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Interest paper

Points out:

Parental Rights: 'Custody' is a misleading term, for it suggests a unitary thing when, in fact, it refers to a set of rights and responsibilities. In this respect, it is like 'property'. 11 [A. M. Honore, "Ownership] Both are convenient labels for a cluster of rights that have traditionally been bundled together by social practice and in our thought. There is a great danger of committing "false dichotomy fallacies" when we employ such labels without sufficient care. With respect to property, for example, we often think that, absent some special arrangements, a person must either own an item in the strong sense that we own personal property, or the item must be one over which the person has no property rights. This is, of course, mistaken, but it is an understandable mistake given our tendency to think of owning property as an all-or-nothing situation. We must be wary of these conventional categories- especially when our task is to challenge the conventions themselves. We must ask ourselves whether the items in the set of rights in question are inseparable, whether the justification for each item is the same, and so forth. For the most part, I shall talk about parental rights, instead of custody, to emphasize this.

I know of no exhaustive listing of the set of parental rights we typically associate with having full custody of children. The following rights, only some of which are relevant to our present concern, are commonly assumed to be included in the set:

- the right to physical possession of the child;
- the right to inculcate in the child one's moral and ethical standards, including the right to discipline the child;
- the right to control and manage a minor child's earnings and property;
- the right to have the child bear the parent's name;
- the right to prevent adoption of the child without the parents' consent; 12
- the right to make decisions concerning the medical treatment, education, religious training and other activities of the minor child; and,

- the right to information necessary to exercise the above rights responsibly


Bruce Hafen is perhaps more explicit:

The common law has long recognized parental rights as a key concept, not only for the specific purposes of domestic relations law, but as a fundamental cultural assumption about the family as a basic social, economic, and political unit. For this reason, both English and American judges view the origins of parental rights as being even more fundamental than property rights. Parental rights to custody and control of minor children have been variously described as 'sacred' as a matter of 'natural law', and as 'inherent, natural right[ s], for the protection of which, just as much as for the protection of the rights of the individual to life, liberty, and the pursuit of happiness, our government is formed. ' These judicial word choices imply that the parent-child relationship antedates the state in much the same sense as natural individual rights are thought to antedate the state in American political philosophy."


The argument against this practice is remarkably simple. Parental rights are fundamental, constitutionally guaranteed rights. 36 The procedures for the determination of temporary custody in divorce proceedings typically result in the direct and substantial deprivation of such rights without any demonstration of the existence of a state interest in such deprivation. As I shall indicate shortly, the deprivation of rights in question imposes an undue burden on those whose rights are infringed. These procedures, then, deprive citizens of fundamental rights without due process of law. They are, therefore, unconstitutional deprivations of basic human rights.