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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

July 12, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The article in the Nebraska Lawyer magazine entitled “Yes, Virginia, the Constitution Applies in Family Court, Too” is a stunning indictment, not just of the “best interests” standard, but of family court orders generally.

It attacks those orders on three different constitutional fronts – substantive due process, procedural due process and equal protection.

In the 2000 case of Troxel v. Granville, the U.S. Supreme Court summarized prior case law on parental rights.

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”

Parental rights have long been understood by the Court to be one of those fundamental liberty interests. Indeed, the interest a parent has in the care and companionship of his/her children is perhaps the oldest and most fundamental of all liberty interests. It is therefore all the more remarkable the short shrift those rights are routinely given by judges ruling in family matters.

Eight years after Troxel, the Nebraska Supreme Court effectively expanded the liberty interest enjoyed by parents to children as well.

[B]oth parents and their children have a recognized unique and legal interest in, and a constitutionally protected right to, companionship. In other words, the substantive due process right to family integrity protects not only the parent's right to the companionship, care, custody, and management of his or her child, but also protects the child's reciprocal right to be raised and nurtured by [his or her] biological parent. It is clear, therefore, that both parents and their children have cognizable substantive due process rights to the parent-child relationship.

At least two states – Nebraska and Virginia – have specifically included unmarried fathers within the protection of that liberty interests as long as they’ve established a meaningful relationship with their kids. Parenthetically, I would point out that the requirement that the father have established such a relationship before his substantive due process rights as a parent come into being effectively places the exercise of those rights under the control of the mother of his child. If she permits him to establish such a relationship, his rights come into being; if she doesn’t, they don’t.

What does all this mean? It means that any state action that seeks to infringe or diminish those fundamental rights need to meet the highest burden ever established in order to pass constitutional muster.

This means it survives Constitutional scrutiny only if it is narrowly tailored to serve a compelling state interest and uses the least restrictive means available to do so.

Ask yourself how many parenting time orders are “narrowly tailored” and use the “least restrictive means” available in order to serve what is undeniably a compelling state interest, i.e. the child’s best interests. That’s right, very few. And I’m not the only one who thinks so. The article’s three authors, attorneys David Domina, James Bocott and Jeremy Hopkins conclude that,

Under strict scrutiny analysis, appellate standards that give trial judges independent responsibility to determine custody and parenting time, even over the joint agreement of the child’s parents, do not pass constitutional muster.

More on this tomorrow.

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