The
Constitutional Right To Be a Parent
The United States Supreme Court
has held in Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L.Ed. 2d 511
that:
We have recognized on numerous occasions that
the relationship between parent and child is constitutionally protected. See,
e.g., Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 1541-42 L.Ed.2d
15 (1972); Stanley v. Illinois, supra; Meyer v. Nebraska, 262 U.S. 390,
399-401, 43 S.Ct. 625, 626-27, 67 L.Ed. 1042 (1923). "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." Prince v. Massachusetts, 321 U.S.
158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). And it is now
firmly established that "freedom of personal choice in matters of...
family life is one of the liberties protected by the Due Process Clause of the
Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U.S.
632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974).
The rights of
parents to the care, custody and nurture of their children is of such character
that it cannot be denied without violating those fundamental principles of
liberty and justice which lie at the base of all our civil and political
institutions, and such right is a fundamental right protected by this amendment
(First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247;
U.S. D.C. of Michigan, (1985).
The several
states has no greater power to restrain individual freedoms protected by the
First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).
Loss of First
Amendment Freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury. Though First Amendment rights are not absolute,
they may be curtailed only byinterests of vital importance, the burden of
proving which rests on their government.Elrod v. Burns, 96 S Ct 2673; 427 US
347, (1976).
Law and court
procedures that are "fair on their faces" but administered "with
an evil eye or a heavy hand" are discriminatory and violates
the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins,
118 US 356, (1886).
Even when blood relationships are strained, parents retain vital interest in
preventing irretrievable destruction of their family life; if anything,
persons faced with forced dissolution of their parental rights have more
critical need for procedural protections than do those resisting state
interventioninto ongoing family affairs. Santosky v. Kramer, 102 S Ct
1388; 455 US 745, (1982).
Parents have a
fundamental constitutionally protected interest in continuity of legal bond
with their children. Matter of Delaney, 617 P 2d 886,
Oklahoma (1980). .
The liberty
interest of the family encompasses an interest in retaining custody of one's
children and, thus, a state may not interfere with a parent's custodial rights
absent due process protections. Langton v.
Maloney, 527 F Supp 538, D.C. Conn. (1981).
Parent's right to custody of child is a right encompassed within protection of
this amendment which may not be interfered with under guise of protecting
public interest by legislative action which is arbitrary or without reasonable
relation to some purpose within competency of state to effect. Reynold v. Baby
Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US
963, IL, (1977).
Parent's
interest in custody of her children is a liberty interest which has received
considerable constitutional protection; a parent who is deprived of custody of
his or her child, even though temporarily, suffers thereby grievous loss and
such loss deserves extensive due process protection. In the Interest of Cooper,
621 P 2d 437; 5 Kansas App Div 2d 584, (1980).
The Due Process Clause of the Fourteenth Amendment requires that severance in
the parent-child relationship caused by the state occur only with rigorous
protections for individual liberty interests at stake. Bell v. City of
Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).
Father enjoys
the right to associate with his children which is guaranteed by this amendment
(First) as incorporated in Amendment 14, or which is embodied in the concept of
"liberty" as that word is used in the Due Process Clause of the 14th
Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt,
356 F Supp 620; DC, WI (1973).
The United States Supreme Court
noted that a parent's right to "the companionship, care, custody and
management of his or her children" is an interest "far more
precious" than any property right. May v. Anderson, 345 US 528, 533; 73 S
Ct 840, 843, (1952).
A parent's right to care and
companionship of his or her children are so fundamental, as to be guaranteed
protection under the First, Ninth, and Fourteenth Amendments of the United
States Constitution.In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at
489.
The Court
stressed, "the parent-child relationship is an important interest that
undeniably warrants deference and, absent a powerful countervailing interest,
protection." A parent's interest in the companionship, care, custody and
management of his or her children rises to a constitutionally secured right,
given the centrality of family life as the focus for personal meaning and
responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).
Parent's rights
have been recognized as being "essential to the orderly pursuit of
happiness by free man." Meyer v. Nebraska, 262 or 426 US 390 ; 43 S
Ct 625, (1923).
The U.S. Supreme Court implied that
"a (once) married father who is separated or divorced from a mother and is
no longer living with his child" could not constitutionally be treated
differently from a currently married father living with his child.
Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255-56, (1978).
The U.S. Court
of Appeals for the 9th Circuit (California) held that the parent-child
relationship is a constitutionally protected liberty interest. (See;
Declaration of Independence --life, liberty and the pursuit of happiness and
the 14th Amendment of the United States Constitution -- No state can deprive
any person of life, liberty or property without due process of law nor deny any
person the equal protection of the laws.) Kelson v. Springfield, 767 F 2d
651; US Ct App 9th Cir, (1985).
The parent-child
relationship is a liberty interest protected by the Due Process Clause of the
14thAmendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242-45; US Ct App 7th
Cir WI, (1985).
No bond is more
precious and none should be more zealously protected by the law as the bond
between parent and child." Carson v. Elrod, 411 F Supp 645,
649; DC E.D. VA (1976).
A parent's
right to the preservation of his relationship with his child derives from the
fact that the parent's achievement of a rich and rewarding life is likely to
depend significantly on his ability to participate in the rearing of his
children. A child's corresponding right to protection from interference in the
relationship derives from the psychic importance to him of being raised by a
loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582,
595-599; US Ct App (1983).
A parent's
right to the custody of his or her children is an element of
"liberty" guaranteed by the 5th Amendment and the 14th Amendment of
the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App Div
(1983).
Reality of
private biases and possible injury they might inflict were impermissible
considerations under the Equal Protection Clause of the 14th Amendment.
Palmore v. Sidoti, 104 S Ct 1879; 466 US 429.
Legislative
classifications which distributes benefits and burdens on the basis of gender
carry the inherent risk of reinforcing stereotypes about the proper place of
women and their need for special protection; thus, even statutes purportedly
designed to compensate for and ameliorate the effects of past discrimination
against women must be carefully tailored. the state cannot be permitted to
classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 4340 US 268 , (1979).
The United
States Supreme Court held that the "old notion" that "generally
it is the man's primary responsibility to provide a home and its
essentials" can no longer justify a statute that discriminates on the
basis of gender. No longer is the female destined solely for the home and the
rearing of the family, and only the male for the marketplace and the world of
ideas. Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).
Judges must maintain a high standard of judicial performance with particular
emphasis uponconducting litigation with scrupulous fairness and impartiality.
28 USCA § 2411;
Pfizer v. Lord, 456 F 2d
532; cert denied 92 S Ct 2411; US Ct App MN, (1972).
State Judges,
as well as federal, have the responsibility to respect and protect persons from
violations of federal constitutional rights.Gross v. State of Illinois, 312 F
2d 257; (1963).
The
Constitution also protects "the individual interest in avoiding disclosure
of personal matters." Federal Courts (and State Courts), under Griswold
can protect, under the "life, liberty and pursuit of happiness"
phrase of the Declaration of Independence, the right of a man to enjoy the mutual
care, company, love and affection of his children, and this cannot be taken
away from him without due process of law. There is a family right to privacy
which the state cannot invade or it becomes actionable for civil rights
damages. Griswold v. Connecticut, 381 US 479, (1965).
The right of a parent not to be deprived of parental rights without a showing
of fitness, abandonment or substantial neglect is so fundamental and basic as
to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution,
Article 1 § 1. In re U.P., 648 P 2d 1364;Utah, (1982).
The rights of parents to
parent-child relationships are recognized and upheld. Fantony v. Fantony, 122 A
2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982).
State's power to legislate,
adjudicate and administer all aspects of family law, including determinations
of custodial; and visitation rights, is subject to scrutiny by federal
judiciary within reach of due process and/or equal protection clauses of 14th
Amendment...Fourteenth Amendment applied to states through specific rights
contained in the first eight amendments of the Constitution which declares
fundamental personal rights...Fourteenth Amendment encompasses and applied to
states those preexisting fundamental rights recognized by the Ninth Amendment.
The Ninth Amendment acknowledged the prior existence of fundamental rights with
it: "The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." The United
States Supreme Court in a long line of decisions, has recognized that matters
involving marriage, procreation, and the parent-child relationship are among
those fundamental "liberty" interests protected by the Constitution.
Thus, the decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147,
(1973), was recently described by the Supreme Court as founded on the
"Constitutional underpinning of ... a recognition that the
"liberty" protected by the Due Process Clause of the 14th Amendment includes
not only the freedoms explicitly mentioned in the Bill of Rights, but also a
freedom of personal choice in certain matters of marriage and family
life."
The non-custodial divorced parent has no way to implement the constitutionally
protected right to maintain a parental relationship with his child except
through visitation. To acknowledge the protected status of the relationship as
the majority does, and yet deny protection under Title 42 USC § 1983, to
visitation, which is the exclusive means of effecting that right, is to negate
the right completely.
Wise v. Bravo, 666 F 2d 1328, (1981).