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.
Back to Contents
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
appropriate standard of
review. I would apply strict
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 responsibilities
that it undertakes, which
must be reconciled with many
other responsibilities.
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.
Back to Contents
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."
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."
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."
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. "
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."
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.
Back to Contents
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."
CALIFORNIA LAW REVISION
COMMISSION STAFF MEMORANDUM
Admin.
August 28, 2001 Memorandum
2001-60
Back to Contents
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. "
http://www.childrensjustice.org/co_civrts.html
Muchnick v. Colorado
Stillman v. Colorado
Back to Contents
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
Back to Contents
Michigan
"Proposed amendment to the
State of Michigan
constitution promoting
thebest interests of the
child to have equal access
to both parents."
Equal Child Parenting
Amendment
Back to Contents
New York -
Press Release - New York
State Custody Laws
Challenged in Federal Court;
Local Family Court Judge
Named as Defendant
May 12th, 2003May
12th, 2003On 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
Back to Contents
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).)
Merit Brief (pdf)
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. "
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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
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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."
Loose v. Texas
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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
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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, judgment 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. Subsequently
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.
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."
Back to Contents
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.
Back to Contents
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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