 Constitutional Rights
PARENTING AS A
FUNDAMENTAL RIGHT
Contents
Introduction - why both parents have a right
to raise their children without government interference.
Parenting as a Constitutional Right
Articles - important law journal and public
policy papers
Current actions:
Case law - important precedents
"The interest of the parents in the care, custody, and control
of their children—is perhaps the oldest of the fundamental
liberty interests recognized by this Court."
U.S. Supreme Court, 2000
"Although the dispute is symbolized by a 'versus' which signifies
two adverse parties at opposite poles of a line, there is in fact
a third party whose interests and rights make of the line a triangle.
That person, the child who is not an official party to the lawsuit
but whose well-being is in the eye of the controversy, has a right
to shared parenting when both are equally suited to provide it.
Inherent in the express public policy is a recognition of the child's
right to equal access and opportunity with both parents, the right
to be guided and nurtured by both parents, the right to have major
decisions made by the application of both parents' wisdom, judgement
and experience. The child does not forfeit these rights when the
parents divorce."
Judge Dorothy T. Beasley, Georgia Court of Appeals,
"In the Interest of A.R.B., a Child," July 2, 1993
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Introduction
Supreme court decisions have found that "the interest of parents
in their relationship with their children is sufficiently fundamental
to come within the finite class of liberty interests protected by
the Fourteenth Amendment." Because a fundamental right cannot
be denied without a compelling state interest that cannot be achieved
by any less restrictive means, some legal scholars believe that,
in the absence of abuse or neglect, parents have a right to both
legal and physical joint custody. The argument is straightforward:
(1) A parent's right to raise a child is a constitutionally protected
liberty interest. This is well established constitutional
law.
(2) State's granting of sole custody is sufficiently intrusive
to warrant scrutiny, i.e., granting sole custody to one parent impinges
on the rights of the other parent to a significant extent.
This is obvious to the most casual observer. A parent whose
time with a child has been limited to the typical four-days-per-month
visitation clearly has had his or her rights to raise that
child severely restricted.
(3) The compelling state interest in the best interest of the child
can be achieved by less restrictive means than sole custody.
A quarter-century of research has demonstrated that joint physical
custody is as good or better than sole custody in assuring the best
interest of the child.
This collection of data has been assembled to assist children's
advocates in securing a child's rights to both parents through legislation
or litigation.
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PARENTING AS A PROTECTED CONSTITUTIONAL RIGHT
Don Fischer, March 8, 2001
The U.S. Supreme Court long ago noted that a parent's right to
"the companionship, care, custody, and management of his or her
children" is an interest "far more precious" than any property right.
May v. Anderson, 345 U.S. 528, 533, 97 L. Ed. 1221, 73 S.Ct. 840,
843 (1952). In Lassiter v. Department of Social Services,
452 U.S. 18, 27, 68 L. Ed. 2d 640, 120 S.Ct. 2153, 2159-60 (1981),
the Court stressed that the parent-child relationship "is an important
interest that 'undeniably warrants deference and absent a powerful
countervailing interest protection.'" quoting Stanley v. Illinois,
405 U.S. 645, 651, 31 L. Ed 2d 551, 92 S. Ct. 1208 (1972)
In Troxel v. Granville, 527 U.S. 1069 (1999) Justice O'Conner,
speaking for the Court stated,
"The Fourteenth Amendment provides that no State shall
'deprive any person of life, liberty, or property, without due process
of the law.' We have long recognized that the Amendment's
Due Process Clause like its Fifth Amendment counterpart, 'guarantees
more than fair process.' The Clause includes a substantive component
that 'provides heightened protection against governmental intereference
with certain fundamental rights and liberty interest" and "the liberty
interest of parents in the care , custody, and contol of their children-is
perhaps the oldest of the fundamental liberty interest recognized
by this Court."
Justice Thomas concurring in the majority's opinion said, "The opinions
of the plurality, Justice Kennedy, and Justice Souter recognize such
a right, but curiously none of them articulates the appropreate standard
of review. I would apply stict scrutiny to infringments of fundamental
rights."
This is not to say that courts should blindly or automatically
impose joint custody arrangements. Clearly, there are many situations
where joint custody is neither appropriate nor practical.
Whenever a parent-child relationship is restricted by a family court
order such restrictions must be done in the least restrictive manner.
The standard that most states apply in deciding child custody is
"the best interest of the child". The CRC does not believe that
such a standard should be done away with, however, CRC believes
such a standard should be balanced with parental rights. As
we find in Reno v. Flores, 507 U.S. 292, 301 (1993)
'The best interest of the child,' a venerable phrase familiar
from divorce proceedings, is a proper and feasible criterion for
making the decision as to which of two parents will be accorded
custody. But it is not traditionally the sole criterion --
much less the sole constitutional criterion -- for other, less narrowly
channeled judgments involving children, where their interest conflict
in varying degrees with the interest of others. Even if it were
shown, for example, that a particular couple desirous of adopting
a child would best provide for the child's welfare, the child would
nonetheless not be removed from the custody of its parents so long
as they were providing for the child adequately.
Similarly, "the best interest of the child" is not the legal standard
that governs parents' or guardians' exercise of their custody: so
long as certain minimum requirements of the child is met, the interest
of the child may be subordinated to the interest of other children,
or indeed even to the interests of the parents or guardians themselves.
"The best interest of the child" is likewise not an absolute and exclusive
constitutional criterion for the government's exercise of the custodial
responsiblities that it undertakes, which must be reconciled with
many other responsibilites.
Narrow tailoring is required when fundamental rights are involved.
Thus, the state must show adverse impact upon the child before restricting
a parent from the family dynamic or physical custody. It is
apparent that the parent-child relationship of a married parent
is protected by the equal protection and due process clauses of
the Constitution. In 1978, the Supreme Court clearly indicated
that only the relationships of those parents who from the time of
conception of the child, never establish custody and who fail to
support or visit their child(ren) are unprotected by the equal protection
and due process clauses of the Constitution. Quilloin v. Walcott,
434 U.S. 246, 255 (1978). Clearly, divorced parents enjoy
the same rights and obligations to their children as if still married.
The state through its family law courts, can impair a parent-child
relationship through issuance of a limited visitation order, however,
it must make a determination that it has a compelling interest in
doing so. Trial courts must, as a matter of constitutional
law, fashion orders which will maximize the time children spend
with each parent unless the court determines that there are compelling
justifications for not maximizing time with each parent.
Maximizing time with each parent is the only constitutional manner
by which a parent is able to maintain a meaningful parent-child
relationship after divorce. While geographic distance, school schedules
and the like must be factored into the custody and visitation calculus,
trial courts faced with a custody and visitation decision must accord
appropriate constitutional respect to maintain a healthy parent
child relationship by granting each parent as much time as possible
with the child under the circumstances of each case.
The federal Due Process and Equal Protection rights extend to both
parents equally, for example, in adoption proceedings. In Caban
v. Mohammed, 441 U.S. 380, (1979) the Supreme Court found that a
biological father who had for two years, but no longer, lived with
his children and their mother was denied equal protection of the
law under a New York statute which permitted the mother, but not
the father, to veto an adoption. In Lehr v. Robinson (1983)
463 U.S. 248, the Supreme Court held that 'When an unwed father
demonstrates a full commitment to the responsibilities of parenthood
by 'com[ing] forward to participate in the rearing of his child,'
Caban, [citations omitted], his interest in personal contact with
his child acquires substantial protection under the Due Process
Clause." (Id. at 261-262)
Clearly the "best interests of the child" standard is to be read
in light of the requirement that the parental-child relationship
remain intact. Nor should the natural father's federal constitutional
rights depend upon the identity of the person attempting to infringe
upon them. That is, the threshold showing required to impinge upon
a parent's relationship with one's children should not be less when
married than when unmarried. One's rights should not be less
when the biological mother seeks to attack the protected relationship
than when a potential adopter seeks to attack that relationship.
The courts have clearly held that the degree of protection afforded
parental rights does not depend upon the relationship between the
mother and the father. Simply, the protection afforded the parent-child
relationship is not lessened because the relationship between the
parents has been altered by marital dissolution. In every
circumstance under which a parental right to physical custody may
be terminated in which the courts have spoken on the standard of
proof to be applied, the holding has been that the proof must be
by clear and convincing evidence. In those cases where joint
physical custody is not ordered in a divorce setting, the parent
without custody has been deprived of physical custody, just as in
any other setting. The identity of the person who has custody
of the child is irrelevant to the requisite proof required to deprive
one parent of physical custody. Surely an action to determine whether
a parental right should be retained is as fundamental to the parent
child relationship as an action to terminate that relationship.
The impact these judicial decisions have on the lives of all concerned
cannot be overestimated. Childhood passes rapidly and it quickly
becomes too late to unring the bell. Expanded visitation or
joint custody may seem unimportant, but only to those who have never
experienced the hollow time of forced separation. " No human
bond is of greater strength than that of parent and child" Michelle
W. v. Ronald W., 39 Cal. 3d354 (1985). Seton Hall Professor
Holly Robinson has spelled out this argument in detail:
It is accepted constitutional doctrine that the due process
clause of the Fourteenth Amendment protects interests that are recognized
as constituting "life" or Property". In a number of decisions, the
Supreme Court has recognized that individuals possess a fundamental
liberty interest -- entitled to constitutional protection
-- regarding such matters as the decisions whether to have children,
decisions concerning the upbringing of children, and the retention
of their children through exercise of custody. Read together, the
cases clearly establish a zone of privacy around the parent-child
relationship, which only can be invaded by the state when the state
possesses a sufficiently compelling reason to do so. As a
result, when the marital breakdown occurs, both parents are entitled
to constitutional protection of their right to continue to direct
the upbringing of their children through the exercise of custody.
Adequate protection of this parental right requires that parents
be awarded joint custody [or expansive visitation]...unless a compelling
state interest directs otherwise. H.L. Robinson, "Joint Custody:
Constitutional Imperatives", 54 Cinn. L. Rev. 27, 40-41 (1985) (footnotes
omitted). See also, Ellen Cancakos "Joint Custody as a Fundamental
Right". Arizona Law Review, Vol. 23, No. 2 (Tucson, Az: University
of Arizona Law College), Tuscon, 95721. See also, Cynthia
A. McNeely: "Lagging Behind the Times: Parenthood, Custody, and
Gender Bias in the Family Court", 25 Fla. St. U.L. Rev. 335, 342+
(1998)
This proposition that the parent-child relationship in a traditional
custody and visitation dispute commands constitutional respect is
admittedly lacking a long life of specific case authority approving
it. This lack of specific case authority is not fatal to the proposition's
vitality. At least one federal court has found that the paucity of
cases recognizing the constitutional sanctity in the past. That court
further held that the historical absence of a strong tradition should
not result in denial of the constitutional protection for such relationships
as they become increasingly prevalent. See Franz v. United States,
supra.
To further underscore the need for courts to consider the constitutional
protections which attach in family law matters, one need only look
to recent civil rights decisions. In Smith v. City of Fontana, 818
f. 2d 1411 (9th Cir. 1987), the court of appeals held that in a
civil rights action under 42 U.S.C. section 1983 where police had
killed a detainee, the children had a cognizable liberty interest
under the due process clause.
The analysis of the court included a finding that " a parent has
a constitutionally protected liberty interest in the companionship
and society of his or her child. Id. at 1418, citing Kelson v. City
of Springfield, 767 F. 2d 651 (9th Cir. 1985). In Smith the
court stated " We now hold that this constitutional interest in
familial companionship and society logically extends to protect
children from unwarranted state interference with their relationships
with their parents." Id.
A failure to accord appropriate constitutional respect to the parent-child
relationship between the parties herein and the minor child
by failing to award joint custody or substantial parental contact
would be error. We respectfully request that this Court fashion
a court order which will maximize the available time the minor will
spend with each parent.
CONCLUSIONS
Given the long history of cases by the Supreme Court it can no
longer be doubted that the child's best interest must be weighed
with a parent's fundamental liberty interest in parenting their
child without undue interference by the state. Custody orders must
bear sufficient respect for the constitutional protections inherent
in the parent-child relationship.
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Law Journal Articles and Public Policy
Documents
Daniel Lee, "Family
Law and the Collapse of Culture",
Free Congress Commentary, July 24, 2001.
- "Attorneys reading this may protest, "but there will be chaos
if a primary custodian isn't designated!" I think not, but besides
that due process requires that where fundamental rights
are at stake there cannot be an automatic infringement on them.
Rather the burden is on the state to prove its compelling interest
(substantial harm) in each individual instance prior to considering
the remedy (means has a very tight fit with the ends). If it is
found the child is in substantial harm, the court must then issues
orders as narrow as possible. That precludes any nationwide
policy as exists today to award every other weekend visitation
and two or so weeks in the summer."
- "Family law is a symptom of a sickness in the body politic.
It can spread and be fatal, or can be cured. To date few persons
have been aware of it, although parents in the homeschool movement
seem to be taking a preemptive action to remove their children
from the state's grasp. But it is probably now clear to all, the
substantial harm standard is what protects these homeschooling
parents too. Without it the state can dictate what they may and
may not teach their children. As in other areas of family law
destroy the substantial harm standard, and so too do these and
other protections disappear."
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Walther,Christopher D.
"
Wisconsin's Custody, Placement, and Paternity Reform Legislation
," Wisconsin Lawyer, Vol. 73, No. 4, April 2000
"The changes to custody and placement law attempt to strike
a delicate balance between the constitutionally protected rights
of parents to raise their children without undue state interference,
and the best interests of their children, who are the innocent
victims of the breakup of their parents' relationship. "
"The law now is harmonized so that parents in custody
disputes with each other enjoy the same rights they already
enjoyed under established law governing custody disputes with
third parties. In the 1984 third party (grandparent) custody
case, Barstad v. Frazier,1 the Wisconsin Supreme Court held:
"Under ordinary circumstances, a natural parent has a protected
right under both state law and the United States Constitution
to rear his or her children free from governmental intervention.
Absent compelling reasons narrowly defined, it is not within
the power of the court to displace a fit and able parent simply
because in the court's view someone else could do a 'better
job' of 'parenting.'" A parent's right to custody of his or
her child originates from state law and the U.S. Constitution,
and not from an award of custody by a court. A court now has
limited authority to take away that right absent extraordinary
circumstances."
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Hubin, Donald C., "Parental
Rights and Due Process," Journal of Law and Family
Studies, vol. 1, no. 2. University of Utah, 1999.
pp. 123-150.
"The U.S. Supreme Court regards parental rights as fundamental.
Such a status should subject any legal procedure that directly
and substantively interferes with the exercise of parental rights
to strict scrutiny. On the contrary, though, despite their status
as fundamental constitutional rights, parental rights are routinely
suspended or revoked as a result of procedures that fail to
meet even minimal standards of procedural and substantive due
process. This routine and cavalier deprivation of parental rights
takes place in the context of divorce where, during the pendency
of litigation, one parent is routinely deprived of significant
parental rights without any demonstration that a state interest
exists-much less that there is a compelling state interest that
cannot be achieved in any less restrictive way. In marked contrast
to our current practice, treating parental rights as fundamental
rights requires a presumption of joint legal and physical custody
upon divorce and during the pendency of divorce litigation.
The presumption may be overcome, but only by clear and convincing
evidence that such an arrangement is harmful to the children."
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McNeely, Cynthia "Lagging Behind the Times: Parenthood, Custody, and Gender
Bias in the Family Court". Florida State Law Review,
September, 1998.
"A claim that fundamental rights have been violated
requires the reviewing court to apply strict, rather than intermediate,
scrutiny. Thus, the state would need to show a necessary and compelling
interest to justify its interference with the father's fundamental
right. This argument might best be raised in a situation where
both parents are fit, reside in the same community, and are suitable
for rotating or joint physical custody, yet the trial court awards
the mother primary residential custody and the father visitation
of every other weekend.[307] When an activity is constitutionally
protected, as is the fundamental right to parent, a state must
chose the least restrictive means possible to achieve its goal.[308]
Absent good cause, it would appear that the court, in this situation,
would be interfering with the father's fundamental right to parent
his child; the father, then, should be entitled to a review of
strict scrutiny. "
^top
Henry, Ronald K., "Divorce
Reform and the Fathers' Movement" , Congressional Testimony.
"From birth and throughout the marriage, the law recognizes
that the child has two parents. Both of these parents have unrestricted
access and equal custodial rights with respect to the child. A
custody decree is an order which restricts parents' access and
custodial rights with respect to the child and like any other
injunction, enjoins the parents from the exercise of their former,
unrestricted rights.
While a custody decree is an injunctive order, the courts too
often fail to apply the principles that are applicable to all
other injunctions. In all other situations, the guiding principle
is that injunctive relief should be carefully crafted to impose
only such minimum restrictions upon the parties' prior freedom
as is required to resolve the present dispute. In contrast and
largely because of the past swings of the pendulum (automatic
father sole custody, automatic mother sole custody), the most
common custody decrees issued by the courts today impose maximum
rather than minimum change upon the parent-child relationship."
^top
Oddenino, Michael. "Joint Custody As a Child's
Constitutional Right", 1994.
Robinson, Holly. "Joint Custody: Constitutional
Imperatives", University of Cincinnati Law Review, 1985.
Canacakos, Ellen. "Joint Custody as a Fundamental
Right", Arizona Law Review, v.23 n. 2 (1981). pp. 785-800.
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CURRENT ACTIONS
Constitutional challenges to family law are underway in many states.
Below are links to relevant current cases (Note: these
actions were not initiated by CRC, and CRC does not necessarily
agree with or support all positions of these organizations.
We report them here because they have a bearing on parents' constitutional
rights to raise their children.)
California
The California Law Revision Commission received a formal request
from Dwain S. Barefield to amend the state's family law to recognize
both parents' rights to equal participation in raising their children.
The commission refused to consider the action, concluding "The staff
doubts that a Law Revision Commission recommendation on the matter
would have much impact on the Legislature or Governor."
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Colorado
Center for Children's Justice - "This is a civil rights action,
under state and federal law, challenging prior and newly-enacted
Colorado statutes which compel the State's judiciary to make awards
of child custody and parenting time, or allocation of parental responsibilities
and rights and allocation of parenting time, within the context
of dissolution of marriage actions and post-decree of dissolution
of marriage actions concerning children. This action is brought
by the above-named individual to obtain a declaratory judgment that
the challenged statute, in both its prior and present form, violates
well-recognized rights, including the right to due process of law,
the right to equal protection of the law, and the right to the care,
custody, control, companionship and nurture of one's offspring embodied
in the fundamental liberty interest in family, which rights are
secured by the Fourteenth Amendment of the United States Constitution
and by Art. II, Secs. 3, 6, 25 and 29 of the Colorado Constitution.
"
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Georgia
Sweat v. Sweat - Georgia's child support guidelines have been
ruled unconstitutional. Some parts of this decision have a
bearing on the constitutional isses related to shared parenting.
In particular, equal protection considerations from the opinion:
Equal Protection
The United States' Constitution provides that no state may
"deny to any person within its jurisdiction the equal protection
of the laws." U.S. Const., Am. XIV, section 1. Ga. Const.,
Art. I, section I, paragraph 2 provides essentially the same
protection.
The egregiously different burdens and benefits placed on persons
similarly situated but for the award of custody, i.e., parents
with the obligation to support their child(ren) and the same
means for doing so as when they were married, has been explained
at length above. This Court finds that such disparate treatment
violates the guarantees of equal protection cited above. Jones
v. Helms, 452 U.S. 412, 101 S. Ct. 2434 (4,5) (1981), South
Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S.
Ct. 1180 (1999), Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620
(1996) and Simpson v. State, 218 Ga. 337 at 339 (1962). The
Guidelines do not result in awards based on the constitutionally
sound principles of equal duty and proportional obligation (proportional
to available financial resources such as each parent's income).
See Smith v. Smith, 626 P 2d 342, 345-348 (Oregon, 1980); Meltzer
v. Witsberger, 480 A.2d 991 (Pa. 1984); and Conway v. Dana,
318 A.2d 324 (Pa. 1985).
Full text of the opinion is here: Judge
C. Dane Perkins' opinion
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Michigan
"Proposed amendment to the State of Michigan constitution promoting
thebest interests of the child to have equal access to both parents."
New York
Press Release - New York State Custody Laws Challenged
in Federal Court; Local Family Court Judge Named as Defendant
May 12th, 2003 — On April 30th, 2003, a lawsuit was filed
in Federal District Court for the Northern District of New York
challenging New York State's statutory scheme for awarding custody
of minor children. The current custody statutes in New York State
presume that neither parent has a right to custody and that custody
will be awarded based solely on the discretion of the trial court
judge using the "children's best interest" standard.
Harold L. Rosenberger of Highland, New York filed the lawsuit.
Mr. Rosenberger asserts that the current New York State custody
statutes are unconstitutional because they fail to explicitly guarantee
the parental rights of both parents, rights that have been deemed
by the United States Supreme Court to be a "liberty interest" protected
by the 14th Amendment of the U.S. Constitution.
The lawsuit also alleges that the Family Court Judge who presided
over a custody trial exceeded her jurisdiction by placing a constraint
on Mr. Rosenberger's visitation, while not applying that same constraint
to the custodial parent's visitation. Ulster County Family Court
Judge Marianne O. Mizel ordered that "during any of Mr. Rosenberger's
periods of visitation, the children shall not be left unattended
for more than fours hours."
The three children are ages 16, 16 and 10.
Mr. Rosenberger hopes that the lawsuit will proceed on its merits,
and that ultimately the federal court will rule that the current
New York State custody statutes are unconstitutional. He asserts
that in a custody action, a fit parent may not be denied equal legal
and equal physical custody of a minor child without a finding by
clear and convincing evidence of parental unfitness and/or substantial
harm to the child.
In August of 2001, Mr. Rosenberger was designated a non-custodial
parent and ordered to pay child support. His ex-wife was given sole
legal custody and sole physical custody of the children. The lawsuit
names Governor George E. Pataki and Ulster Family Court Judge Marianne
O. Mizel as defendants.
Contact:
Harold L. Rosenberger
845-691-8835
HLRosenberger@Hotmail.com
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Ohio
PRESS RELEASE from Michael A. Galluzzo
Federal Court Certifies Equal Custody Question in Ohio
September 27, 2002
On Sept. 24, 2002, Federal Magistrate Judge Michael Merz, United
States District Court for the Southern District of Ohio, Western
Division at Dayton, (Michael A. Galluzzo vs. Champaign County
Court of Common Pleas, et al., Case No. C-3-01-174) filed an
order joining the State of Ohio as a party into a case to defend
the constitutionality of Ohio statues that allow courts to deny
due process in removing custody from a fit parent in divorce situations
without a finding of substantial harm to the child.
On August 12, 2002, Magistrate Judge Merz withdrew his report and
recommendations to dismiss the federal question action filed in
April 2001 pursuant to Plaintiff Michael Galluzzo's argument that
defeated the Rooker-Feldman doctrine. The Rooker-Feldman doctrine
is used in a majority of federal cases to dismiss underlying state
actions by asserting 'impermissible state appeals to the federal
court'.
The court had given the Attorney General 30 days to file her response
for intervention, for under the 11th Amendment a state has immunity
from federal suit unless the state voluntarily chooses to intervene,
at which time the state voluntarily waives its right to immunity
from suit. The State failed to respond voluntarily and where a constitutional
question was previously certified under federal law to the Attorney
General, the 11th Amendment
This is the first time that a federal court has issued a certified
question to rule on the merits of a presumption of equal custody
in a divorce situation. This is the only case that has ever happened
in a federal court that specifically addresses the federal rights
of divorcing parents, fitness, the evidentiary standard requi red
by federal law to prove unfitness {clear & convincing evidence-which
is already part of the juvenile code in Ohio, but not the domestic
code} and equal custody.
On April 27, 2001, a complaint was filed in U.S. District Court,
Dayton, Ohio against Champaign County Common Pleas Court. The suit
filed by Michael Galluzzo (C-3-01-174) claims the court deprived
him of his constitutional right to due process in a divorce action
that deprived him of custody of his children without a finding of
substantial harm to the children. In June of 1993, Mr. Galluzzo
was designated a non-custodial parent and ordered to pay child support
and his ex-wife was given full custody of the children.
It appears as though this case will move forward on the merits.
What are the "merits"? THAT IN A DIVORCE ACTION, A FIT PARENT
MAY NOT BE DENIED EQUAL LEGAL AND PHYSICAL CUSTODY OF A MINOR CHILD
WITHOUT A FINDING BY CLEAR AND CONVINCING EVIDENCE OF PARENTAL UNFITNESS
AND SUBSTANTIAL HARM TO THE CHILD. (See also Santosky v.
Kramer (1982).)
^top
Oregon
While not a court case, a bill introduced
in Oregon's 2001 legislative session recognizes the right of both
parents to raise their children. Complete bill is here:
http://www.leg.state.or.us/01reg/measures
/hb3500.dir/hb3559.intro.html
Significant wording from the bill:
"(6) To acknowledge that both parents have a fundamental right
to equal parenting time, parental oversight and direct care of their
children, and that such rights are a fundamental liberty interest
that governments may not intrude upon without first showing a compelling
interest, including the interest of prevention of harm to
children. "
Tennessee
Child's Best Interest has organized an attorney referral service
for lawyers who pledge to raise constitutional arguments on behalf
of their clients. These attorneys have agreed to the following:
- I understand parental rights derive from the 14th Amendment
to the United States Constitution's liberty and privacy guarantees,
as well as from similar provisions in state constitutions. And
that these rights may only be limited upon the following of due
process and equal protection provisions.
- I will raise constitutional protections on behalf of my clients
in the appropriate time and manner.
- I have reviewed the Constitutional
Arguments
See ChildsBestInterest.org
Factors that should be considered in a constitutional challenge::
http://childsbestinterest.org/
CBI_ConstitutionalArguments.doc
^top
Texas
"This is a lawsuit being litigated by James Loose, President of
the Center for Children's Justice Texas State Chapter, for permanent
injunction against the State of Texas to permanently enjoin the
enforcement of T.F.C. §§§153.002, 153.133(a)(1), 153.136, and the
provisions of the Texas Family Code that provide for substantially
different apportionments of times of child possession (the "Standard
Possession Order" [T.F.C., Subchapter F] §153.312, et seq.) on Fourteenth
Amendment Equal Protection and Due Process grounds."
Wisconsin
Case is already underway in the District I Court of Appeals,
decision expected summer 2002. Jan Raz v Mary A. Brown
Brief is below:
http://www.wisconsinfathers.org/prbrief.pdf
Contact:
Bryan Holland
Wisconsin Fathers for Children and Families
Vice President - Legislative Affairs
PO Box 1742
Madison, WI 53701
http://www.wisconsinfathers.org
608-ALL-DADS
^top
CASE LAW
GEORGIA
Sweat v. Sweat - see above
"In the interest of A.R.B., a child", Georgia Court of Appeals,
Case No. A93A0698, July 2, 1993.
Although the dispute is symbolized by a 'versus' which signifies
two adverse parties at opposite poles of a line, there is in fact
a third party whose interests and rights make of the line a triangle.
That person, the child who is not an official party to the lawsuit
but whose well-being is in the eye of the controversy, has a right
to shared parenting when both are equally suited to provide it.
Inherent in the express public policy is a recognition of the child's
right to equal access and opportunity with both parents, the right
to be guided and nurtured by both parents, the right to have major
decisions made by the application of both parents' wisdom, judgement
and experience. The child does not forfeit these rights when the
parents divorce.
"In the interest of A.R.B., a child", Georgia Court of Appeals,
Case No. A93A0698, July 2, 1993. Subsesquently heard by the Supreme
Court of Georgia, which upheld the Court of Appeals finding that,
according to public policy of Georgia, joint custody was in the
best interests of children when both parents are fit.]
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MARYLAND
Case 1353
Wolinski v. Browneller
REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 1353 September Term, 1996 [Word
Perfect] [PDF]
Case 1466
ROBERT G. BOSWELL v. KIMBERLY BOSWELL Davis
REPORTED IN THE COURT OF SPECIAL
APPEALS OF MARYLAND
No. 1466 September Term, 1996 [Word
Perfect] [PDF]
Findings:
I. The need for factual finding of actual harm in order for
parental visitation to be restricted.
II. The best interests standard does not ignore the interests of
the parents and their importance to the child. We recognize
that in almost all cases, it is in the best interest of the child
to have reasonable maximum opportunity to develop a close and loving
relationship with each parent.
III. A parent .........has a right of access to the child at reasonable
times. The right of visitation is an IMPORTANT, NATURAL, AND
LEGAL RIGHT, although it is not an absolute right, but is ONE WHICH
MUST YIELD TO THE GOOD OF THE CHILD.
IV. Any limitations placed on visitation must also be reasonable.
In examining the reasonableness of a visitation restriction, courts
will look to see if the child is endangered by spending time with
the parent:"VISITATION RIGHTS, HOWEVER, ARE NOT TO BE DENIED EVEN
TO AN ERRANT PARENT ................
V. A court is to consider the factors stated "supra" and then make
findings of fact in the record stating the particular reasons for
its decision
Notes:
1. Court rejected trial court's best interest finding and said that
trial court did not define any actual harm to the children from
overnight visits
2. Court noted previous decisions declaring recent trend to using
same criteria in visitation and custody claims.
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The Boswell case was appealed from the COSA, resulting in the following
decision by the COA:
Boswell v. Boswell
COURT OF APPEALS
September Term, 1998 [HTML]
[Word
Perfect] [PDF]
This is a VERY IMPORTANT case, becase it considers what should
be considered in determining "reasonable" visitation. The
court makes the following statement:
"Ms. Boswell claims the "best interests of the child" standard
should apply and that the Court of Special Appeals erred in applying
an "actual harm" standard. Mr. Boswell contends that the
Court of Special Appeals did apply the best interests of the child
standard, correctly coupling this standard with the need for an
evidentiary showing of actual harm in order for parental visitation
to be restricted. In affirming the Court of Special Appeals'
judgment, we want to clarify that the Court of Special Appeals'
judgment should not be interpreted as articulating an "actual
harm" standard that is separate and distinct from the best interests
of the child standard. We seek to clarify that only one
standard is used in determining whether to restrict parental visitation
in the presence of non-marital partners, bests interests of the
child, but we also want to emphasize that when a court is engaging
in a best interests analysis, reasonable maximum exposure to each
parent is presumed to be in the best interests of the child."
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VIRGINIA
Supreme Court of Virginia
THOMAS O. WILLIAMS, III, ET AL. v. THOMAS O. WILLIAMS,
IV, ET AL.
Record No. 971616 June 5, 1998
OPINION BY JUSTICE A. CHRISTIAN COMPTON
Full
text of opinion
Excerpt: "In other words, the Court of Appeals said, "For
the constitutional requirement to be satisfied, before visitation
can be ordered over the objection of the child's parents, a court
must find an actual harm to the child's health or welfare without
such visitation." Id. at 784-85, 485 S.E.2d at 654. A court reaches
consideration of the "best interests" standard in determining visitation
only after it finds harm if visitation is not ordered. Id. at 785,
485 S.E.2d at 654. The Court of Appeals held that the circuit
court failed to make the required finding of harm if visitation
were denied, reversed the circuit court, and remanded the case for
reconsideration of visitation in accord with the standard it set
forth. Id. We agree with the Court of Appeals' discussion holding
there is no constitutional infirmity in the applicable statutes
and with that court's interpretation, as we have summarized it,
placed upon the statutes. "
Comment This finding is consistent with Robinson's
argument that the best interest standard should be tested through
a requirement of finding actual harm, i.e., the best interest is
satisfied by finding the least detrimental alternative.
Beck v. Beck (New Jersey) - copy of this case needed
Stanley
v. Illinois
M.
L. B., PETITIONER v. S. L. J.
"Choices about marriage, family life, and the upbringing of children
are among associational rights this Court has ranked as "of basic
importance in our society," Boddie, 401 U. S., at 376, rights sheltered
by the Fourteenth Amendment against the State's unwarranted usurpation,
disregard, or disrespect. See, for example, Turner v. Safley, 482
U.S. 78 (1987), Zablocki v. Redhail, 434 U.S. 374 (1978), and Loving
v. Virginia, 388 U.S. 1 (1967) (marriage); Skinner v. Oklahoma ex
rel. Williamson, 316 U.S. 535 (1942) (procreation); Pierce v. Society
of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S.
390 (1923) (raising children). M. L. B.'s case, involving the State's
authority to sever permanently a parent child bond, [n.8] demands
the close consideration the Court has long required when a family
association so undeniably important is at stake. We approach M.
L. B.'s petition mindful of the gravity of the sanction imposed
on her and in light of two prior decisions most immediately in point:
Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S.
18 (1981), and Santosky v. Kramer, 455 U.S. 745 (1982). "
SANTOSKY
ET AL. v. KRAMER, COMMISSIONER, ULSTER COUNTY
DEPARTMENT OF SOCIAL SERVICES, ET AL.
No. 80-5889.
SUPREME COURT OF THE UNITED STATES
455 U.S. 745; 71 L. Ed. 2d 599; 50 U.S.L.W. 4333; 102 S.
Ct. 1388 Argued November 10, 1981 March 24, 1982
MICHIGAN
Travis Ballard, NCFC, brief:
Michigan
case - see Section B
NEW YORK
New
York case, www.kids-right.org
"We the People"
organization - Class Action Lawsuit
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