July 16, 2013
By Don Hubin, Chair, Executive Committee, National Parents Organization of Ohio
Imagine a right that for nearly a century U.S. courts (including the Supreme Court) have recognized as a constitutionally-protected “fundamental right” which “cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”1 Such a right “undeniably warrants deference, and, absent a powerful countervailing interest, protection”.2
Surely such a right would be zealously protected by the courts. And if it were not, we should be outraged.
There is such a right. It receives little protection by our courts. And we should, indeed, be outraged!
Reading the language our courts invoke when discussing parental rights, one would expect those rights to receive vigilant protection from the courts. But, in fact, family law courts across the nation routinely infringe on parental rights with not even a semblance of due process required when restricting fundamental constitutional rights.
This is most clear in the case of the temporary orders courts impose during the pendency of divorce litigation. In nearly all such cases, two parents walk into the courtroom with full parental rights — with full custody of their children. On the basis of unchallenged affidavits or the most cursory of hearings — often lasting only a few minutes — one of those parents walks out of the courtroom without custody — with his or her parental rights severely restricted. That parent, over 85% of the time the father, has lost the legal authority to make decisions for the children — even to sign school permission forms — without due process. This deprivation of rights lasts through the divorce process and typically becomes part of the permanent court orders.
The Supreme Court has declared that parental rights are “fundamental.” What this means — or, rather, what it is supposed to mean — is that the state may not interfere with them unless there is a “compelling state interest” that cannot be achieved otherwise. And, if it is determined that there is such a compelling state interest that requires interference with a fundamental right, the state must choose the least constitutionally offensive way of achieving its purpose.
Now, of course, the state does have a compelling interest in protecting children from harm. This is the basis on which the state removes children from abusive parents. It is also true that some children of divorcing parents might be harmed as a result of both parents retaining custody. But the state is not allowed, on those grounds, to routinely restrict an individual’s fundamental rights. A legal presumption infringing on fundamental rights may not be made simply because it is administratively more efficient and less costly than making an individual determination3 and the state may not adopt a statutory scheme that deprives individuals of rights “without reference to the very factor that the State itself deem[s] fundamental to its statutory scheme.”4
Setting aside the legal jargon, what this means is that if our courts were to “walk the walk” instead of merely “talking the talk” about parental rights, when our two parents enter court to initiate a divorce proceeding, there would be a strong presumption that they would both leave that court with legal custody of the children. What the courts need to decide in most cases is a schedule of physical custody to enforce during the divorce proceedings and how to arrange finances during this period. Courts should deprive one parent of custody during the divorce process only in very exceptional cases, where there is clear and convincing evidence that it is necessary, in this particular case, to prevent harm to the children.
This constitutional argument for a presumption of joint legal custody is not new. When I was doing research for my 1999 paper “Parental Rights and Due Process,” I found several scholarly papers that develop this line of reasoning. Since the publication of my paper, others have taken up this argument, too. I list some of the scholarly articles that develop this argument below for those who want to read more, providing links to articles that are freely available online.
A note of caution, though: While I believe wholeheartedly in the constitutional argument for a presumption of joint legal custody, I do not recommend that divorcing parents rest their case on these legal arguments. For most family law judges and attorneys, constitutional law was just a course they had to take in law school. They are extremely reluctant to accept the fact that there are any significant constitutional restrictions on their discretion. That the constitutional argument is a sound legal argument doesn’t mean that reliance on it is a sound legal strategy in real-life cases.
Scholarly articles on the constitutional argument for a presumption of joint legal custody:
- Robinson, Holly L. (1985). Joint Custody: Constitutional Imperatives. 54 Cincinnati Law Review, 27-65.
- Canacakos, Ellen. (1981). Joint Custody as a Fundamental Right. 23 Arizona Law Review, 785-800.
- McNeely, Cynthia A. (1998). Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court, 25 Florida State University Law Review, 891-965.
- Hubin, Donald C. (1999). Parental Rights and Due Process. 1 The Journal of Law and Family Studies, 123-150.
- Bozzomo, James W. (2002). Joint Legal Custody: A Parent’s Constitutional Right in a Reorganized Family. 31 Hofstra Law Review, 547-585.
- Meyer, David. (2006). The Constitutional Rights of Non-Custodial Parents. 34 Hofstra Law Review, 1461-1496.
- Firing, Matthew. (2007). In Whose Best Interest? Courts Failure to Apply State Custodial Laws Equally Amongst Spouses and Its Constitutional Implications. 20 Quinnipiac Probate Law Journal, 224-259.
- Lapsatis, Nicole. (2012). In the Best Interests of No One: How New York’s “Best Interests of the Child” Law Violates Parents’ Fundamental Right to the Care, Custody, and Control of Their Children. 86 St John’s Law Review, 673-714.