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Constitutional Rights and the Expert Opinions Addressing Parental Access and Decision-Making
Frequently, evaluators will offer expert opinions to the court to limit a parent's access to his or her children. Sometimes, evaluators offer expert opinions recommending that a parent's ability to make decisions about his or her child should be removed, often by abdicating to the wishes of the children. Our experience is that many evaluators do not adequately consider the profound constitutional issues involved in such recommendations, and routinely offer opinions about custodial access and decision-making that have little support in the underlying data from which such recommendations and opinions are based. R.E. Emery et al.: A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed System. 6 Psych Science in the Public Interest 1 (2005).
Over the years, we have noted with concern how few custody evaluators have understood these profound constitutional issues, which involve offering expert opinions to a court to reduce or diminish a parent's right to parent his or her child. In this article, we provide a brief overview of the constitutional issues that address parental rights, and discuss ideas that others have put forward about children's rights. B. Bix: Best Interests of the Child. Legal Studies Research Paper Series: Research Paper No. 08-08. University of Minnesota Law School (2008). Available at http://ssrn.com/abstract=1092544; J. Spinak: When Did Lawyers for Children Stop Reading Goldstein, Freud, and Solnit? Lessons from the Twentieth Century on the Best Interests and The Role of the Child Advocate. 41 Fam Law Quarterly 393 (2007); E. Willensen & M. Willemsen: The Best Interest of the Child: A Child's Right to Have Stable Relationships Must Be Central to Custody Decisions. Markkula Center for Applied Ethics (2008). Available at www.scu.edu/ethics/publications/iie/v11n1/custody.html. Our hope is that evaluators and the attorneys and judges who appoint them will reflect on the awesome responsibility that is entailed in offering opinions to the court about curtailing or terminating a parent's right to parent his or her child.
Historical Background
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