Constitutional Rights and the Expert Opinions Addressing Parental Access and Decision-Making

When our country was founded, the American Colonialists claimed independence from Great Britain, declaring in part, that our country would stand for a more perfect union that would provide for its citizens “life, liberty, and the pursuit of happiness.”

The 1787 Constitutional Convention approved of a Constitution that would, among other things, promote the general welfare of its citizens. In 1781, the founders included a Bill of Rights, of which some of the Amendments are presented below. It is important to remember that all American law, including relationships between and among individuals, and between individuals and the government, are informed by the Constitution. S.B. Epstein & F.C. Fontana: Constitutional Rights and the Best Interests of Children: Strange Bedfellows. Paper Presented at the 47th Annual Afcc Conference, Denver, CO (2010). Relevant to our discussion are the following constitutional provisions:

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances;

Amendment IV: The right of the people to be secure in their persons ' shall not be violated.

Amendment V: No person ' shall be deprived of their life, liberty, or property without due process of law;

Amendment XIV: All persons ' are citizens of the United States and of the State wherein they reside. No State shall ' deny to any person within its jurisdiction the equal protection of the laws.

Individual rights are not absolute. There are times when the State may infringe upon those rights. In family law, the court is the actor through which the State may infringe upon individual rights. The more important the constitutional right, the higher the burden upon the State to show why it must infringe upon that right. When a fundamental liberty interest is at issue, the State's interest must be extremely compelling and narrowly defined. The State's infringement upon a constitutional right must meet the strictest of scrutiny. Id .

Parenting Decisions and Constitutional Rights

Child custody evaluators must recognize that when they offer expert opinions to the court to limit or in some other way diminish a parent's ability to spend time with his/her child, or to make decisions about his/her child, they are recommending that the court infringe upon a parent's protected constitutional rights.

In a child custody matter, any court solution regarding the allocation of parental responsibility balances several competing constitutional interests. One is that the government has an interest in civil order, and as parens patriae. A second interest is the parents' rights under the Amendments found in the Bill of Rights that are cited earlier in this section. A third interest is the child's rights, as determined through a “best interests” analysis ' these rights are articulated in the same Amendments to the Bill of Rights that are applied to the child's parents.

Parens patriae is Latin for “father of his country.” This term has come to represent the doctrine that the government is the ultimate guardian of its people under a “disability.” Children may be viewed as acting under a “disability,” due to their age. Under parens patriae, in any action in which children are involved, the government retains jurisdiction until the child reaches the age of majority (removal of the disability). A court may change custody, child support, or make other decisions that affect the child's best interests, no matter what the parents have previously decided or the court has previously ruled. Parens patriae may be invoked by the court when parents cannot agree on parenting issues. Id.

When parents separate and ask the court to formally dissolve their marriage, the State has an interest in protecting the children from any harm that may result from the parents' divorce. The court (as an agent of the State) becomes a parent to oversee the best interests of the child. See Palmore v. Sidoti, 466 U.S. 429 (1984). As stated by the Supreme Court in Palmore , “The goal of granting custody based on the best interests of the child is indisputably a substantial government interest of purpose of the Equal Protection Clause.” Id. At 433.

The vast majority of divorces affecting children are resolved by parental agreement, without having the court intervene. When divorcing parents are able to agree upon parenting arrangements, they maintain their constitutional right to parent their children without infringement by the government: “The constitutional rights of a parent are clear: privacy rights and associated travel rights, and the right to raise a child with only minimal and necessary state intrusion.” Epstein & Fontana, Supra note 3 at 4.

The constitutional basis for protection of parental rights has been clearly articulated in many cases. The United States Supreme Court in Myer v. Nebraska, 262 U.S. 390 (1923), held that the liberty interest protected by the Due Process Clause includes the right of parents to establish a home and bring up children, and to control the education of their own. In Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Court explained again that the liberty interests of parents and guardians include the right to direct the upbringing and education of children under their control.

Similar decisions were also articulated by the United States Supreme Court. In Prince v. Massachusetts , 321 U.S. 158 (1944), the Court held that there is a constitutional dimension to the right of parents to direct the upbringing of their children. The Court affirmed that “[I]t is cardinal ' 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.” Id. At 166. More recently, the Supreme Court held in Troxel v. Granville, 530 U.S. 57, 2000), that the “liberty interest ' of parents in the care, custody, and control of their children ' is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id. At 66. In summarizing the Court's decisions from Myers through Troxel, the Supreme Court declared: “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.” Id. At 66.

It is only when parents are unable to resolve their parenting issues and bring their conflict to the attention of the court that the court assumes “parens patriae“:

Unless fit parents disagree, the courts have no jurisdiction to become involved with a fit parent's constitutional right to direct the upbringing of the child, and override that paramount parental privilege. However, when parents cannot agree, such as when a family experiences a divorce and emotions run high, they turn to the legal system to make determinations regarding their children.

Epstein & Fontana, Supra note 3 at 4.

Troxel represents an interesting potential future change of direction with regard to children's rights. Acknowledging that the Court has yet to describe the nature of children's constitutional interests in preserving their family relationships, Justice Stevens, writing in dissent in Troxel, wrote:

While this court has not yet had occasion to elucidate the nature of a child's liberty interests in preserving established familial or family-type bonds ' it seems to be extremely likely that, to the extent that parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have their interests, and so, too, must their interests be balanced in the equation.

Troxel Supra note 11 at 88.

Justice Stevens talked about the importance of including the voices of the children when their best interests are being determined: “Cases like this do not present a bipolar struggle between the parents and the State over who has the final authority to determine what is in a child's best interests. There is at a minimum a third individual, whose interests are implicated in every case in which the statute applies ' the child. Id. At 86.

Conclusion

What is the take-away from this discussion?

Evaluators need to understand the profoundly important task they undertake when agreeing to conduct an evaluation, the purpose of which is to provide the court with expert opinions that may affect a parent's constitutional liberty interests in parenting his or her child. At the same time, evaluators need to be cognizant of the need to assist the court in understanding the real and potential risks to a child resulting from the parents' conflict over child-related matters they were unable to resolve without the court's intervention.

In addition, once the court is involved and the evaluator's opinion is rendered, we must be mindful of one important question: to what extent are the parents' constitutional rights to raise and parent their children now limited should they ultimately come to an agreement on issues of custodial access and decision-making? Is the combined will of the parents and their ability to now make these decisions abridged by a court's oversight and/or subject to a child's voice? If parents' rights to direct the upbringing of their children are going to be altered by starting the court process, parents need to be made aware of it.

Jonathan Gould, Ph.D, ABPP, a member of this newsletter's Board of Editors, is a board-certified forensic psychologist specializing in family law matters at the Charlotte Psychotherapy & Consultation Group, Charlotte, NC. He can be reached at [email protected]. Allan Mayefsky and Peter Stambleck are partners in the matrimonial and family law firm of Aronson Mayefsky & Sloan.