Parental Rights and the Child's Best Interests: Resolving Conflicts Over Religion, Education and Health Care Choices in Custody Cases
| Publication year | 2022 |
| Pages | 20 |
By Judge Kevin M. Smith
Domestic law and child in need of care attorneys must be aware of the great responsibility they have as members of the bar. This is more than zealously representing clients. Attorneys must advocate for the unalienable constitutional rights that parents' cases always depend on. We sometimes forget this when we present testimony and exhibits that provide the judge the bricks he needs to satisfy statutory factors. This article will consider how these rights are implicated in the right to parent, and specifically how they apply to parental choices in religion, education, and health care decisions.
From a constitutional standpoint, this discussion implicates two amendments. Under the First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Under the 14th Amendment, ".. .nor shall any state deprive any person of life, liberty, or property, without due process of law..."[1]
To effectively ensure clients' parental rights are fully protected, attorneys must be aware how these rights apply in (1) child in need of care parental rights arguments, (2) parental preference for religion and education decisions in family law matters, and (3) religion-based health care decisions. But first, a primer on the unalienable right to parent.
The Unalienable Right to Parent
In Pierce v. Society of Sisters,[2] the U.S. Supreme Court invalidated an Oregon law compelling public school attendance, finding "it unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."[3] The notable aspect of this case is that the parents were not keeping their children out of school entirely; rather, they wanted to enroll the children in private school. While the religion aspect of their educational choice could have been an issue pursuant to the First Amendment, it was not addressed. Instead, the Court based its decision on the parents' 14th Amendment liberty interest. Failure of the state to permit parents to enroll their children in private school was a violation of their due process rights[4]
In Wisconsin v. Yoder,[5] the U.S. Supreme Court struck down a Wisconsin law requiring students to remain in school until sixteen. Amish parents removed their children from school after the completion of eighth grade so the children could begin apprenticeships. They challenged the statute as violating their 14th Amendment liberty interest in raising children. The Court invalidated the law, observing in dicta that "this case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred. The record is to the contrary, and any reliance on that theory would find no support in the evidence."[6] Hence, while the parents' liberty interest in raising their children as they saw fit was the primary issue, the Court made clear that absent evidence that parents' decisions cause actual harm to the children, it was constitutionally prohibited from interfering with such decisions.[7]
In Myers v. Nebraska,[8] the U S. Supreme Court invalidated a Nebraska law prohibiting schools from teaching languages other than English until the student had completed eighth grade. The Court reversed a teacher's conviction for teaching Bible stories in German. The Court found the 14th Amendment's liberty guarantee included the right to "bring up children," which includes the "natural duty of the parent to give his children education suitable to their station in life."[9] This decision paved the way for schools to teach English as a second language in districts with a high concentration of Mexican immigrants, which enabled the parents' schools o f choice to teach fundamental subjects such as math and science in their native languages. Thus, while the issue seemed to be about the legality of the criminal statute used to prosecute the teacher, the constitutional issue was parents having the freedom to choose schools that enhanced their children's ability to learn.[10]
Finally, in Troxel v. Granville,[11] the U. S. Supreme Court upheld a state court decision that affirmed the parent's right to make visitation decisions between the child and other persons, including grandparents. Pursuant to the 14th Amendment liberty interest, courts must assume that parents' decisions not to allow children to see grandparents are in their best interests, which, in this case, is a rebuttable presumption. Only upon a showing that there is an ongoing relationship between the grandparent and child and that continuing the relationship via grandparent visitation is in the child's best interests may a court overrule the parent's decision to not allow visitation. The liberty interest in denying grandparent visitation is therefore not absolute.[12] This case gets into the due process aspect of the 14th Amendment's liberty interest. As long as the parent's due process rights to affirm or overrule his decision to not allow grandparent visitation are respected, a Court's decision one way or the other will be affirmed.
In summation, the right to parent one's children the way he or she deems proper is a guaranteed liberty interest under the 14th Amendment. Parents are entitled to due process of law when the state attempts to interfere with this right. Absent proof that the parent's decision will harm the child, courts do not have the right to interfere with parental decisions.
Child in need of care parental rights arguments
Child in need of care (CINC) cases are, out of necessity, different from run-of-the-mill child custody cases. They involve issues of child abuse and parental neglect, therefore, depending on the stage of a case, standards that differ from those stated above apply. Before analyzing how courts treat the 14th Amendment liberty interest in such cases, we must consider the most extreme example: what it takes to terminate parental rights. It is only after such termination that a parent's liberty interests cease to be relevant.
In Santosky v. Kramer,[13] the U. S. Supreme Court held that "until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship."[14] The Court further found that the preponderance of the evidence standard provided...
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