Best Interest Fact-or-Fiction: Considering Deception and Danger Facing Children Whose Parents Work Undercover

Undercover agents, confidential informants, spies, and operatives (herein, “undercovers”) may be forced to lie to their children and conscript their children into undercover work. When agents work undercover, their children may be emotionally, physically, and psychologically neglected or harmed. Children may be forced to believe and participate in a religion or culture merely as a front for their parents’ work, and they may be deceived about their ethnicities, family history, status, and other fundamentally important bases of their identities. Undercover agents and operatives may force their children to keep secrets; serve as information couriers; lie; and participate in espionage, subversion, or information-gathering. Local authorities, federal agents, and foreign operatives may generally function using these tactics. Children may learn the truth later in life and suffer severe trauma and dysfunction, or they may be coerced into maintaining covers and conspiracies throughout their lives, further exposing themselves to danger, and, potentially, criminal charges. This Article discusses undercover work in which families maintain covert identities. Section Two discusses deep deception required to maintain covers. This Section explains the importance of therapeutic treatment as a regular part of debriefing undercovers and concluding undercover work. This Section also describes the systemic lack of instruction, debriefing, or institutional concern for children in undercover situations and families. These children may include children who are placed at risk by their parents and children who are deceived by their parents. These children are victims of undercover work. Section Two also suggests that agencies using undercover agents should provide help children mitigate their trauma. Section Three compares undercover family life to the Witness Protection Program to demonstrate the severity and austerity that may befall undercovers’ children. Section Three compares various governmental policies on minor informants and child spies to argue that undercovers’ children may be vulnerable and deserve legal safeguards. Section Four explains why parental rights may not extend to situations in which undercover parents conscript their children into risky or illegal situations. Section Four analyzes criminal liability for undercovers and potential criminal liability for children who willfully collude with their parents who operate illegally to gather or supply information. Constitutional limitations discussed in Section Four include limitations on the First Amendment, Fourth Amendment, and Fifth Amendment. Section Five proposes that a “best interest” standard derived from family law should be expanded to apply to undercovers’ children. Section Five argues that judicial approval should be sought in cases where undercovers’ children may potentially risk harm or psychological trauma. Section Five contends that, under the best interest standard, children of undercovers who were psychologically harmed or threatened by their parents’ work may be removed from their parents’ care. Section Six concludes that undercovers’ agencies should attend to possible risks facing children and provide therapeutic treatment. Furthermore, courts should weigh various factors on a case-by-case basis to determine whether undercover work is in a child’s best interests.