By Melissa Rickenbaker | Staff Editor

March 25, 2024

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Vermont, like all states, uses the “best interest of the child” standard in child welfare cases.[1] Vermont’s “best interest of the child” statute also mandates that child welfare cases be heard in court.[2] However, in many child welfare cases, the adversarial nature of the court system works against the best interest of the child.[3] The court system pits parents and children against each other[4] and fails to offer holistic solutions.[5] Therefore, Vermont’s “best interest of the child” statute works against itself, and Vermont children, by requiring all child welfare cases proceed in court. To truly meet the best interests of its children, Vermont should look to restorative solutions.

Court processes are inherently adversarial, with each party presenting its case to win.[6] In child welfare cases, an adversarial setting may not be conducive to fostering cooperation and finding collaborative solutions centered on the well-being of the child.[7] Courts traditionally focus on determining guilt or innocence and administering punishment if necessary.[8] However, child welfare cases often require a more rehabilitative and restorative approach that addresses the underlying issues rather than simply punishing wrongdoing.[9] Additionally, courts often lack family-centered approaches.[10] Proceedings may not adequately prioritize the involvement of the child’s family and support networks. Family-centered approaches, emphasizing collaboration and the child’s connections to their community, are often more effective in addressing the problems underlying child welfare cases.[11] Furthermore, in a courtroom setting, individuals may feel stigmatized, and there is a risk of labeling that can have long-lasting consequences.[12] A more rehabilitative approach outside the court system may focus on support and addressing challenges without attaching negative labels to children or families.[13]

Restorative Justice is an alternative to the judicial system.[14] Rather than punishing the offender, it focuses on “restoring” the victim through offender accountability.[15] There is no definitive mechanism for determining guilt; to participate in a restorative process, offenders must first take accountability for the harm they have caused.[16] Any offender unwilling to take full accountability is not an appropriate restorative justice candidate.[17] Offenders choose to take part in restorative processes because it allows them to avoid costly, time-consuming litigation.[18] RJ also allows offenders and victims to decide together on appropriate consequences. Such consequences are generally less severe than those imposed by the court system, despite its inclusion of criminal penalties.[19]

Restorative Justice is a valuable alternative to courts in child welfare determinations for several reasons. Perhaps most importantly, it offers a more holistic and collaborative method compared to traditional punitive measures.[20] Restorative Justice emphasizes the well-being of the child and focuses on repairing harm rather than punitive measures.[21] This approach seeks to understand the root causes of the issues and address them to promote healing and rehabilitation.  Restorative Justice involves the community in the resolution process.[22] In child welfare cases, this should mean engaging not only the child and their family but also relevant community members, social workers, and support networks.[23] This broader involvement helps create a sense of shared responsibility. Restorative justice empowers all parties involved, including the child, their family, and the community, to actively participate in finding solutions.[24] By taking responsibility for their actions and understanding the impact on others, children can develop a sense of accountability and empathy.[25]

Focusing on restoration rather than punishment can be more effective than punishment in preventing repeat offenses.[26] This is particularly important in the context of child welfare, where the goal is not only to address immediate concerns but also to support the child’s long-term well-being.[27] Traditional punitive measures can be traumatic for children and families.[28] Restorative Justice seeks to minimize additional trauma by providing a more supportive and collaborative environment.[29] This approach is particularly significant in cases where children have experienced trauma and need a more sensitive and understanding process.[30] Restorative Justice encourages open communication and dialogue between all parties involved.[31] This can lead to a better understanding of each other’s perspectives and foster empathy, contributing to more effective and sustainable solutions for children and families.

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[1] Stephanie Tang, Best Interests of the Child and the Expanding Family, 14 U.C. Irvine L. Rev. (2024).

[2] 33 V.S.A. § 5114 (2009).

[3] Lauren van Schilfgaarde, Brett Lee Shelton, Using Peacemaking Circles to Indigenize Tribal Child Welfare, 11 Colum. J. Race & L. 681, 699 (2021).

[4] Randy Balko, Is an adversarial justice system compatible with good science?, Washington Post (Aug. 7, 2019, 10:00 AM), https://www.washingtonpost.com/opinions/2019/08/07/is-an-adversarial-justice-system-compatible-with-good-science/. /

[5] Tali Gal, Child Victims and Restorative Justice: A Needs-Rights Model 27 (Oxford University Press ed., 2001).

[6] Balko, supra note 4.

[7] Apoorva Mandhani, Family courts aren’t safe for children. They need waiting rooms, counsellors & Mickey Mouse, Print (Oct. 6, 2023, 1:15 PM) https://theprint.in/ground-reports/family-courts-arent-safe-for-children-they-need-waiting-rooms-counsellors-mickey-mouse/1792516/.

[8] Janet Weinstein, And Never the Twain Shall Meet: The Best Interest of Children and the Adversary System, 52 U. Miami L. Rev. 79, 89 (1997).

[9] Id.

[10] Id.

[11] Mandhani, supra note 7.

[12] Miguel Clemente & Dolores Padillo-Racero, The effects of the justice system on mental health, Nat’l Libr. Of Med. (May 5, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8009114/.

[13] Id.

[14] Lindsay Pointer, What is “Restorative Justice” and How Does it Impact Individuals Involved in Crime?, Bureau of Justice Assistance U.S. Dept. of Justice (Aug. 5, 2021), https://bjatta.bja.ojp.gov/media/blog/what-restorative-justice-and-how-does-it-impact-individuals-involved-crime.

[15] Id.

[16] Id.

[17] Kristin M. Blankley, Expanding Options for Restorative Justice, Dispute Resolution Magazine (March 31, 2020) https://www.americanbar.org/groups/dispute_resolution/publications/dispute_resolution_magazine/2020/dr-magazine-criminal-justice-reform/expanding-options-for-restorative-justice/.

[18] Id.

[19] Pointer, supra note 14.  

[20] Gal, supra note 5.

[21] Restorative Justice for Juveniles, Office of Juvenile J. and Delinquency Prevention (Aug. 2021),

 https://ojjdp.ojp.gov/model-programs-guide/literature-reviews/restorative-justice-for-juveniles#0-0.

[22] Id.

[23] Id.

[24] Id.

[25] Marieke van Wowekom, Building Community with Restorative Circles, edutopia: Restorative Practices, (Mar 12, 2018), https://www.edutopia.org/article/building-community-restorative-circles/; Dr. James Whithead, Restorative Practices: Seven Steps for Facilitators and Mediators.

[26] The Benefits of Restorative Justice for Victims and Offenders, Restorative Solutions,

https://www.restorativesolutions.org.uk/news/the-benefits-of-restorative-justice-for-victims-and-offenders (last visited Feb. 9, 2023).

[27] Restorative Justice for Juveniles, supra note 21.

[28] Weinstein, supra note 8.

[29] Id.

[30] Mandhani, supra note 7.

[31] Restorative Justice for Juveniles, supra note 21.