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November 14, 2013 by Don Hubin, PhD, Chair, Executive Committee, National Parents Organization of Ohio

Under the U.S. Constitution, parental rights are fundamental rights. This is settled law; it is not open to debate. A century of federal court decisions, including numerous decisions of the U.S. Supreme Court, have spoken unequivocally on this.  My earlier article for National Parents Organization appeared in a recent newsletter: Joint Custody is Your Constitutional Right.

The designation “fundamental constitutional right” is not mere flowery rhetoric — at least it’s not supposed to be. It has a concrete meaning and significant legal implications. Infringements on such rights are subject to “strict scrutiny.” The state may interfere with fundamental rights only if there is a “compelling state interest” that cannot be achieved without such interference, and the state bears the burden of showing that this is so. The very point of having a category of fundamental rights is to make it difficult for the government to interfere in people’s lives inappropriately.

But those who have had their parental rights restricted by family law courts with not even a semblance of due process know that, while our courts may “talk the talk,” they do not “walk the walk.” The following is standard operating procedure in most family law courts across the country: when a divorce action is initiated, the court will routinely designate one parent noncustodial — that is, deprive them of custodial rights — based only on unchallenged affidavits or a cursory hearing. Where was the specific showing of a compelling state interest? Where was the demonstration by the state that this interest could not be achieved without infringing on parental rights?

To those parents who have had their parental rights infringed on in this cavalier manner, the century of legal rhetoric declaring parental rights to be “fundamental constitutional rights” certainly sounds like empty rhetoric.

How do supporters of current legal practices defend our family law courts? One common strategy has been to argue that there is a very big difference between cases in which the state is taking custody of a child and cases in which the state is merely deciding which, of two custodial parents, may retain custody. While the state must meet a high standard to remove a child from parental custody into state custody, these people argue, no such requirement arises when the state is merely assigning full custody to one parent.

This has always seemed to be a ruse — a sham. If you are deprived of your parental rights, what difference does it make to that deprivation that the other parent is not deprived of rights? Of course, it can make a difference to how you view the impact of the deprivation. If the other parent is a fit and loving parent, you will be assured that your child will be in a better situation than most children who are wards of the state. But this in no way diminishes the infringement on your rights.

Earlier this year, Third Circuit United States Court of Appeals agreed!

In a decision partly overturning a district court ruling, the appellate court, which includes Delaware, New Jersey, Pennsylvania, and the Virgin Islands, said:

The deprivation of a parent’s custodial relationship with a child is among the most drastic actions that a state can take against an individual’s liberty interest, with profound ramifications for the integrity of the family unit and for each member of it. From the parent’s perspective, there may be little meaningful difference between instances in which the state removes a child and takes her into state custody and those in which the state shifts custody from one parent to another, as occurred here. In either case, the government has implicated a fundamental liberty interest of the parent who loses custody. The state has caused a deprivation and risks having done so wrongly. (B.S. v. Somerset County, 704 F.3d 250 (2013), emphasis added.)

The first sentence merely repeats familiar rhetoric about the importance of parental rights and the serious nature of state interference with them. This is well worth saying, of course, but it’s nothing new. The decision goes on, though, to make crystal clear that states may no longer rely on the deceptive dodge many have. They may no longer treat it as if the state is not implicated in the curtailment of parental rights when the state declares one parent to be non-custodial provided the state leaves the child in the custody of the other parent.

The Third Circuit Court got it right. Now, you might think that this should be no big accomplishment: the conclusion the Court came to was just common sense. But, as Will Rogers said, “Common sense ain’t so common.” And nowhere is that more true than in some of our courts of law. It’s good to see common sense prevail in this decision.

National Parents Organization is grateful to attorney Paul Clark for bringing this decision to our attention and asking our members to participate in the suit. In connection with a case he is working on, Mr. Clark is looking for National Parents Organization members, with divorce cases in New Jersey, who have been deprived of parental rights without a full (plenary) hearing. If you believe you fall into this category, please see National Parents Organization Action Call here.

National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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