Parental Rights Amendment Reaches 110 Co-Sponsors

New CoSponsors in the House – and Senate!

This morning, in conjunction with Representative Hoekstra’s office, we proudly sent out the following press release:

Parental Rights Amendment Reaches 110 Co-Sponsors

Grassroots Movement behind Effort to Ensure Parents’ Rights to Raise their Children

FOR IMMEDIATE RELEASE / July 27, 2009 / Washington, D.C. – A Constitutional Amendment to protect the parent-child relationship introduced by U.S. Rep. Pete Hoekstra, R-Michigan, has reached 110 co-sponsors in the House.

“More and more members of Congress are recognizing the threat from government and foreign interference into the parent-child relationship,” Hoekstra said. “I encourage my colleagues to support the initiative by co-sponsoring the Parents’ Rights Amendment.”

The Parental Rights Amendment (H.J.Res.42) would state explicitly in the U.S. Constitution that parents have a fundamental right to raise their children as they see fit, while protecting against abuse and neglect. Threats to the parent-child relationship include potential Senate ratification of the U.N. Convention on the Rights of the Child and the erosion of fundamental parental rights in our federal courts.

“Just about every member of Congress agrees with the legal principle that parents have the fundamental right to make decisions for the upbringing of their children,” said Michael Farris, J.D., president of Parentalrights.org. “Because of international law and shifting judicial philosophies, the right is being steadily undermined. We now have 110 members of Congress with the foresight to say that we need to protect this long-standing right before the erosion goes too far. We appreciate the leadership of Pete Hoekstra and the 109 other members of Congress who believe that it is important to secure the rights of American families for generations to come.”

More information on the Parental Rights Amendment can be viewed at http://www.parentalrights.org.

More Good News

In addition, we also received word that Senator Coburn of Oklahoma has signed on as a cosponsor of S.J. Res. 16, the Parental Rights Amendment in the Senate. This brings our total in the Senate to three (3) – a slow but important start.

While there is no way to track the direct effects of your calls and emails and our visits last week, it is safe to assume that at least some of these cosponsors would not have signed on before the summer break without this contact. When we visited Congress last week, everyone we spoke to was already aware of the Amendment – a major change from just four months ago! Our thanks and congratulations to you for your efforts to bring this vital issue to the attention of your Senators and Congressmen. With help like yours, we will win!

Decisions of the United States Supreme Court Upholding Parental Rights as “Fundamental”

by Christopher J. Klicka, Esq.

The Supreme Court of the United States has traditionally and continuously upheld the principle that parents have the fundamental right to direct the education and upbringing of their children. A review of cases taking up the issue shows that the Supreme Court has unwaveringly given parental rights the highest respect and protection possible. What follows are some of the examples of the Court’s past protection of parental rights.

In Meyer v. Nebraska,¹ the Court invalidated a state law which prohibited foreign language instruction for school children because the law did not “promote” education but rather “arbitrarily and unreasonably” interfered with “the natural duty of the parent to give his children education suitable to their station in life…” ² The court chastened the legislature for attempting “materially to interfere… with the power of parents to control the education of their own.” ³ This decision clearly affirmed that the Constitution protects the preferences of the parent in education over those of the State. In the same decision, the Supreme Court also recognized that the right of the parents to delegate their authority to a teacher in order to instruct their children was protected within the liberty of the Fourteenth Amendment. ⁴

Furthermore, the Court emphasized, “The Fourteenth Amendment guarantees the right of the individual … to establish a home and bring up children, to worship God according to his own conscience.”⁵

In 1925, the Supreme Court decided the Pierce v. Society of Sisters⁶ case, thereby supporting Meyer’s recognition of the parents’ right to direct the religious upbringing of their children and to control the process of their education. In Pierce, the Supreme Court struck down an Oregon compulsory education law which, in effect, required attendance of all children between ages eight and sixteen at public schools. The Court declared,

Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.⁷ [emphasis supplied]

In addition to upholding the right of parents to direct the upbringing and the education of their children, Pierce also asserts the parents’ fundamental right to keep their children free from government standardization.

The fundamental theory of liberty upon which all governments in this Union repose excluded any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right and the high duty, to recognize and prepare him for additional obligations.⁸ [emphasis supplied]

The Supreme Court uses strong language in asserting that children are not “the mere creature of the State.” The holding in Pierce, therefore, preserves diversity of process of education by forbidding the State to standardize the education of children through forcing them to only accept instruction from public schools.

In Farrington v. Tokushige, the Court again upheld parental liberty by striking down legislation which the Court admitted would have destroyed most, if not all private schools. ⁹ The Court noted that the parent has the right to direct the education of his own child without unreasonable restrictions.¹⁰ In support of this assertion the Court explained,

The capacity to impart instruction to others is given by the Almighty for beneficent purposes and its use may not be forbidden or interfered with by government — certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety. ¹¹

The parents’ right to instruct their children clearly takes precedence over the state’s regulatory interest unless the public safety is endangered.

Similarly, in Prince v. Massachusetts,¹² the Supreme Court admitted the high responsibility and right of parents to control the upbringing of their children against that of the State.

It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the State can neither supply nor hinder.¹³ [emphasis supplied]

Twenty-one years later, the Supreme Court, in Griswold v. Connecticut, emphasized that the state cannot interfere with the right of a parent to control his child’s education. ¹⁴ The Court stated that the right to educate one’s child as one chooses is guaranteed in the Bill of Rights and applicable to the States by the First and Fourteenth Amendments.¹⁵

Forty-eight years after Pierce, the U.S. Supreme Court once again upheld Pierce as “the charter of the rights of parents to direct the upbringing of their children.” ¹⁶ In agreement with Pierce, Chief Justice Burger stated in the opinion of Wisconsin v. Yoder in 1972:

This case involves the fundamental interest of parents, as contrasted with that of the state, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring tradition. ¹⁷ [emphasis supplied]

This case involved a family of the Amish religion who wanted to be exempt after eighth grade from the public schools to be instructed at home. In its opinion the U.S. Supreme Court further emphasized that:

Thus a state’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children . . . This case involves the fundamental and religious future and education of their children. ¹⁸ [emphasis supplied]

Consequently, it is clear the constitutional right of a parent to direct the upbringing and education of his child is firmly entrenched in the U.S. Supreme Court case history. Furthermore, a higher standard of review applies to fundamental rights such as parental liberty than to other rights. When confronted with a conflict between parents’ rights and state regulation, the court must apply the “compelling interest test.” Under this test, the state must prove that its infringement on the parents’ liberty is essential to fulfill a compelling interest and is the least restrictive means of fulfilling this state interest. Simply proving the regulation is reasonable is not sufficient.

Below are excerpts from over a dozen United States Supreme Court cases where, primarily in dicta, the Court has declared parental rights to be fundamental rights which require a higher standard of review (i.e. the “compelling interest test”).

1. Paris Adult Theater v. Slaton, 413 US 49, 65 (1973)

In this case, the Court includes the right of parents to rear children among rights “deemed fundamental.”

Our prior decisions recognizing a right to privacy guaranteed by the 14th Amendment included only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty . . . This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing . . . cf . . . Pierce v. Society of Sisters; Meyer v. Nebraska . . . nothing, however, in this Court’s decisions intimates that there is any fundamental privacy right implicit in the concept of ordered liberty to watch obscene movies and places of public accommodation. [emphasis supplied]

2. Carey v. Population Services International, 431 US 678, 684-686 (1977)

Once again, the Court includes the right of parents in the area of “child rearing and education” to be a liberty interest protected by the Fourteenth Amendment, requiring an application of the “compelling interest test.”

Although the Constitution does not explicitly mention any right of privacy, the Court has recognized that one aspect of the liberty protected by the Due Process Clause of the 14th Amendment is a “right of personal privacy or a guarantee of certain areas or zones of privacy . . . This right of personal privacy includes the interest and independence in making certain kinds of important decisions . . . While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage . . . family relationships, Prince v. Massachusetts, 321 US 158 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 US 510 (1925); Meyer v. Nebraska, 262 US 390 (1923).’ [emphasis supplied]

The Court continued by explaining that these rights are not absolute and,

certain state interests . . . may at some point become sufficiently compelling to sustain regulation of the factors that govern the abortion decision . . . Compelling is, of course, the key word; where decisions as fundamental as whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by a compelling state interest, and must be narrowly drawn to express only those interests. [emphasis supplied]

3. Maher v. Roe, 432 US 464, 476-479 (1977)

We conclude that the Connecticut regulation does not impinge on the fundamental right recognized in Roe …
There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy …

This distinction is implicit in two cases cited in Roe in support of the pregnant woman’s right under the 14th Amendment. In Meyer v. Nebraska. . . the Court held that the teacher’s right thus to teach and the right of parents to engage in so to instruct their children were within the liberty of the 14th Amendment . . . In Pierce v. Society of Sisters . . . the Court relied on Meyer . . . reasoning that the 14th Amendment’s concept of liberty excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The Court held that the law unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of the children under their control …

Both cases invalidated substantial restrictions of constitutionally protected liberty interests: in Meyer, the parent’s right to have his child taught a particular foreign language; in Pierce, the parent’s right to choose private rather than public school education. But neither case denied to a state the policy choice of encouraging the preferred course of action … Pierce casts no shadow over a state’s power to favor public education by funding it — a policy choice pursued in some States for more than a century … Indeed in Norwood v. Harrison, 413 US 455, 462, (1973), we explicitly rejected the argument that Pierce established a “right of private or parochial schools to share with the public schools in state largesse,” noting that “It is one thing to say that a state may not prohibit the maintenance of private schools and quite another to say that such schools must as a matter of equal protection receive state aid” … We think it abundantly clear that a state is not required to show a compelling interest for its policy choice to favor a normal childbirth anymore than a state must so justify its election to fund public, but not private education. [emphasis supplied]

Although the Maher decision unquestionably recognizes parents’ rights as fundamental rights, the Court has clearly indicated that private schools do not have a fundamental right to state aid, nor must a state satisfy the compelling interest test if it chooses not to give private schools state aid. The Parental Rights and Responsibilities Act simply reaffirms the right of parents to choose private education as fundamental, but it does not make the right to receive public funds a fundamental right. The PRRA, therefore, does not in any way promote or strengthen the concept of educational vouchers.

4. Parham v. J.R., 442 US 584, 602-606 (1979).

This case involves parent’s rights to make medical decisions regarding their children’s mental health. The lower Court had ruled that Georgia’s statutory scheme of allowing children to be subject to treatment in the state’s mental health facilities violated the Constitution because it did not adequately protect children’s due process rights. The Supreme Court reversed this decision upholding the legal presumption that parents act in their children’s best interest. The Court ruled:

Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is “the mere creature of the State” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.” Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) … [other citations omitted] . . . The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has been recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries 447; 2 J. Kent, Commentaries on American Law 190.
As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents “may at times be acting against the interests of their children” … creates a basis for caution, but it is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child’s best interest … The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” [emphasis supplied]

Parental rights are clearly upheld in this decision recognizing the rights of parents to make health decisions for their children. The Court continues by explaining the balancing that must take place:

Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized (See Wisconsin v. Yoder; Prince v. Massachusetts). Moreover, the Court recently declared unconstitutional a state statute that granted parents an absolute veto over a minor child’s decisions to have an abortion, Planned Parenthood of Central Missouri v. Danforth, 428 US 52 (1976), Appellees urged that these precedents limiting the traditional rights of parents, if viewed in the context of a liberty interest of the child and the likelihood of parental abuse, require us to hold that parent’s decision to have a child admitted to a mental hospital must be subjected to an exacting constitutional scrutiny, including a formal, adversary, pre-admission hearing.
Appellees’ argument, however, sweeps too broadly. Simply because the decision of a parent is not agreeable to a child, or because it involves risks does not automatically transfer power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgements concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgements … we cannot assume that the result in Meyer v. Nebraska, supra, and Pierce v. Society of Sisters, supra, would have been different if the children there had announced a preference to learn only English or preference to go to a public, rather that a church school. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parent’s authority to decide what is best for the child (See generally Goldstein, Medical Case for the Child at Risk: on State Supervention of Parental Autonomy, 86 Yale LJ 645, 664-668 (1977); Bennett, Allocation of Child Medical Care Decision — Making Authority: A Suggested Interest Analyses, 62 Va LR ev 285, 308 (1976). Neither state officials nor federal Courts are equipped to review such parental decisions. [emphasis supplied]

Therefore, it is clear that the Court is recognizing parents as having the right to make judgments concerning their children who are not able to make sound decisions, includingtheir need for medical care. A parent’s authority to decide what is best for the child in the areas of medical treatment cannot be diminished simply because a child disagrees. A parent’s right must be protected and not simply transferred to some state agency.

5. Santosky v. Kramer, 455 US 745, 753 (1982)

This case involved the Appellate Division of the New York Supreme Court affirming the application of the preponderance of the evidence standard as proper and constitutional in ruling that the parent’s rights are permanently terminated. The U.S. Supreme Court, however, vacated the lower Court decision, holding that due process as required under the 14th Amendment in this case required proof by clear and convincing evidence rather than merely a preponderance of the evidence.

The Court, in reaching their decision, made it clear that parents’ rights as outlined in Pierce and Meyer are fundamental and specially protected under the Fourteenth Amendment. The Court began by quoting another Supreme Court case:

In Lassiter [Lassiter v. Department of Social Services, 452 US 18, 37 (1981)], it was “not disputed that state intervention to terminate the relationship between a parent and a child must be accomplished by procedures meeting the requisites of the Due Process Clause”. . . The absence of dispute reflected this Court’s historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the 14th Amendment … Pierce v. Society of Sisters … Meyer v. Nebraska.
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state … When the state moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. [emphasis supplied]

6. City of Akron v. Akron Center for Reproductive Health Inc., 462 US 416, 461 (1983)

This case includes, in a long list of protected liberties and fundamental rights, the parental rights guaranteed under Pierce and Meyer. The Court indicated a compelling interest test must be applied.

Central among these protected liberties is an individual’s freedom of personal choice in matters of marriage and family life … Roe … Griswold … Pierce v. Society of Sisters … Meyer v. Nebraska … But restrictive state regulation of the right to choose abortion as with other fundamental rights subject to searching judicial examination, must be supported by a compelling state interest. [emphasis supplied]

7. Lehr v. Robertson, 463 US 248, 257-258 (1983)

In this case, the U.S. Supreme Court upheld a decision against a natural father’s rights under the Due Process and Equal Protection Clauses since he did not have any significant custodial, personal, or financial relationship with the child. The natural father was challenging an adoption. The Supreme Court stated:

In some cases, however, this Court has held that the federal constitution supersedes state law and provides even greater protection for certain formal family relationships. In those cases … the Court has emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed. Thus, the liberty of parents to control the education of their children that was vindicated in Meyer v. Nebraska … and Pierce v. Society of Sisters … was described as a “right coupled with the high duty to recognize and prepare the child for additional obligations” … The linkage between parental duty and parental right was stressed again in Prince v. Massachusetts … The Court declared it a cardinal principle “that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” In these cases, the Court has found that the relationship of love and duty in a recognized family unit is an interest in liberty entitled to Constitutional protection … “State intervention to terminate such a relationship … must be accomplished by procedures meeting the requisites of the Due Process Clause” Santosky v. Kramer … [emphasis supplied]

It is clear by the above case that parental rights are to be treated as fundamental and cannot be taken away without meeting the constitutional requirement of due process.

8. Thornburgh v. American College of Obstetricians and Gynecologists, 476 US 747 (1986)

The U.S. Supreme Court declared, “Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government … Griswold v. Connecticut … Pierce v. Society of Sisters … Meyer v. Nebraska.”

By citing Pierce, the Court included parental liberty in that protected sphere.

9. Board of Directors of Rotary International v. Rotary Club of Duarte, 481 US 537 (1987)

In this case, a Californian civil rights statute was held not to violate the First Amendment by requiring an all male non-profit club to admit women to membership. The Court concluded that parents’ rights in child rearing and education are included as fundamental elements of liberty protected by the Bill of Rights.

The Court has recognized that the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights … the intimate relationships to which we have accorded Constitutional protection include marriage … the begetting and bearing of children, child rearing and education. Pierce v. Society of Sisters … [emphasis supplied]

10. Michael H. v. Gerald, 491 U.S. 110 (1989)

In a paternity suit, the U.S. Supreme Court ruled:

It is an established part of our constitution jurisprudence that the term liberty in the Due Process Clause extends beyond freedom from physical restraint. See, e.g. Pierce v. Society of Sisters … Meyer v. Nebraska … In an attempt to limit and guide interpretation of the Clause, we have insisted not merely that the interest denominated as a “liberty” be “fundamental” (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society. As we have put it, the Due Process Clause affords only those protections “so rooted in the traditions and conscience of our people as to be ranked as fundamental” Snyder v. Massachusetts, 291 US 97, 105 (1934). [emphasis supplied]

The Court explicitly included the parental rights under Pierce and Meyer as “fundamental” and interests “traditionally protected by our society.”

11. Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)

One of the more recent decisions which upholds the right of parents is Employment Division of Oregon v. Smith, which involved two Indians who were fired from a private drug rehabilitation organization because they ingested “peyote,” a hallucinogenic drug as part of their religious beliefs. When they sought unemployment compensation, they were denied because they were discharged for “misconduct.”

The Indians appealed to the Oregon Court of Appeals who reversed on the grounds that they had the right to freely exercise their religious beliefs by taking drugs. Of course, as expected, the U.S. Supreme Court reversed the case and found that the First Amendment did not protect drug use. So what does the case have to do with parental rights?

After the Court ruled against the Indians, it then analyzed the application of the Free Exercise Clause generally. The Court wrongly decided to throw out the Free Exercise Clause as a defense to any “neutral” law that might violate an individual’s religious convictions. In the process of destroying religious freedom, the Court went out of its way to say that the parents’ rights to control the education of their children is still a fundamental right. The Court declared that the “compelling interest test” is still applicable, not to the Free Exercise Clause alone:

[B]ut the Free Exercise Clause in conjunction with other constitutional protections such as … the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U.S.205 (1972) invalidating compulsory-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school.¹⁹ [emphasis supplied]

In other words, under this precedent, parents’ rights to control the education of their children is considered a “constitutionally protected right” which requires the application of the compelling interest test. The Court in Smith quoted its previous case of Wisconsin v. Yoder:

Yoder said that “The Court’s holding in Pierce stands as a charter for the rights of parents to direct the religious upbringing of their children. And when the interests of parenthood are combined with a free exercise claim … more than merely a reasonable relationship to some purpose within the competency of the State is required to sustain the validity of the State’s requirement under the First Amendment.” 406 U.S., at 233.²⁰ [emphasis supplied]

Instead of merely showing that a regulation conflicting with parents’ rights is reasonable, the state must, therefore, reach the higher standard of the “compelling interest test,” which requires the state to prove its regulation to be the least restrictive means.

12. Hodgson v. Minnesota, 497 U.S. 417 (1990)

In Hodgson the Court found that parental rights not only are protected under the First and Fourteenth Amendments as fundamental and more important than property rights, but that they are “deemed essential.”

The family has a privacy interest in the upbringing and education of children and the intimacies of the marital relationship which is protected by the Constitution against undue state interference. See Wisconsin v Yoder, 7 406 US 205 …
The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Parham, 442 US, at 603, [other citations omitted]. We have long held that there exists a “private realm of family life which the state cannot enter.” Prince v Massachusetts …

A natural parent who has demonstrated sufficient commitment to his or her children is thereafter entitled to raise the children free from undue state interference. As Justice White explained in his opinion of the Court in Stanley v Illinois, 405 US 645 (1972) [other cites omitted]:

“The court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v Nebraska, … ‘basic civil rights of man,’ Skinner v Oklahoma, 316 US 535, 541 (1942), and ‘[r]ights far more precious … than property rights,’ May v Anderson, 345 US 528, 533 (1953) … The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v Nebraska, supra.” [emphasis supplied]

The Court leaves no room for doubt as to the importance and protection of the rights of parents.

13. H.L. v. Matheson, 450 US 398, 410 (1991)

In this case, the Supreme Court recognized the parents’ right to know about their child seeking an abortion. The Court stated:

In addition, constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.
Ginsberg v. New York, 390 US 629 (1968) … We have recognized on numerous occasions that the relationship between the parent and the child is Constitutionally protected (Wisconsin v. Yoder, Stanley v. Illinois, Meyer v. Nebraska) … “It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom includes preparation for obligations the state can neither supply, nor hinder.” [Quoting Prince v. Massachusetts, 321 US 158, 166, (1944)]. See also Parham v. J.R.; Pierce v. Society of Sisters … We have recognized that parents have an important “guiding role” to play in the upbringing of their children, Bellotti II, 443 US 633-639 … which presumptively includes counseling them on important decisions.

This Court clearly upholds the parent’s right to know in the area of minor children making medical decisions.

14. Vernonia School District 47J v. Acton, 132 L.Ed.2d 564, 115 S.Ct. 2386 (1995)

In Vernonia the Court strengthened parental rights by approaching the issue from a different point of view. They reasoned that children do not have many of the rights accorded citizens, and in lack thereof, parents and guardians possess and exercise those rights and authorities in the child’s best interest:

Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination—including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. See Am Jur 2d, Parent and Child § 10 (1987).

15. Troxel v. Granville, 530 U.S. 57 (2000)

In this case the United States Supreme Court issued a landmark opinion on parental liberty. The case involved a Washington State statute which provided that a “court may order visitation rights for any person when visitation may serve the best interests of the child, whether or not there has been any change of circumstances.” Wash. Rev. Code § 26.10.160(3). The U.S. Supreme Court ruled that the Washington statute “unconstitutionally interferes with the fundamental right of parents to rear their children.” The Court went on to examine its treatment of parental rights in previous cases:

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children…Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (discussing “the fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it 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. [emphasis supplied]

This case clearly upholds parental rights. In essence, this decision means that the government may not infringe parents’ right to direct the education and upbringing of their children unless it can show that it is using the least restrictive means to achieve a compelling governmental interest.

Conclusion

The U.S. Supreme Court has consistently protected parental rights, including it among those rights deemed fundamental. As a fundamental right, parental liberty is to be protected by the highest standard of review: the compelling interest test.

As can be seen from the cases described above, parental rights have reached their highest level of protection in over 75 years. The Court decisively confirmed these rights in the recent case of Troxel v. Granville, which should serve to maintain and protect parental rights for many years to come.

Copyright 2003 Home School Legal Defense Association. Reprint permission granted.

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Footnotes

1. 262 U.S. 390 (1923).

2. Id., at 402.

3. Id., at 401. Also see Bartles v. Iowa, 262 U.S. 404 (1923) where the Court reached a similar conclusion.

4. Meyer, 262 U.S. 390 at 400.

5. Id., at 403.

6. Pierce, 268 U.S. 510 (1925)

7. Ibid at 534.

8. Pierce, 268 U.S. 510 at 535.

9. Farrington v. Tokushige, 273 U.S. 284 (1927) at 298.

10. Id., at 298.

11. Farrington v. Tokushige, (9 cir.) 11 F.2d 710 at 713 (1926), quoting Harlan, J., in Berea College v. Kentucky 211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81.

12. Prince v. Massachussetts, 321 U.S. 158 (1944).

13. Ibid at 166.

14. Griswold v. Connecticut, 381 U.S. 479, (1965) at 486.

15. Ibid.

16. Yoder, 406 U.S. 205 at 233.

17. Ibid at 232. Burger further admonishes, “and when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.” (Yoder, at 233).

18. Id., at 214.

19. Id., 881.

20. Id., 881, ftn. 1.

Decisions of the United States Supreme Court Upholding Parental Rights as “Fundamental”HSLDA | National Center Special Report.

Parents Rights’ Amendment Reaches Milestone

American Family Rights Association :: The Voice of America’s Families©.

Parents Rights’ Amendment Reaches Milestone

100 Members of Congress Cosponsor Grassroots Movement to Ensure Parents’ Freedom to Raise their Children

WASHINGTON, D.C. – A Constitutional Amendment introduced by U.S. Rep. Pete Hoekstra, R-Holland, to protect the parent-child relationship has reached more than 100 co-sponsors in the House.

“More and more members of Congress and their constituents are recognizing the slow erosion of individual rights posed by the courts, government and international organizations and the threat presented to the parent-child relationship,” Hoekstra said. “This is a grassroots movement fueled by increased awareness about sovereignty and the need to protect rights against government intrusion and international law. It is as simple as preserving parents’ freedom to parent.”

The Parents’ Rights Amendment (H.J.Res.42) would state explicitly in the U.S. Constitution that parents have a fundamental right to raise their children as they see fit while protecting against abuse and neglect.  Threats to the parent-child relationship include potential Senate ratification of the U.N. Convention on the Rights of the Child.

“A review of federal appellate decisions from 2008 demonstrates that our lower courts are turning away from the traditional Supreme Court standards on parental rights,” said Michael Farris, J.D., president of Parentalrights.org. “We need to act now to protect parental rights before this erosion results in a wholesale repudiation of our traditional American principles.”

More information on the Parents’ Rights Amendment and the list of co-sponsors can be viewed at www.parentsrights.us.

Does Family Preservation Work? – Parental Rights

From the National Coalition for Child Protection Reform / 53 Skyhill Road (Suite 202) / Alexandria, Va., 22314 / info@nccpr.org / www.nccpr.org

Family preservation is one of the most intensively-scrutinized programs in all of child welfare. Several studies — and real world experience — show that family preservation programs that follow the Homebuilders model safely prevent placement in foster care.

Michigan’s Families First program sticks rigorously to the Homebuilders model. The Michigan program was evaluated by comparing children who received family preservation services to a “control group” that did not. After one year, among children who were referred because of abuse or neglect, the control group children were nearly twice as likely to be placed in foster care, as the Families First children. Thirty-six percent of children in the control group were placed, compared to only 19.4 percent of the Families First children. [1]

Another Michigan study went further. In this study, judges actually gave permission to researchers to “take back” some children they had just ordered into foster care and place them in Families First instead. One year later, 93 percent of these children still were in their own homes. [2] And Michigan’s State Auditor concluded that the Families First program “has generally been effective in providing a safe alternative to the out-of-home placement of children who are at imminent risk of being removed from the home The program places a high priority on the safety of children.” [3]

An experiment in Utah and Washington State also used a comparison group. After one year, 85.2 percent of the children in the comparison group were placed in foster care, compared to only 44.4 percent of the children who received intensive family preservation services.[4]

A study in California found that 55 percent of the control group children were placed, compared to only 26 percent of the children who received intensive family preservation services. [5]

A North Carolina study comparing 1,254 families receiving Intensive Family Preservation Services to more than 100,000 families who didn’t found that “IFPS consistently resulted in fewer placements…”[6]

And still another study, in Minnesota, found that, in dealing with troubled adolescents, fully 90 percent of the control group children were placed, compared to only 56 percent of those who received intensive family preservation services.[7]

Some agencies are now using IFPS to help make sure children are safe when they are returned home after foster care. Here again, researchers are beginning to see impressive results. In a Utah study, 77.2 percent of children whose families received IFPS help after reunification were still safely with their birth parents after one year, compared with 49.1 percent in a control group.[8]

Critics ignore all of this evidence, preferring to cite a study done for the federal government which purports to find that IFPS is no better than conventional services. But though critics of family preservation claim that this study evaluated programs that followed the Homebuilders model, that’s not true. In a rigorous critique of the study, Prof. Ray Kirk of the University of North Carolina School of Social Work notes that the so-called IFPS programs in this study actually diluted the Homebuilders model, providing service that was less intensive and less timely. At the same time, the “conventional” services sometimes were better than average. In at least one case, they may well have been just as intensive as the IFPS program – so it’s hardly surprising that the researchers would find little difference between the two.

Furthermore, efforts to truly assign families at random to experimental and control groups sometimes were thwarted by workers in the field who felt this was unethical. Workers resisted assigning what they considered to be “high risk” families to control groups that would not receive help from IFPS programs. In addition, the study failed to target children who actually were at imminent risk of placement.

Given all these problems, writes Prof. Kirk, “a finding of ‘no difference between treatment and experimental groups’ is simply a non-finding from a failed study.”[9]

Prof. Kirk’s findings mirror those of an evaluation of earlier studies purporting to show that IFPS was ineffective. The evaluation found that these studies “did not adhere to rigorous methodological criteria.”[10]

In contrast, according to Prof. Kirk, “there is a growing body of evidence that IFPS works, in that it is more effective than traditional services in preventing out-of-home placements of children in high-risk families.”[11]

Prof. Kirk’s assessment was confirmed by a detailed review of IFPS studies conducted by the Washington State Institute for Public Policy. According to this review:

“IFPS programs that adhere closely to the Homebuilders model significantly reduce out-of-home placements and subsequent abuse and neglect. We estimate that such programs produce $2.54 of benefits for each dollar of cost. Non-Homebuilders programs produce no significant effect on either outcome.”[12]

Some critics argue that evaluations of family preservation programs are inherently flawed because they allegedly focus on placement prevention instead of child safety. But a placement can only be prevented if a child is believed to be safe. Placement prevention is a measure of safety.

Of course, the key words here are “believed to be.” Children who have been through intensive family preservation programs are generally among the most closely monitored. But there are cases in which children are reabused and nobody finds out. And there are cases — like Joseph Wallace — in which the warnings of family preservation workers are ignored. No one can be absolutely certain that the child left at home is safe — but no one can be absolutely certain that the child placed in foster care is safe either — and family preservation has the better track record.

And, as discussed in Issue Paper 1, with safe, proven strategies to keep families together now widely used in Alabama, Pittsburgh, and elsewhere, the result is fewer foster care placements and safer children.

Indeed, the whole idea that family preservation — and only family preservation — should be required to prove itself over and over again reflects a double standard. After more than a century of experience, isn’t it time that the advocates of foster care be held to account for the failure of their program?

Updated, April 24, 2006

1. Carol Berquist, et. al., Evaluation of Michigan’s Families First Program (Lansing Mich: University Associates, March, 1993). Back to Text.

2. Betty J. Blythe, Ph.D., Srinika Jayaratne, Ph.D, Michigan Families First Effectiveness Study: A Summary of Findings, Sept. 28, 1999, p.18. Back to Text.

3. State of Michigan, Office of the Auditor General, Performance Audit of the Families First of Michigan Program, July, 1998, pp. 2-4. Back to Text.

4. Mark W. Fraser, et. al., Families in Crisis: The Impact of Intensive Family Preservation Services (New York: Aldine De Gruyter, 1991), p.168. Back to Text.

5. S. Wood, S., K. Barton, C. Schroeder, “In-Home Treatment of Abusive Families: Cost and Placement at One Year.” Psychotherapy Vol. 25 (1988) pp. 409-14, cited in Howard Bath and David Haapala, “Family Preservation Services: What Does the Outcome Research Really Tell Us,” Social Services Review, September, 1994, Table A1, p.400. Back to Text.

6. R.S. Kirk, Tailoring Intensive Family Preservation Services for Family Reunification Cases: Research, Evaluation and Assessment, (www.nfpn.org/resourcess/articles/tailoring.html). Back to Text.

7. I.M. Schwartz, et. al., “Family Preservation Services as an Alternative to Out-of-Home Placement of Adolescents,” in K. Wells and D.E. Biegel, eds., Family Preservation Services: Research and Evaluation (Newbury Park, CA: Sage, 1991) pp.33-46, cited in Bath and Happala, note 3, supra.Back to Text.

8. R.E. Lewis, et. al., “Examining family reunification services: A process analysis of a successful experiment,” Research on Social Work Practice, 5, (3), 259-282, cited in Kirk, note 6, supra.Back to Text.

9. R.S. Kirk, A Critique of the “Evaluation of Family Preservation and Reunification Programs: Interim Report,” May, 2001. Back to Text.

10. A. Heneghan, et. al., Evaluating intensive family preservation services: A methodological review. Pediatrics, 97(4), 535-542, cited in Kirk, note 6, supra.Back to Text.

11. Kirk, note 6, supra.Back to Text.

12. Washington State Institute for Public Policy, Intensive Family Preservation Programs: Program Fidelity Influences Effectiveness. February, 2006, available online at http://www.wsipp.wa.gov/rptfiles/06-02-3901.pdf

The original article can be found here: http://www.nccpr.org/newissues/11.html

Maternal Deprivation? Monkeys, Yes; Mommies, No…

Do children do best with one parent over another? Or does biology determine who is the better parent?

If you ask the feminists of the 70s who wanted to be free of restrictive child-rearing and assume an equal station in the workplace and politics, the answer to the first question would be no. Why would feminists give up their biologically superior position of motherhood, in which a mother is the primary caregiver, in favor of a job? What narcissists mother would do that?

And yet, today, if you ask the very self-same feminists who are leading the charge to narrow sole-custody of children in divorce proceedings to a woman based on some “biological advantage” the answer to the second question would be yes.

Upon this, you have the creation of a legally untenable position given to women based on gender. To get around “having your cake and eating it, too,” state family law has created the “imaginary world” of the “primary parent” dictum, which guides family law today, which is just a primary rehashing of “tender years doctrine”, both of which do not have the legal merit whatsover, nor the empirical research to support either.

But if you go back to the Maternal Deprivation nonsense, you quickly find the empirical research that throws this theory back into the area of “junk science” where it belongs. Maternal Deprivation is both empirically wrong and a sexist theory.

The junk science theory and refutation can be found here:
http://www.simplypsychology.pwp.blueyonder.co.uk/bowlby.html

“Although Bowlby may not dispute that young children form multiple attachments, he still contends that the attachment to the mother is unique in that it is the first to appear and remains the strongest of all. However, on both of these counts, the evidence seems to suggest otherwise.

* Schaffer & Emerson (1964) noted that specific attachments started at about 8 months and, very shortly thereafter, the infants became attached to other people. By 18 months very few (13%) were attached to only one person; some had five or more attachments.

* Rutter (1981) points out that several indicators of attachment (such as protest or distress when attached person leaves) has been shown for a variety of attachment figures – fathers, siblings, peers and even inanimate objects.

Critics such as Rutter have also accused Bowlby of not distinguishing between deprivation and privation – the complete lack of an attachment bond, rather than its loss. Rutter stresses that the quality of the attachment bond is the most important factor, rather than just deprivation in the critical period.

Another criticism of 44 Thieves Study as that it concluded that affectionless psychopathy was caused by maternal deprivation. This is correlational data and as such only shows a relationship between these two variables. Indeed, other external variables, such as diet, parental income, education etc. may have affected the behaviour of the 44 thieves, and not, as concluded, the disruption of the attachment bond.”

There are implications arising from Bowlby’s work. As he believed the mother to be the most central care giver and that this care should be given on a continuous basis an obvious implication is that mothers should not go out to work. There have been many attacks on this claim:

* Mothers are the exclusive carers in only a very small percentage of human societies; often there are a number of people involved in the care of children, such as relations and friends (Weisner & Gallimore, 1977).

* Ijzendoorn & Tavecchio (1987) argue that a stable network of adults can provide adequate care and that this care may even have advantages over a system where a mother has to meet all a child’s needs.

* There is evidence that children develop better with a mother who is happy in her work, than a mother who is frustrated by staying at home (Schaffer, 1990).

There are many articles relating to this nonsense, and how it has been refuted. The original theory was promulgated by John Bowlby. Bowlby grew up mother-fixated because he did not have a relationship with his father. See why here.

Psychological research includes a shocking history and continuation of maternal deprivation experiments on animals. While maternal deprivation experiments have been conducted far more frequently on rhesus macaques and other monkeys, chimpanzees were not spared as victims of this unnecessary research.
Maternal Deprivation applies to monkeys only.

Custody Relocation: A Negative Effect on Children – In LaMusga

© 2004 National Legal Research Group, Inc.

A custodial parent’s proposed relocation will almost always have a negative impact on the relationship of the noncustodial parent and the children. The California Supreme Court recently clarified the standard to be used in relocation cases in that state, holding that this impact should be considered as a factor in determining whether the custodial parent’s proposed relocation will result in detriment to the children sufficient to warrant a modification of custody.

In In re Marriage of LaMusga, Cal. 4th 12 Cal. Rptr. 3d 356 (2004), after a contentious custody battle, the parties were awarded joint custody of their two children with the mother being awarded primary physical custody. Several years later, the mother again sought to relocate to Ohio with the children. A child custody evaluation was performed that established that the father’s relationship with the children would deteriorate after the relocation and that, based on the mother’s previous behavior, there was no indication that she would be supportive of the father’s continued relationship with the children despite her claims to the contrary. The trial court found that the mother’s proposed relocation was not made in bad faith but concluded that the effect of the move would be detrimental to the welfare of the children because it would hinder frequent and continuing contact between the children and the father. The trial court held that if the mother chose to relocate, primary physical custody of the children would be transferred to the father.

The trial court’s decision was reversed by the California Court of Appeal. The court of appeal held that the trial court had failed to properly consider the mother’s presumptive right as custodial parent to change the residence of the children or the children’s need for continuity and stability in the existing custodial arrangement. 12 Cal. Rptr. 3d at 371. The court of appeal also found that the trial court had “placed undue emphasis on the detriment that would be caused by the children’s relationship with Father if they moved.” Id.

The court of appeal relied on an earlier California Supreme Court decision, In re Marriage of Burgess, 13 Cal. 4th 25, 51 Cal. Rptr. 2d 444 (1996). In Burgess, the Supreme Court of California held that in relocation cases there was no requirement that the custodial parent demonstrate that the proposed relocation was “necessary.” LaMusga, 12 Cal. Rptr. 3d at 367 (quoting Burgess, 51 Cal. Rptr. 2d at 452). Instead, the burden is on the noncustodial parent to prove that a change of circumstances exists warranting a change in the custody arrangement. LaMusga, 12 Cal. Rptr. 3d at 367. The supreme court also held that “paramount needs for continuity and stability in custody arrangements . . . weigh heavily in favor of maintaining ongoing custody arrangements.” Id. at 371 (quoting Burgess, 51 Cal. Rptr. 2d at 449-50).

The supreme court rejected the court of appeal’s position that undue emphasis was placed on the detrimental effect of the proposed relocation on the father’s relationship with the children. The court of appeal concluded that all relocations result in “a significant detriment to the relationship between the child and the noncustodial parent” and, therefore, no custodial parent would ever be permitted to relocate with the children as long as any detriment could be established. Id. at 373. The supreme court accepted the validity of the court of appeal’s position but noted that the court of appeal’s fears were unfounded. The supreme court stated that “a showing that a proposed move will cause detriment to the relationship between the children and the noncustodial parent” will not mandate a change in custody. Id. Instead, a trial court has discretion to order such a change in custody based on the showing of such a detriment if such a change is in the best interests of the child. Id. The supreme court explained its holding as follows:

The likely consequences of a proposed change in the residence of a child, when considered in the light of all the relevant factors, may constitute a change of circumstances that warrants a change in custody, and the detriment to the child’s relationship with the noncustodial parent that will be caused by the proposed move, when considered in light of all the relevant factors, may warrant denying a request to change the child’s residence or changing custody. The extent to which a proposed move will detrimentally impact a child varies greatly depending upon the circumstances. We will generally leave it to the superior court to assess that impact in light of the other relevant factors in determining what is in the best interests of the child.

Id. at 374-75.

The Supreme Court of California in LaMusga has seemingly retreated from its much broader decision in Burgess. In Burgess, the court essentially established a presumption in favor of maintaining a custody arrangement in the interests of a child’s paramount need for continuity and stability. In LaMusga, however, the court stepped away from this presumption and found that the child’s need for continuity and stability was just one factor in determining whether to modify a custody award. The court found that other factors, such as the detrimental effect of the proposed relocation on the relationship between a child and the noncustodial parent, could also control the outcome of a custody case depending on the unique facts of each case. The supreme court’s decision in LaMusga seems to subscribe to the principle that due to the fact-intensive nature of relocation cases a comprehensive review of all possible factors impacting on a child’s best interest will yield the most equitable results.

LA County Puts the “Fix” on Parents Rights

Your rights to retain physical and legal custody of your children during divorce proceeding is compromised by California’s new ex post facto law recently passed by the California Senate. As a matter of fact, in Los Angeles County, it already is.

In California counties divorce proceedings in the past 12 years may have been “fixed” in counties where counties supplemented Judges salaries with benefits above the state mandated salary. (Under California Law, only the state may compensate judges for performance of their work. The California Constitution (Sec. 17, 19, 20) states that Judges may not receive money from other parties than their employer, the State of California, and the Legislature has the sole responsibility for setting compensation and retirement benefits.)

However California, like all 50 states and territories, receive hundreds of Billions of $$ from the federal government to run its state courts and welfare programs, including Social Security Act Title Iv-D, Child Support Iv-E, Foster Care and VAWA prevention and intimidation programs against family law litigants. The federal block grants are then given to the counties applying for the monies.

If counties have been paying judges money above state legislated salaries, then counties have been fixing cases for years by maintaining de facto judicial officers to rule in their favor. How does this affect parent’s rights? The money received in block grants is applied for by the counties based on the divorce and custody proceeding awards. For example, the more sole custody or foster home proceedings existing in the county, the more money the county is qualified to receive.

Both the US Constitution, and the California Constitution. California’s wording is even stronger than the US Constitution. Here are the direct quotes:

United States Constitution, Section 9, Article 3
“No bill of attainder or ex post facto law shall be passed.”

Constitution of the State of California – Article I, Section 9
“A bill of attainder ex post facto law, or law impairing the obligation of contracts may not be passed.”

The law in question is SBX2 11 which retroactively pardons, just about everyone involved in official activity including judges who received money for benefits from the county.

“The California Constitution requires the Legislature to prescribe compensation for judges of courts of record. Existing law authorizes a county to deem judges and court employees as county employees for purposes of providing employment benefits. These provisions were held unconstitutional as an impermissible delegation of the obligation of the Legislature to prescribe the compensation of judges of courts of record. This bill would provide that judges who received supplemental judicial benefits provided by a county or court, or both, as of July 1, 2008, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect on that date.”

The law also goes on to state:

“This bill would provide that no governmental entity, or officer or employee of a governmental entity, shall incur any liability or be subject to prosecution or disciplinary action because of benefits provided to a judge under the official action of a governmental entity prior to the effective date of the bill on the ground that those benefits were not authorized under law.”

Is this why attorney Richard I Fine is in a LA County Jail? For more on his story see:

Attorney Richard Fine files suit against judges http://www.dailynews.com/ci_8113733

Richard Fine, a brave and talented California attorney and United States Department of Justice Attorney http://www.ahrc.se/new/index.php/src/tools/sub/yp/action/display/id/2652

Metropolitan News-Enterprise http://www.metnews.com/articles/2009/stur021809.htm

The Full Disclosure Network: http://www.fulldisclosure.net/Programs/538.php and http://www.fulldisclosure.net/Programs/539.php

JUDICIAL BENEFITS & COURT CORRUPTION (Part 3-4) http://www.fulldisclosure.net/Programs/540.php

FISCAL CRISIS: Illegal Payments Create Law For Judicial Criminal & Liability Immunity: Nominees For U S Supreme Court To Be Impacted? See: http://www.fulldisclosure.net/news/labels/SBX2%2011.html

The Bill as passed by the Senate: http://info.sen.ca.gov/pub/09-10/bill/sen/sb_0001-0050/sbx2_11_bill_20090214_amended_sen_v98.html

The Primary Parent Presumption: Primarily Meaningless

By Dr. Richard A. Warshak, Ph.D.
16970 Dallas Parkway, #202, Dallas, TX 75248

Nineteen ninety-three marked the thirtieth anniversary of the publication of The Feminine Mystique, the book that spearheaded the drive to unlace the cultural straitjacket of rigid sex-role prescriptions. As we expanded the conventional image of women to include roles beyond those of wife, housekeeper, and mother, we encouraged men to think of themselves as more than just husbands and bread-winners. We invited them to become active partners in the delivery room . . . and they accepted. We required their participation in Indian Guides . . . and they complied. We extolled the importance of father-child bonding, trumpeted statistics linking a father’s absence to juvenile delinquency. . . and they listened.

The problem, for some divorcing women, is that their husbands listened too well, and took seriously the call to parenthood. They became emotionally attached to their offspring, and, when the marriage ended, they were unwilling to be demoted to the second string; unwilling to sit on the sidelines of their children’s lives. Although lacking in hard data to prove the point, we have at least the perception that more men are seeking and gaining custody of their children after divorce.

Why is this a problem? Because women do not enjoy living apart from their children any more than do men. Also, most women do not want to relinquish the power that goes with custody. This has led to the ironic situation in which some of the same feminists who, in the early 70s, denounced motherhood as “enslavement” now lead a campaign to protect motherhood from divorced fathers who want more involvement with their children. But they face a crucial dilemma: They need to resurrect the belief that women are uniquely suited to rear children and therefore the natural choice for sole custody without appearing to endorse the notions that biology is destiny and that the sexes merit unequal treatment before the law.

The solution to this dilemma is the linguistic sleight of hand known as the “primary parent presumption.” This guideline would give preference to the parent who is designated “primary” in the child’s life, variously defined as the parent who spends the most time with the child, is more responsible for the child’s day-to-day care, or performs more of the daily repetitive maintenance tasks such as chauffeuring, shopping for clothes, preparing meals, and bathing. Although touted as a gender-neutral standard, everyone agrees that the primary parent presumption would give mothers the same advantage that they enjoyed with the tender years presumption. In fact, law professor Mary Becker advocates dropping the pretense of gender-neutrality and renaming the primary parent presumption the “maternal deference standard.”

Briefly, the argument goes that since women are more involved in primary caregiving, they deserve custody.
Fathers’-rights advocates respond that it is unfair to penalize men for reduced involvement with their children, since they are only fulfilling society’s notions of the man’s role as the family’s breadwinner. Neither side’s arguments are compelling. Both are blinded by the pre-19th century premise that children are property to be “awarded” to the rightful owner. Both sides miss the point that a custody decision should be guided by the needs of the child not the parents’ sense of entitlement.

Some of my colleagues offer arguments in support of the primary parent presumption. They point out that a
woman who has been most involved in her children’s daily care already possesses the requisite skills. She has less to learn than the father and, by virtue of her experience, is probably more competent to assume the duties of sole custody. Also, because the primary parent standard appears less ambiguous than the best interests standard, parents would be less likely to litigate over custody — a distinct advantage to the family. But that may be its only advantage. Under critical appraisal, this proposal suffers many serious drawbacks.

Unless we regard custody as a reward for past deeds, the decision about the children’s living arrangements should reflect a judgment about what situation will best meet their needs now and in the future. Differences in past performance are relevant only if they predict future parental competence and child adjustment. But they do not.

The primary parent presumption overlooks the fact that being a single parent is a very different challenge than being one of two parents in the same home. A consensus of research reveals a predictable deterioration in the single mother’s relationship with her children. After divorce, the average mother has less time and energy for her children and more problems managing their behavior, particularly that of her sons. Research has also demonstrated that despite mother’s greater experience in daily child care, fathers who would not be considered primary caretakers during the marriage are as capable as divorced mothers in managing the responsibilities of custody.

And, most important, their children fare as well as children do in mother-custody homes.

A more basic problem with the proposed standard: How do we determine who is the primary parent? Before divorce parents think of themselves as partners in rearing their children. Whether or not they spend equal time with the children, both parents are important, and mountains of psychological research support this.

Before divorce, we do not rank order parents. Only in the heat of a custody battle do Mom and Dad begin vying for the designation “primary parent.”

On what basis do we award this coveted title? We cannot simply measure the amount of time each parent
spends with the child. Research has established that, beyond a certain minimum, the amount of time a parent spends with a child is a poor index of that parent’s importance to the child, of the quality of their
relationship, or of the parent’s competence in childrearing. In fact, we all know of parents who are too involved with their children, so-called “smothering” parents who squelch any signs of independence.

If more extensive contact does not make a primary parent, what does? Most definitions provide a list of responsibilities: The primary parent shops for food and clothes, prepares meals, changes diapers, bathes and dresses the child, takes the child to the doctor, and drives the child to school and recreational activities. Such criteria, though, ignore the overriding importance of the quality of parent-child relationships.

Furthermore, critics have argued that this list reflects gender bias. Shopping for food and clothes is included, but not earning the money which funds the shopping trips. Also conspicuously absent are responsibilities typically shared by fathers and in which fathers often predominate, activities such as playing, discipline, moral guidance, encouragement and assistance with school work, gender socialization, coaching team sports, and — something whose significance to children is often overlooked — providing a sense of physical protection and security.

Is the primary caretaker the one who does the most to foster the child’s sense of emotional security, the person to whom the child turns in times of stress — the role we most often associate with mothers? Or is it the parent who does the most to promote the child’s ability to meet the demands of the world outside the family — the role we most often associate with fathers? We really have no basis for preferring one contribution over the other. Both are necessary for healthy psychological functioning.

We can say that both parents contribute distinctively to their child’s welfare. And during different
developmental stages a child may relate better to one parent than the other, or rely on one parent more than
the other. But most children form strong attachments to both parents in the first year of life and maintain important ties to both parents throughout their lives. By rank ordering the importance of parents, we dismiss children’s own experiences of their parents’ value, reinforce gender stereotypes, and perhaps discourage fathers from assuming more parenting responsibilities.

In sum, the primary parent presumption is misinformed, misguided, misleading, and primarily meaningless.

Copyright © 1996 by Richard A. Warshak, Ph.D.
16970 Dallas Parkway, #202, Dallas, TX 75248 Dr. Richard A. Warshak is a clinical, research, and
consulting psychologist, clinical professor of psychology at the University of Texas Southwestern
Medical Center at Dallas, and author of The Custody Revolution and Divorce Poison: Protecting the
Parent-Child Bond From a Vindictive Ex. He has published extensively in the area of divorce and
custody and consults with attorneys, mental health professionals, and families. Additional custody
resources, including material on relocation, overnight access, and parental alienation syndrome,
can be found at http://www.warshak.com.

[A version of this essay was published as Chapter 28 (pages 101-103) in 101+ Practical Solutions for the
Family Lawyer, Gregg M. Herman, Editor, American Bar Association (1996).]

The original article can be found here.

Parental Rights – Analysis by Article of the UNCRC – Part 9 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Giving the State a Grasp on Your Kids

Part II of an in-depth look at Article 18 of the UN Convention on the Rights of the Child

When Kevin and Peggy Lewis volunteered their child for special education services, they never dreamed they would need a lawyer if they wanted to change their minds. After their son developed several learning issues, including an inability to focus in class and difficulty processing and understanding oral and written communication, the Lewis’s turned to the Cohasset Middle School in Massachusetts for help.1 But after a year in the school’s special education program, their son was not improving academically, and felt harassed by school officials who were closely monitoring and reporting on his behavior – everything from chewing gum in class to forgetting his pencil.2

Initially, the Lewis’s requested that the school pay for private tutoring, but as their relationship with the administration continued to decline, the exasperated parents finally decided to withdraw their son from the school’s program and to pay for private tutoring out of their own pockets.3

Apparently, that option wasn’t good enough for the school.

In December 2007, Cohasset hauled Kevin and Peggy into court, claiming that the parents were interfering with their son’s “constitutional right to a free and appropriate education.”4

After a day-and-a-half of argument, the judge sided with the school in an unwritten opinion.5

“This is truly devastating to all parents who have children on an IEP,” Peggy said, referring to the individual education plans for special education students. “What it means in fact when you sign an IEP for your child, you sign away your parental rights. . . . Now Cohasset has their grasp on my kid.”6

“Help” for Parents

At first glance, it seems odd that a school would take parents to court to compel them to accept state services. After all, as observers of the case commented, schools usually objects when parents demand more aid for their children, not when the parents try to withdraw their child from the program.7

But according to the UN Convention on the Rights of the Child, once parents have asked the state for assistance in raising their children, the state has both the responsibility and the authority to see the job through – even if the parents no longer support the state’s solution.

In addition to imposing legally-enforceable “responsibilities” on parents, Article 18 of the Convention also requires states to “render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities,” and to establish “institutions, facilities and services for the care of children.”8

At first glance, the offer of “assistance” to parents may appear harmless, and even generous, but appearances are often deceiving. While the government may claim to offer services to parents on a purely “voluntary” basis, parents soon discover that government “assistance” isn’t always free.

When “voluntary” doesn’t mean “voluntary”

For examples of this dangerous trend, one need look no further than the nation of Sweden, the first western nation to ratify the Convention.

In addition to mandatory sex-education, free child care for working parents, and a national ban on corporal punishment, Sweden’s local municipalities are also required by law to offer parents a broad array of “voluntary” services that promote “the favourable development of children and young persons.”9 Unfortunately, according to Swedish attorney and activist Ruby Harrold-Claesson, voluntary care “in no way is voluntary since the social workers threaten the parents to either give up their child voluntarily or the child will be taken into compulsory care.”10

If the state determines at a later date that the “voluntary” services are not helping, the municipality has both the responsibility and the authority to physically “take a child into care and place him in a foster home, a children’s home or another suitable institution.”11 According to Harrold-Claesson, since the emergence of such programs, “children are being taken from their parents on a more routine basis.”12

Unfortunately, these disturbing trends are not confined to Sweden. Even here in the United States, “voluntary” services for parents are often the first step toward state control of families.

Holding Children Hostage

As a young mother of three, “Katianne H.” faced tremendous difficulties in making ends meet.13 Although she was never unemployed, Katianne had difficulty putting her job ahead of the needs of her young family. So when her three-month-old son Xavier developed severe allergies to milk and soy protein, her pediatrician recommended that she relieve some of the pressure placed upon her by requesting that her son be placed in “temporary out-of-home care.”14 Thinking such a placement was truly “voluntary,” Katianne agreed.

Within a few months, Xavier was weaned from the feeding tube to a bottle, but when Katianne sought to bring him home, the state refused. It would take more than two-and-a-half years – and a decision from the Nebraska Supreme Court – before Katianne would win her baby boy back. 15

In a unanimous ruling, the court said the child should have been returned to his mother as soon as his medical condition was resolved. Instead, state authorities drew up a detailed plan requiring the mother to maintain steady employment, attend therapy and parenting classes, pay her bills on time, keep her house clean, improve her time management, and be cooperative with social workers. When she failed to fully comply with all these obligations within fifteen months, her parental rights were terminated.16

The Court condemned the state for keeping Xavier “out of the home once the reasons for his removal had been resolved,” and warned that a child should never be “held hostage to compel a parent’s compliance with a case plan” when the child could safely be returned home.17

A familiar pattern

According to studies, scholars, lawyers, and advocates, voluntary placement in the United States – like “voluntary” placement in Sweden – is often the first step toward the state getting a grasp on children. Here are just a few examples from within our own borders:

· A 1994 study in New Jersey found that “parents often report signing placement agreements under the threat that court action against them will be taken if they do not sign,” particularly parents who have “language or other barriers making it difficult or impossible for them to read and understand the agreement they were signing.”18 There are also no “clear legal standards to protect a family once it has entered the system,” even if it enters voluntarily: “existing legislation grants judges and caseworkers virtually unrestricted dispositional authority.”19

· In 1998, Melville D. Miller, President and General Counsel of Legal Services of New Jersey, warned that when parents sign voluntary placement agreements, parents give the state “custody of their children without any decision by the court that they have abused or neglected them.”20 In addition, voluntary placement often waives a family’s opportunity for free legal representation in court, leaving families – particularly poor families – with “no assistance in advocating for what they need” when disputes with the state arise.21

· In 1999, Dr. Frank J. Dyer, author and member of the American Board of Professional Psychology, warned that parents can be “intimidated into “voluntarily” signing placement agreements out of a fear that they will lose their children,” and that in his professional counseling experience, birth parents frequently complain that “if they had known from the outset that the document that they were signing for temporary placement of their children into foster care gave the state such enormous power over them, they would have refused to sign and would have sought to resist the placement legally.”22

· The Child Welfare League of America, in its 2004 Family’s Guide to the Child Welfare System, reassures parents that the state “do[es] not have to pursue termination of parental rights,” as long as the state feels that “there is a compelling reason why terminating parental rights would not be in the best interest of the child.”23 If parents and social workers disagree about the fate of a child in “voluntary placement,” the CWLA simply states that “if you decide to bring your child home, and the agency believes that this would interfere with your child’s safety, it has the right to ask the court to intervene. You also have the right to explain to the court why your child’s safety would not be in jeopardy if he came home.”24

· The National Crittenton Foundation, in a web booklet published for young, expectant mothers who are currently in the foster care system, warns in large, bold print that by signing a voluntary placement agreement, “you will most likely lose all custody of your baby, even if you want to regain custody of your baby after you turn 18.”25

Never Too Late

If one can learn anything from the stories of the Lewises, Katianne, and the plight of Swedish parents, it is that the government wields incredible power over parents who have “voluntarily” accepted its aid when caring for their children. These parents are often poor, struggling, and searching for the means to keep their families together, but instead of helping them, the open hand of the state can easily become a clenched fist, either bullying parents into submission or forcibly taking their children from them.

Thankfully, it is not too late to protect children and their families by protecting the fundamental right of parents to raise their children, and to reject government programs that are unneeded or unwanted. The state should only interfere with the family for the most compelling reasons – not because loving parents were misled about the true nature of “voluntary” care.

Please consider sending this message to your friends and urging them to sign the Petition to Protect Parental Rights.

This article was written for ParentalRights.org by Peter Kamakawiwoole, Jan. 29, 2009.

Notes

1. James Vazniz, “Cohasset schools win case v. parents,” The Boston Herald (December 15, 2007) (accessed January 28, 2009).
2. James Vazniz, “Parents want son out of special ed,” The Boston Herald (December 13, 2007) (accessed January 28, 2009).

3. Vazniz, “Cohasset schools win case v. parents.”

4. Vazniz, “Parents want son out of special ed.”

5. Vazniz, “Cohasset schools win case v. parents.”

6. Vazniz, “Cohasset schools win case v. parents.”

7. Vazniz, “Cohasset schools win case v. parents.”

8. UN Convention on the Rights of the Child, Article 18.2.

9. Ruby Harrold-Claesson, “Confiscating Children: When Parents Become Victims,” The Nordic Committee on Human Rights (2005) (accessed January 17, 2009)

10. Harrold-Claesson, “Confiscating Children: When Parents Become Victims”

11. Harrold-Claesson, “Confiscating Children: When Parents Become Victims”

12. Harrold-Claesson, “Confiscating Children: When Parents Become Victims”

13. “Katianne” is the name given to the mother by the Nebraska Supreme Court, which decided her case in In Re Xavier H., 740 N.W.2d 13 (Neb. 2007).

14. In re Xavier H., 740 N.W.2d at 21.

15. “Nebraska Supreme Court returns boy to mother,” Omaha World Herald (October 19, 2007) (accessed January 29, 2009).

16. “Nebraska Supreme Court returns boy to mother.”

17. In re Xavier H., 740 N.W.2d at 26.

18. Emerich Thoma, “If you lived here, you’d be home now: The business of foster care,” Issues in Child Abuse Accusations, Vol. 10 (1998) (accessed January 27, 2009).

19. Thoma, “If you lived here, you’d be home now.”

20. Melville D. Miller, “You and the Law in New Jersey ” (Rutgers University Press, 1998): 200.

21. Miller, You and the Law in New Jersey,” 200.

22. Frank J. Dyer, “Psychological Consultation in Parental Rights Cases” (The Guilford Press, 1999): 26.

23. Child Welfare League of America (CWLA), “Placements to Obtain Treatment and Services for Children,” A Family’s Guide to the Child Welfare System (2004): 5 (accessed January 27, 2009).

24. CWLA, “Placements to Obtain Treatment and Services for Children,” p. 5.

25. The National Crittenton Foundation, “Crittenton Booklet for Web,” pp. 11-12. (accessed January 28, 2009)

Parental Rights – Analysis by Article of the UNCRC – Part 8 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 18, Part 1: Government-Supervised Parenting

During our series on the UN Convention on the Rights of the Child, most of the articles we have considered have focused on the relationship between the state and the child. Article 18 is therefore unique in its emphasis on the responsibilities of parents, and the supervised relationship that these parents have with the state.

Article 18 is also one of the more complex articles in the Convention, divided into three sections that address distinct facets of the relationship between parents and the state. This week, we will focus on the first section, which says that “States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child,” and that parents are primarily responsible for their children. As parents, “the best interests of the child will be their basic concern.”

The danger of Article 18 is that it places an enforceable responsibility upon parents to make child-rearing decisions based on the “best interests of the child,” subjecting parental decisions to second-guessing at the discretion of government agents.

Obligations on Parents?

Article 18 stands out because it affects not only the relationship between the UN and the nation that ratifies the Convention, but also the relationship between private individuals and their government: a relationship that is usually changed through legislation at a local level. In fact, the UN’s Implementation Handbook for the CRC explains that “when article 18 was being drafted, the delegate from the United States of America commented that it was rather strange to set down responsibilities for private individuals, since the Convention could only be binding on ratifying governments.”

But instead of paying heed to this objection, the drafters of the CRC rejected it, making the Convention enforceable against private individuals and requiring that “parental rights be translated into principles of parental responsibilities.” The Handbook itself notes that if the actions of parents could be shown to impair the child’s physical, psychological, or intellectual development, “the parents” – not the state – “can be found to be failing in their responsibilities.” (emphasis added).

The end result is parental involvement under state supervision. According to Chris Revaz, Article 18 “recognizes that parents and legal guardians have the primary responsibility for the upbringing and development of the child, with the best interest of the child as their basic concern,” but also invests in the state “a secondary responsibility to provide appropriate assistance to parents and legal guardians in meeting their responsibilities.” Roger Levesque opines that such supervision attempts to “regulate the relationship between child and state,” essentially relegating the role of parental and familial involvement to a position of “secondary importance.”

Enforcing the “Best Interest” Standard

As a previous article in our series has already discussed, the “best interests of the child” is a significant theme in the Convention, providing “decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’.”

The inevitable result, according to Levesque, is that “by placing the burden on the State to take affirmative steps toward ensuring the fulfillment of children’s rights, the Convention assumes responsibility and invokes the State as the ensurer and protector of rights.” This point is echoed by Law Professor Bruce Hafen, who warns that the Convention’s emphasis on the “best interests of the child” creates “an arguably new standard for state intervention in intact families.” According to Hafen, legal authors in Australia have already suggested that “under the CRC, parental childrearing rights are ’subject to external scrutiny’ and ‘may be overridden’ when ‘the parents are not acting in the best interests of the child.’”

Hafen warns that this conclusion – though in opposite to America’s cultural and legal heritage – is “consistent with the CRC’s apparent intent to place children and parents on the same plane as co-autonomous persons in their relationship with the state.” This is a far cry from America’s legal heritage, which has long held that parents have a fundamental right to oversee the upbringing and education of their children, free from government control. Article 18 makes it plain, however, that under the Convention, it is the state that is ultimately responsible for the fate of its children, and has authority to supervise its parents.

Article written for ParentalRights.org by Peter Kamakawiwoole, June 24, 2008.

Sources

UN Convention on the Rights of the Child
http://www.unhchr.ch/html/menu3/b/k2crc.htm

Cris Revaz, “An Introduction to the U.N. Convention on the Rights of the Child,” in The U.N. Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications on U.S. Ratification (2006): 10-11.

Roger Levesque, International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic Policy (1994): 214.

Bruce and Jonathan Hafen, Abandoning Children to their Autonomy (1996): 461-462, 464.

United Nations Children’s Fund, Impl

Parental Rights – Analysis by Article of the UNCRC – Part 7 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 16: Privacy From Parents

During our series on the UN Convention on the Rights of the Child, a constant theme has been the recurring intervention of government power in the relationship between children and their parents. Broad discretion for the state is particularly prevalent in the Convention’s “freedom” provisions, which guarantee choices to children when it comes to expression, information, religion, and association.

Perhaps the most troubling of these “freedom” provisions is article 16, which stipulates that “no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence.” More so than any other section of the Convention, article 16 invokes the power of the government in ways previously unseen and untested in America’s legal and political history.

Paradigm Shift

The key to understanding article 16 is found in its absolute language: no child is to have his or her right to privacy violated. According to American law professor Cynthia Price Cohen, article 16 “uses the strongest obligatory language in the human rights lexicon to protect the child’s privacy rights.”

This is a strong break from American law. According to Catherine Ross, writing in the University of Pennsylvania Journal of Constitutional Law, the concept of a “right to privacy” has been used within the American context to support limited reproductive freedom for children, including the right to receive information, counseling, and contraceptives without parental consent or notification. But even in such cases, the Supreme Court has attempted to draw some sort of balance between the privacy rights of the child and the role of parents in raising and directing their children: never has the Court stated that children have an absolute right to privacy even from their parents.

Displacing Parents

In contrast, the “right to privacy” within the Convention is far broader than anything contemplated in American law or jurisprudence, bestowing an absolute right to privacy which, according to the UN Committee on the Rights of the Child in their 2004 report on Japan, includes privacy in “personal correspondence and searching of personal affects.” This includes more than just a child’s diary or letters to a pen pal: it includes e-mails composed, websites visited, and a growing plethora of other means of communication with the outside world.

Law professor Bruce Hafen notes that this strong language makes little allowance for the role of adults who are unavoidably involved in a child’s private world – namely, the child’s parents. Scholar Barbara Nauck adds that when the responsibility of parents to “guide and direct” their children comes into conflict with the right of children to have privacy, it is highly questionable whether parents will have the lawful authority to interfere with the child’s privacy.

Only the First Step

On this basis alone, law professor Richard Wilkins has warned that Article 16 has the potential to place the basic ability to discipline and monitor children – activities necessary for effective parenting – into serious doubt. In addition, the provision’s absolute guarantees could also be extended through state laws or the decisions of judges to include other “rights” guaranteed by the Convention – such as the freedom of religion, expression, or information – with devastating consequences to the authority and effectiveness of parents. It is the absolute, all-encompassing nature of article 16 that poses the real danger to both children and parents.

Please forward this message on to your friends and urge them to sign the Petition to Protect Parental Rights at http://www.parentalrights.org/join-the-fight.

Article written for ParentalRights.org by Peter Kamakawiwoole, May 12, 2008.

Sources

Cynthia Price Cohen, The Role of the United States in Drafting the Convention on the Rights of the Child (1998): 34.

Catherine Ross, An Emerging Right for Mature Minors to Receive Information (1999): 261.

UN Committee on the Rights of the Child, Concluding Observations: Japan, CRC/C/15/Add.231 (2004)

Bruce Hafen and Jonathan Hafen, Abandoning Children to their Autonomy (1996): 472.

Barbara Nauck, Implications of the United States Ratification of the UN Convention on the Rights of the Child (1994): 700.

Richard Wilkins, et. al., Why the United States Should Not Ratify the Convention on the Rights of the Child (2003): 421.

Parental Rights and Due Process

PUBLISHED IN
THE JOURNAL OF LAW AND FAMILY STUDIES
VOLUME 1, NUMBER 2 (1999), pp. 123– 150
UNIVERSITY OF UTAH SCHOOL OF LAW

Donald C. Hubin
Department of Philosophy
The Ohio State University
Columbus, OH 43210
614-292-7914
hubin.1@osu.edu

Copyright © 1999 by Donald C. Hubin

ABSTRACT FOR “PARENTAL RIGHTS AND DUE PROCESS”

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.

Parental Rights and Due Process
DONALD C. HUBIN *

Forget, for a moment, the title of this paper. Imagine that it is titled, “Due Process and the Deprivation of Rights”. Now, consider an unspecified right, R, which is “a fundamental right protected by First, Fifth, Ninth and Fourteenth Amendments“. 1 Suppose that this right is regarded as “far more precious than property rights” 2 and that the Supreme Court characterizes R as an “essential” right 3 that protects a substantial interest that “undeniably warrants deference, and, absent a powerful countervailing interest, protection“. 4 Imagine 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” 5 and that, because of this, “there must be some compelling justification for state interference” 6 with R.

These aspects of the nature of R stipulated, imagine further that our legal system actively functions to suspend or deny this right literally tens of thousands of times a year— that this is done openly and under color of state law. Suppose that the suspension, and sometimes even the denial, of R is done on the basis of little or no evidence of any state interest whatsoever. Imagine that, in these cases of suspension or denial, there is no demonstration, and often no allegation, that R has been, or is likely to be, abused or that the retention of R by the individual in question would be harmful to the legitimate interests of any other person. Suppose, further, that even the temporary suspension of this right shifted the burden of proof onto the former right-holder to demonstrate that the suspension should not become a permanent denial.

If there were such a right and it were treated in such a cavalier way, what should our reaction be? Outrage? Indeed!

But is there a right that can be substituted for R and make all of the above suppositions true? Absolutely. But it is neither the right to property (and not simply because it cannot be more precious than itself) nor the right to liberty. Though there are often legal threats to these rights, on the whole they receive significant protection from the courts. There is only one right that has the importance described above and receives so little protection. It is the right of custody of our children— the cluster of rights labeled ‘parental rights’. 7

The above might strike one as flagrant hyperbole. Termination of parental rights is not done in the casual way I have described. 8 The state is required, a critic might point out, to show by “clear and convincing evidence” that a compelling state interest is at stake before termination of parental rights. 9. And so it is, sometimes. But there is a context in which parental rights are suspended with little or absolutely no evidence of the involvement of any state interest whatsoever. That context is divorce. While this context apparently affects our reaction to the casual procedures by which we suspend or terminate parental rights (else one would expect a hue and cry over this practice), it does not weaken the argument against such procedures. Divorce proceedings routinely involve unconscionable violations of minimal due process protections of fundamental rights and liberties. 10

I argue for this thesis below. I begin by discussing some features of parental rights and of the state interest in the custody of children. Next, I examine the sorts of due process considerations that have arisen in the context of termination of parental rights outside the divorce context. I then describe a procedure commonly used during divorce proceedings to determine custody during the period of the divorce litigation (pendente lite). The arrangements during the pendency of the litigation are extremely important because they establish a status quo which influences what it is reasonable to do with respect to parent/ child arrangements in the final divorce decree and, even more importantly, because of the direct effect they appear to have on the long-term parent child relationship. (A full explanation of the reasons for focusing on the procedures for determining temporary custody, as opposed to permanent custody, will be offered later.) In the penultimate section, I argue directly for the thesis that this procedure involves the temporary denial of fundamental rights without due process of law. Finally, I turn from the abstract discussion of the nature and basis of legal rights to discuss the real interests protected by these rights.

The issue of parental rights and due process is not sterile or pedantic; parental rights protect the vital interests of parents and children alike. Our cavalier legal treatment of them is inexcusable for the real human devastation it causes.

To read more, following this link: http://familyrights.us/bin/white_papers-articles/parental_rights_and_due_process.htm

Federal HIPAA Law Oversteps Parental Rights

by Michael P. Farris, J.D.

Sid Daugherty, a father from Sullivan County, Tennessee, took his 13 year-old son to the doctor this spring seeking assistance because of some reactions his son was having to his prescription medication. The doctor asked the father if he could perform some tests to see if the boy was also using illegal drugs. The dad agreed.

But, when the tests came back, the doctor refused to give the dad the results citing the right of the child to medical privacy.

As a result, the Tennessee legislature is scheduled to take up a bill attempting to ensure that parents always have the results of their children’s medical exams.
Most of us are surprised to learn that such a bill is deemed to be necessary. Don’t all parents have the right to their children’s medical information? After all, the doctor thought he had to get the dad’s permission to perform the tests; how in the world can it be suggested that the father didn’t have the right to see the results?

The answer is: our federal government has invaded parents rights through the HIPAA regulations—yes, those same regulations that waste millions of pieces of paper every year by requiring that doctors give us pages of tiny print legalese that most Americans have the good sense to simply ignore.

The federal government maintains a website, giving official answers to questions about the implementation of HIPAA. This is what that site says about parental rights:

What right does a minor have under HIPAA to claim his or her own privilege to deny access to records under HIPAA? If the minor does not want parents or others to have access to his or her records, can the provider refuse to provide the records to the parents?

The short answer to this question is that if the health care provider or facility concurs with the minor that the parents should not have access to his or her treatment records, the minor has a good chance of precluding parents from access to the records or granting access to others.

What is the authority for this “short answer”? The official regulations (45 CFR 164.502(g)(3)(ii)(C)—this is the number of the rule for those keeping score at home) say that unless state law requires a doctor to disclose the medical information to the parent, the doctor may unilaterally refuse to give the information to the parent if the doctor’s decision is “in the exercise of professional judgment.” This section is not limited to cases of suspected abuse or neglect. In fact, there is a separate section of the federal regulations which covers such cases.

It is important to see the role that the wishes of the child play in this situation. The question asks whether a child may keep his medical records a secret. But the regulation gives the doctor unilateral control to withhold information from parents. No request from the child is required to trigger the doctor’s power to keep parents in the dark. It is the doctor’s judgment alone that allows him to withhold medical results from parents.

This is the normal way that children’s rights theories work out in practice. The power lands in the hands of an army of self-appointed nannies who believe that they should make decisions about children in place of parental judgment.

A reasonable question still remains: What about the Constitution? Most people think that parents have a constitutional right to raise their children in a way that cannot be undermined by some federal regulation. Well, unfortunately most Americans do not include the current members of the United States Supreme Court.

In Troxell v. Granville, decided in 2000, the Supreme Court split six different ways on the issue of parental rights. Only one justice, Clarence Thomas, ruled that parental rights are a fundamental right and that the same high legal tests for all fundamental rights should be made applicable here.

Justice Scalia, a friend of conservative values in most cases, said that he could not find any legally enforceable right of parents in the Constitution so until there was a constitutional amendment protecting parental rights, he was required to conclude that the government can override parents’ wishes on a whim.

Congressman Pete Hoekstra has introduced HJR 42, the Parental Rights Amendment, to fix this problem once and for all by putting the traditional test of parental rights into the actual text of the Constitution. There are currently 85 co-sponsors for this Amendment in the House of Representatives. Senator Jim DeMint has announced that he intends to introduce this same bill in the Senate later this spring.

Under the Parental Rights Amendment, this HIPAA regulation would be clearly unconstitutional. In abuse cases, doctors could withhold medical results from parents who are the perpetrators of abuse under official investigation. But, the idea that the doctor could simply invoke “professional judgment” to override the wishes of parents would simply not be possible. With the PRA, parents would be guaranteed a legally enforceable right without worrying about what they are going to find buried in the fine print of some federal regulation.

http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={6A006580-AF53-4C46-9EF0-6050E4DFF197}