Comments By PAST CPS


The Constitutional Rights of Parents:
Nearly A Century of Consistency in the U.S. Supreme Court

There are few issues on which the
U.S. Supreme Court has spoken so eloquently–
and so consistently–as that of
parental rights. In 1923 the Court asserted
that the “liberty” protected by the
Due Process Clause includes the right of
parents to “establish a home and bring
up children” and “to control the education
of their own.” Meyer v. Nebraska,
262 U.S. 390, 399, 401 (1923). On June
5, 2000, the Court declared that
[I]t cannot now be doubted that the
Due Process Clause of the Fourteenth
Amendment protects the fundamental
right of parents to make
decisions concerning the care, custody,
and control of their children.
Troxel v. Granville (530 U.S. 2000)
Fundamental Constitutional rights
are accorded a special status in judicial
review. The Fourteenth Amendment
prohibits the state from depriving any
person of “life, liberty, or property,
without due process of law.” The Court
has long recognized that the Due Process
Clause “guarantees more than fair
process.” Washington v. Glucksberg,
521 U.S. 702, 719 (1997). It also includes
a substantive component that
“provides heightened protection against
government interference with certain
fundamental rights and liberty interests.”
Id., at 720; see also Reno v.
Flores, 507 U.S. 292, 301–302 (1993).
The level of scrutiny required for
state actions that infringe upon fundamental
rights is “strict scrutiny”, which
requires the state to show that the
infringement serves a “compelling state
interest” and that there is no Constitutionally
less offensive way for the state
to satisfy this compelling interest.
There are sweeping–though seldom
appreciated–implications of recognizing
parental rights as Constitutionally fundamental.
Domestic relations courts
routinely declare one parent a “noncustodial
parent” and, thereby, deprive
him or her of “the fundamental right of
parents to make decisions concerning the
care, custody, and control” of their
children. This practice has “a real and
appreciable impact on, and constitutes a
significant interference with,” the exercise
of a fundamental Constitutional right.
Therefore, “it cannot now be doubted
that” such a determination interferes with
a fundamental constitutional right.
As a result, the practice must receive
the strict scrutiny guaranteed by the Due
Process Clause of the Fourteenth
Amendment. This is true regardless of
whether the interference with the right is
permanent or temporary, pendente lite.
The Court has held that the deprivation of
fundamental liberty rights “for even
minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v.
Burns, 96 S.Ct. 2673; 427 U.S. 347,
Under the strict scrutiny standard,
such a deprivation of rights must occur
only when there is a compelling state
interest served by interfering with these
rights and there is no more Constitutionally
benign way to achieve this
compelling state interest.
While it is uncontroversial that, under
the parens patria doctrine, the state has a
compelling interest in preventing harm to
children, this interest is not sufficient to
Constitutionally justify the infringement
in question. The state must show that
there is no method of achieving this state
objective that is less offensive to the
Constitution than that of routinely depriving
one parent of these fundamental
rights. Where there is clear and convincing
evidence that, in the specific case,
the retention of parental rights by both
parents would compromise a compelling
state interest, the state may be justified in
restricting the parental rights of one, or
both, parents. However, where both
parents are fit, there will normally be no
reason for a state to deprive one of custodial
As the Court declared in Troxel:
[S]o long as a parent adequately cares
for his or her children (i.e., is fit), there
will normally be no reason for the State
to inject itself into the private realm of
the family to further question the ability
of that parent to make the best
decisions concerning the rearing of that
parent’s children.
Troxel, op. cit.
The implication of this is that, to be
Constitutionally sound, state law must
contain a strong legal presumption of
joint legal custody of minor children
upon the divorce of the parents.

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