The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (first) and Amendments 5, 9, and 14. Doe v. Irwin 441 F Supp 1247; U.S. D.C. of Michigan, (1985)
Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982)
Parent’s right to custody of child is a right encompassed within protection of this amendment (first) which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Reynold v. Baby Fold, Inc,, 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, US 963, Il, (1977)
Parent’s interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper,621 P 2d 437; 5 Kansas App Div 2d 584, (1980).
The U.S. Supreme Court implied that “a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255-56, (1978).
A parent’s right to the preservation of this relationship with his child derives from the fact that the parent’s achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child’s corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595-599; US Ct App (1983).
Law and Court procedures that are “fair on their faces” but administered “with an evil eye or a heavy hand” was discriminatory and violates the equal protection clause of the fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).
The law protects the natural parent’s relationship with his or her child and will not interfere unnecessarily with that relationship, even at the cost of estrangement to the extended family. Freedom of personal choice in matters of family life, and concomitant freedom from unwarranted governmental intrusions, is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Weber v. Weber, 362 Pa. Super. 262, 524 A.2d 498 (1987).
We have noted that “grandparents *** do not step into their *** children’s shoes in regard to visitation” under the Marriage Act (750 ILCS 5/101 et seq. (West 1992)). Weybright, 262 Ill. App. 3d at 608, 635 N.E.2d at 121. Grandparents’ rights do not equate with those of parents, because parents have responsibilities toward their children that do not burden grandparents. Weybright, 262 Ill. App. 3d at 608, 635 N.E.2d at 121-22.
For the sake of children, society should encourage parents who are experiencing difficulties raising them to take advantage of an available “safety net,” such as a grandparent who is willing to accept temporary custody of a child. It would discourage such action by parents in difficult straits and discourage efforts to “reform” or better their life situation if their chances of later reuniting with their children were reduced. IN RE OF L.L., 745 N.E.2d 222 (Ind. App. 2001)
By allowing the state to override the decisions of parents regarding the upbringing of their children… significantly interferes with the fundamental rights of parents. Lulay v. Lulay, 193 Ill.2d 455, 739 N.E.2d 521 (2000).
” (grandparent) (visitation) cannot threaten the stability of the parent-child relationship in any way.” Id. at 198. Wilde v Wilde, NJ. The United States Supreme Court emphasized the point that the litigation itself is a burden on the parent’s substantive due process rights. A grandparent cannot demean a parent in the manner that took place here and then insist the parent engage in psychological therapy because without it visitation would be inconsistent with the child’s best interest.
[T]he child’s interest in a continuation of the family unit exists only to the extent that such a continuation would not be harmful to him. (Kramer,above, at 790, Rehnquist, C.J.)
Rideout, 18, 761 A.2d at 299. A grandparent possesses no constitutional right to access the child. Id. Page 629
The plurality [in Troxel] not[ed] that “[o]nce the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference.” Id. at 2061 (emphasis added).
The Troxel opinion does…provide us with clear guidance on important points. First, The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court. Id. at 2060. The fundamental right of parents to direct the care and up bringing of their children does not disappear in the face of a third party’s request for visitation with the children. Second, the best interests of the child standard, standing alone, is an insufficient standard for determining when the State may intervene in the decision making of competent parents. Id. at 2061. And finally, because of the “presumption that fit parents act in the best interests of their children,” trial courts must accord special weight to parents’ decisions and objections regarding requests for third-party visitation. Id. At 2061-62. [fn8]
the Grandparents Visitation Act provides a mechanism by which the State may intervene in the basic exercise of parents’ rights to determine the care and custody of their children. The Act allows the courts to determine whether parents will be required to turn their children over to the grandparents against the parents’ wishes. The power of the court to adjudicate such disputes and to enforce its own orders constitutes state involvement in a way that clearly implicates parents’ fundamental liberty interests in the care and custody of their children.[fn13] RIDEOUT v. RIENDEAU, 2000 ME 198, 761 A.2d 291
The best interests of the child standard has at times been criticized as indeterminate, leading to unpredictable results. As one judge has observed: What is best for children depends upon values and norms upon which reasonable people differ. Broad room for debate means a broad and unpredictable array of possible outcomes in any custody contest. That fact encourages prolonged and expensive litigation and “strategic behaviors” of the parents, neither of which usually benefits children. Honorable John C. Sheldon, Anticipating the American Law Institute’s Principles of the Law of Family Dissolution, 14 Me. B.J. 18, 25 (1999) (citations omitted).
the concept that the State may not intervene in family life merely on the basis of a best interest determination is so well established that we have explicitly directed trial courts not to reach the best interest prong in termination of parental rights cases until the State has made a showing of parental unfitness based on one of four statutory bases for termination.See In re Ashley A., 679 A.2d 86, 89 (Me. 1996). Unless the court has found the presence of one of those “harm” factors, it may not even consider the best interests of the child. See In re Leona T., 609 A.2d 1157, 1158 (Me. 1992); see also Smith v. Org. of Foster Families, 431 U.S. 816, 862-63 (1977) (Stewart, J., concurring) (“If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on `the private realm of family life which the state cannot enter.'” (citation omitted).