Martin Guggenheim’s views were once controversial: Parents accused of child abuse and neglect deserve quality lawyers. Kids are removed from home far too often, simply because their families lack resources. Foster care routinely makes life worse, not better, for those who end up being raised by the government.
Now, even officials who served in the conservative Trump administration have echoed such notions about America’s child welfare system. Stalwart institutions from the American Bar Association to United Nations committees have called out racism and injustice in America’s method of child protection.
Yet as his views have recently found a more receptive audience, Guggenheim, 76, is stepping down this fall as head of the New York University School of Law’s influential Family Defense Clinic — the nation’s first legal training institute dedicated to representing parents accused of child maltreatment. Although he will continue advocating for national policy reforms, Guggenheim’s retirement marks the formal end to his five-decade career in Family Court.
His once-provocative opinions are arguably more discussed and widely promoted in the child welfare field than ever before. In recent years, he has been instrumental in helping launch a nascent “family defense movement,” which includes parents, lawyers, justice advocates and even some former government officials.
“No one has done more than Marty to move this field towards justice — even when no one seemed to care about justice,” said attorney Kathleen Creamer, a legal advocate whose pro bono law firm is currently suing the state of Pennsylvania over its practice of placing parents accused of child maltreatment on a public registry for life.
Guggenheim, a native of New York and married father of three, began his legal career representing children accused of crimes, just four years after a landmark 1967 Supreme Court decision significantly expanded juveniles’ due process rights under the constitution. The case marked a new legal era in the field, and began to professionalize the often slapdash proceedings in family courts. It also inspired nationwide advocacy efforts centered on children’s rights.
But Guggenheim focused on another trend that disturbed him, one which ultimately led to his split from that emerging field: how easily children were wrenched from home following allegations of abuse and neglect — family separations that overwhelmingly affected marginalized communities, particularly Black and Indigenous populations.
Against the prevailing tide, in 1990, Guggenheim launched what for many years was the nation’s only parent defense clinic based at a law school. He has argued against focusing solely on parents’ personal shortcomings, in a society that fails to provide adequate housing, nutrition, safe neighborhoods, health care and quality education for all.
Foster care — he said in a recent interview with The Imprint that epitomized his sometimes blunt manner — causes “the needless destruction of families, exacting grave harm on children and their loved ones.” It turns children into “legal orphans,” and after ruining their lives, allows them “to fail in high school and grade school, and nobody in the system gives a shit.”
The goal of the movement he helped lead, Guggenheim said, “is to fight the violence that the state every single day is imposing.”
Guggenheim summarized his views in his polemical 2005 book “What’s Wrong with Children’s Rights?” He also described how his views left him ostracized by some leaders in the child welfare field, who labeled him as “anti-child.”
“I lost that battle of monikers,” he wrote, lamenting that the field has remained more preoccupied with improving foster care for children than preventing them from entering in the first place.
Among those long critical of Guggenheim’s perspective is Elizabeth Bartholet, an emeritus professor at Harvard Law School who has rebutted his work. In contrast with his positions, she has urged policymakers to be “wary of any move to reduce the number of black children in foster care by simply keeping more black children at home, without having first fundamentally changed the nature of what goes on at home.” Since the 1990s, Bartholet has been one of the most consistent advocates for adoption from foster care.
“Marty Guggenheim has been influential in promoting a parents’ rights perspective,” Bartholet said in an email to The Imprint, adding: “I think this has been damaging to the cause of giving child rights equal value in child welfare law and policy, especially because he claims his views are consistent with child rights, and because he is a powerful advocate.”
Still, while Guggenheim has remained singularly outspoken, he has never been alone in this work. “What’s Wrong with Children’s Rights” cites the University of Pennsylvania scholar Dorothy Roberts’ seminal 2001 book on racism in the child welfare system. Grassroots New York City groups of accused parents like People United for Children and the Child Welfare Organizing Project were active for decades.
Guggenheim is also board president of the National Coalition for Child Protection Reform, a small but influential Virginia-based nonprofit that urges journalists and policymakers nationwide to consider the “family defense” perspective. Through the American Bar Association’s National Alliance for Parent Representation he helped convene dozens of other legal advocates, including his longtime co-director at NYU’s Family Defense Clinic, Chris Gottlieb.
“You can’t walk into a room full of people doing the highest level of work in this field without finding a student of Marty’s,” Gottlieb said. “He can move a room — and has, over and over again — and that has galvanized people.”
In reflecting on his career, Guggenheim described fighting for the very notion of child maltreatment to be reconsidered and expanded upon. Abuse, he said, should include officials allowing children in public housing to grow up with lead paint, rodents and poor plumbing, and failing to fund quality day care, and gutting cash assistance programs.
“I want every child welfare official in the country to focus on the ways in which the government itself harms children,” he said.
Guggenheim’s courtroom work began in 1971, at the pioneering juvenile rights divisions of New York City’s Legal Aid Society and then the American Civil Liberties Union, some 20 years before he launched the NYU practice. He’s authored or co-authored seven books, among them several widely disseminated guides to family law, and has argued three cases before the U.S. Supreme Court. He prevailed in one of those cases, which led to child welfare agencies having to meet a higher standard of evidence before permanently terminating parents’ custody rights. Critics such as Bartholet described the ruling as one that “failed entirely” to protect children from unfit parents.
This month, more than a hundred people, including several judges and city officials he’s battled with in the past, gathered at the New York City Bar Association headquarters to celebrate Guggenheim’s legacy. Many speakers noted that the tide seems to be turning his way.
As he retires, the number of children in foster care in New York City and nationwide has reached their lowest levels in decades. Roberts’ new book released in April has generated another surge of mainstream interest in the field. The federal government recently provided unprecedented new funding for parents’ attorneys. And the message and ideas Guggenheim helped formulate in papers, books and legal arguments continue to be amplified by many more vocal, younger and diverse voices that include parents who’ve lost their children to foster care.
One of the attendees at this month’s gathering in honor of Guggenheim, leading New York City parent advocate Joyce McMillan, had just returned from Geneva, Switzerland, where she testified before a United Nations subcommittee. Its members would later issue a statement describing their concern about America’s “disproportionate number of children of racial and ethnic minorities removed from their families and placed in foster care.”
McMillan, who rose to activism after losing her own child to foster care for a time, said Guggenheim aided in the battle for others like her to be seen and heard: “I could never thank Marty enough for his advice,” she told the crowd.