra section II.A.[/footnote]

Second, following from this descriptive account, this Article advances a constitutional claim.[footnote]This Article analyzes the constitutionality of search tactics under the Fourth Amendment. It is plausible that certain agency policies and practices—such as policies classifying parents’ assertions of their Fourth Amendment rights as “safety risks” to their children, see infra section I.A—also violate the Unconstitutional Conditions Doctrine. See Kay L. Levine, Jonathan Remy Nash & Robert A. Schapiro, The Unconstitutional Conditions Vacuum in Criminal Procedure, 133 Yale L.J. 1401, 1430–37 (2024) (arguing that waivers of Fourth Amendment rights should be subject to the Unconstitutional Conditions Doctrine). Analyzing those constraints is for another day.[/footnote] Under current consent doctrine, consent is involuntary if a reasonable person would not feel free to refuse a state actor’s request for consent.[footnote]United States v. Drayton, 536 U.S. 194, 202 (2002).[/footnote] This Article reviews state and federal case law considering the voluntariness of consent searches in criminal investigations where criminal investigators extracted consent through tactics akin to routine family regulation tactics. That review shows that courts have found such tactics to be so coercive as to render consent involuntary under the existing standard.[footnote]See infra section II.B.[/footnote] Under current law, searches authorized by such coerced consent are as unconstitutional in the family regulation system as in the criminal legal system.[footnote]See infra section II.B. [/footnote]

This Article explains how systemic challenges to the constitutionality of agencies’ coercive tactics could knock down a central pillar of the family regulation system’s constitutional evasion and spur changes in agency practices through the legal process and public pressure.[footnote]See infra section II.C.[/footnote] But, it acknowledges, constitutional litigation is not a cure-all. Even when a constitutional violation can be established, remedies may be ineffective or nonexistent.[footnote]See infra section II.D.[/footnote] More fundamentally, the constitutional argument itself is limited. As criminal law scholars point out, the voluntariness standard does little to protect against implicit, rather than explicit, coercion.[footnote]See infra section II.D. [/footnote] Consent works no better in the family regulation domain than in other domains where it has failed.

Third, this Article takes up reforms that could fill the gaps left by constitutional consent doctrine and demonstrates the necessity of distinguishing between reforms seeking to limit or abolish consent (“consent reforms”) and reforms seeking to limit or abolish searches (“search reforms”).[footnote]See infra Part III.[/footnote] Jurisdictions across the country have begun enacting consent reforms in the family regulation and criminal legal systems.[footnote]Weisburd, Criminal Procedure Without Consent, supra note 27 (manuscript at 8) (identifying reforms in the criminal legal system); see also infra section III.A (describing reforms in the family regulation system).[/footnote] This Article surfaces a fundamental limit of consent reforms: They leave intact a vast search apparatus fueled by an altered consent doctrine or by warrants.[footnote]See infra section III.B.[/footnote] Thus, this Article reframes the consent search problem. Are we opposed to consent in its current form serving as a justification for searches? Or are we opposed to the searches themselves, regardless their justification? This Article points to a clear answer: Mitigating the harms of family regulation consent searches—and consent searches across the carceral state—requires recognizing surveillance itself as the problem.[footnote]See infra section III.B.[/footnote]

Through these contributions, this Article brings the rich criminal law literature critiquing consent searches into conversation with the growing body of family law scholarship positioning the family regulation system as one strand of a larger carceral net.[footnote]See, e.g., Cynthia Godsoe, Disrupting Carceral Logic in Family Policing, 121 Mich. L. Rev. 939, 942 (2023) [hereinafter Godsoe, Disrupting Carceral Logic] (explaining how the family regulation system is driven by and perpetuates carceral logic); Lisa Kelly, Abolition or Reform: Confronting the Symbiotic Relationship Between “Child Welfare” and the Carceral State, 17 Stan. J. C.R. & C.L. 255, 262 (2021) (highlighting parallels between policing and family regulation); Sarah H. Lorr, Disabling Families, 76 Stan. L. Rev. 1255, 1285 (2024) (arguing that the family regulation system produces parental disability); Nancy D. Polikoff & Jane M. Spinak, Foreword: Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being, 11 Colum. J. Race & L. 427, 430 (2021) (introducing a symposium considering how to provide for child well-being without the family regulation system); S. Lisa Washington, Pathology Logics, 117 Nw. U. L. Rev. 1523, 1533–34 (2023) [hereinafter Washington, Pathology Logics] (describing systemic processes and structures pathologizing parents); see also Clare Huntington, The Institutions of Family Law, 102 B.U. L. Rev. 393, 401 (2022) (calling for closer study of the institutions of family law). See generally Roberts, Torn Apart , supra note 2 (documenting the family regulation system’s racialized harms and arguing for its abolition).[/footnote] Family law scholars continue to puzzle through how the family regulation system comports with, or fails to comport with, the Fourth Amendment.[footnote]See, e.g., Coleman, supra note 7, at 415–19 (describing the absence of judicial scrutiny of Fourth Amendment issues in family regulation investigations); Josh Gupta-Kagan, Beyond Law Enforcement: Camreta v. Greene , Child Protection Investigations, and the Need to Reform the Fourth Amendment Special Needs Doctrine, 87 Tul. L. Rev. 353, 377–79 (2012) [hereinafter Gupta-Kagan, Beyond Law Enforcement] (arguing that the Fourth Amendment’s special needs doctrine doesn’t neatly explain family regulation search and seizure cases); Ismail, Family Policing, supra note 4, at 1490–91 (proposing a new analytical framework that would treat family regulation investigations as equivalent to any other targeted investigation conducted by government agents ).[/footnote] As recent scholarship highlights, the warrant requirement applies to home searches.[footnote]See Arons, Empty Promise, supra note 6, at 1060; Ismail, Family Policing, supra note 4, at 1539; see also infra note 122 (collecting circuit court cases finding that family regulation home searches must be justified by warrants, a warrant exception, or consent).[/footnote] This Article builds out the next dimension of Fourth Amendment analysis, explaining how consent intersects with coercion and absolves the state of justifying searches. At the same time, it situates family regulation searches as a source of harm distinct from family separations.[footnote]See infra section I.B.[/footnote] Through focused description of the harms of home searches, it complements the work of scholars who describe more broadly the harms of family regulation to parents, children, and communities.[footnote]See generally Friedman & Rohr, supra note 32, at 2 (arguing that high rates of overreporting in family regulation cases divert resources from cases that warrant intervention); Shanta Trivedi, The Harm of Child Removal, 43 N.Y.U. Rev. L. & Soc. Change 523 (2019) [hereinafter Trivedi, The Harm of Child Removal] (describing removal’s harms to children and arguing that such harms should be taken into account when ordering removal); Shanta Trivedi, The Hidden Pain of Family Policing, N.Y.U. Rev. L. & Soc. Change (forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm abstract_id=4715550 [https://perma.cc/Z2DY-N2PA] [hereinafter Trivedi, Hidden Pain of Family Policing] (cataloging the social, emotional, and physical harms parents endure in the course of family regulation proceedings).[/footnote] Though this Article’s descriptions and critiques focus most sharply on searches and their harms in the child neglect investigations that form the majority of family regulation investigations, this narrower focus does not mean searches are warranted or harmless in abuse investigations; rather, this focus is a capitulation to limited data and space.

This Article’s examination of reforms to consent searches in the family regulation system also provides new insights into the utility of such reforms in the criminal legal system. In this sense, it is a practical companion to recent criminal law scholarship advocating for limiting or abolishing consent.[footnote]See, e.g., Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness, 67 Fla. L. Rev. 509, 516 (2015) (arguing that courts should consider the reasonableness of requests for consent in determining the voluntariness of compliance); Stephen E. Henderson & Guha Krishnamurthi, A Wolf in Sheep’s Attire: How Consent Enfeebles Our Fourth Amendment, 85 Ohio St. L.J. 33, 65–66 (2024) (arguing for narrowing the circumstances in which consent can serve as legal authorization for a search); Christopher Slobogin & Kate Weisburd, Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver In Criminal Cases, 101 Wash. U. L. Rev. 1913, 1916 (2024) (arguing that consent should be irrelevant as a legal justification for searches in certain circumstances); Weisburd, Criminal Procedure Without Consent, supra note 27 (manuscript at 8) (documenting efforts in thirty-eight jurisdictions to limit consent as a justification for searches and arguing for limits on consent as a legal justification across criminal procedure).[/footnote] It also stands for a larger theoretical point. Family law scholars point out that the family regulation system is one strand of a larger carceral web, not collateral to the criminal legal system but interwoven with it and other systems of control.[footnote]See, e.g., Roberts, Torn Apart, supra note 2, at 162 (describing the “giant carceral web”); Godsoe, Disrupting Carceral Logic, supra note 50, at 941 (“Like the criminal system, the family-policing system is driven by, and in turn perpetuates, carceral logic . . . .”); Kelly, supra note 50, at 263 (“‘[C]hild welfare’ and policing are not just parallel, mirrored realities. The two systems are connected and feed one another.”); S. Lisa Washington, Fammigration Web, 103 B.U. L. Rev. 117, 123 (2023) [hereinafter Washington, Fammigration Web] (“The interplay between the family regulation and immigration systems produces intersystemic harms through the marking and subordination of noncitizen and mixed-status families.”).[/footnote] Yet too often, family and criminal law scholars default to the criminal legal system as a descriptive and normative baseline.[footnote]I thank Lisa Washington for generative conversations on this point. For another scholar who makes a similar point, see Benjamin Levin, Criminal Law Exceptionalism, 108 Va. L. Rev. 1381, 1387 (2022) (“The move to see punitive logics embedded in a host of U.S. institutions, from housing policy to employment law, strikes me as important in and of itself.”).[/footnote] This Article shows how taking a wider view of the carceral state—one that de-centers the criminal legal system—can reveal dynamics and paradigms that a narrower focus on criminal law obscures.

This Article proceeds in three parts. Part I describes the role of searches in family regulation investigations. It then situates those searches within a constitutional framework, explaining how the Fourth Amendment incentivizes reliance on consent searches and reviewing common critiques of consent.

Part II contends that routine family regulation investigative practices violate even the lax standard for voluntariness that governs in consent search jurisprudence. After describing some of those practices, it draws on case law stretching back more than sixty years—and reaching up to the Supreme Court—to show how these practices vitiate consent. Turning to practical implications, this Part describes the promise and limits of constitutional principles as a mechanism for increasing the privacy, dignity, and security of race–class subjugated families.

Part III shifts focus to state-law reforms aimed at remedying constitutional consent search deficiencies. It does not offer a conclusive set of policy recommendations. Instead, it outlines the stakes of how “the consent search problem” is framed. Different reforms flow from framing consent doctrine as the problem versus framing the searches themselves as the problem. This distinction raises a more fundamental point: Protecting race–class subjugated families from state overreach requires grappling with surveillance itself, not just legal justifications for it.

Family Regulation

FAMILY REGULATION’S CONSENT PROBLEM

FATHERHOOD, FAMILY LAW, AND THE CRISIS OF BOYS AND MEN