Fundamental, but not fundamental enough: Missouri's balancing test in the area of parental rights.

• Author: Walsch, Nichole

Weigand v. Edwards (1)

1. INTRODUCTION

   Until 2009, Missouri Revised Statute section 452.455.4 required a parent with child support arrears of more than $10,000 to post bond in the amount of the past due child support or reasonable legal fees of the custodial parent before modifying a previous custody order. (2) Due to questions about its constitutionality, it was recently repealed by the Missouri General Assembly. (3) Shortly before the repeal became effective, the Supreme Court of Missouri, in Weigand v. Edwards, determined that application of the statute was constitutional. (4) The statute's repeal nearly makes the decision in Weigand moot and makes one question why the court chose to hand down a decision at all. Nonetheless, Weigand is important because the court clarified its approach to due process challenges in the area of child custody disputes and explained the current test for determining whether there has been a violation of the open courts provision of the Missouri Constitution. (5)

   In Weigand, the petitioner argued that the statute infringed on his due process and equal protection rights to the care, custody and control of his child and that it violated the open courts provision of the Missouri Constitution. (6) This Note argues that the "balancing-of-interests" test applied by the Supreme Court of Missouri does not give parental rights the heightened scrutiny they deserve. In addition, the balancing test is problematic because it is extremely subjective and leaves the decision of constitutionality entirely up to judicial discretion. This Note also suggests that the court failed to give full weight to the procedural nature of the statute in holding that the statute did not violate the state constitution's open courts provision. The procedural, rather than substantive, nature of a statute is a factor that normally has considerable weight in open court challenges. Instead, the Supreme Court of Missouri applied a reasonableness standard that weakens the protection provided by the open courts provision found in Article I, section 14 of the Missouri Constitution.

   This Note concludes that the court should have applied strict scrutiny, or at least a form of heightened scrutiny, to the due process and equal protection claims and probably should have struck down the statute because it was not narrowly tailored to achieve the state's interest. Also, the court should have found that the statute was arbitrary and unreasonable because it was mainly procedural in nature and therefore violated the open courts provision.

2. FACTS AND HOLDING

   For several years, Carolyn Weigand was married to the petitioner, Jeffrey Edwards. (7) They had a child together in 1995 while they were married, but their marriage dissolved in 1998. (8) The court awarded primary physical and legal custody of the child to Ms. Weigand at a hearing at which Mr. Edwards failed to appear. (9) Despite his default, the court awarded Mr. Edwards temporary custody and visitation rights. (10) Mr. Edwards also was ordered to pay $455.70 in monthly child support. (11)

   Mr. Edwards failed to comply with the child support order, and in 2000 the division of child support enforcement instigated an action to determine the amount of his arrearage. (12) It is unclear from the court's opinion whether Mr. Edwards paid any of the ordered child support. In 2003, Ms. Weigand filed a motion to amend the custody agreement, and Mr. Edwards failed to appear at the hearing held in January 2004. (13) The court granted Ms. Weigand sole custody of the child and ordered that Mr. Edwards was not to have any custody or visitation. (14) The child support award was not changed at that time. (15)

   Several years later, however, Mr. Edwards filed a motion to modify the 2004 custody order. (16) He requested that the original custody agreement be reinstated, arguing that circumstances had changed and that it was now in the child's best interest for him to have custody and visitation. (17) Ms. Weigand filed a motion to dismiss Mr. Edwards's request for custody modification because he was more than $10,000 behind in his child support. (18) According to Missouri Revised Statute section 452.455.4, an individual who owed more than $10,000 in child support was required to post bond in the amount of child support owed or the cost of reasonable legal fees for the custodial parent before he or she was able to seek a change in the custody order. (19) Mr. Edwards did not dispute the fact that he owed more than $10,000 in child support, but he claimed that the law was unconstitutional because it violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution; the due process provision of Article I, section 10 of the Missouri Constitution; the equal protection provision of Article I, section 2 of the Missouri Constitution; and Article I, section 14 of the Missouri Constitution, which guarantees access to the courts. (20)

   The trial court was not receptive to Mr. Edwards's constitutional challenge and granted Ms. Weigand's request for dismissal. (21) The Supreme Court of Missouri had exclusive appellate jurisdiction over the case because Mr. Edwards challenged the constitutional validity of the statute. (22) In his appeal to the court, Mr. Edwards argued that section 452.455.4 was unconstitutional because it violated his rights to due process and equal protection by denying him the fundamental right to have a relationship with his child. (23) Mr. Edwards contended that the statute could not withstand the strict scrutiny review that is required when a fundamental right is at stake. (24) In addition to the due process and equal protection violations, he also argued that section 452.455.4 deprived him of his right to access the courts of Missouri, which is guaranteed by the Missouri Constitution. (25) Edwards claimed that his right to seek modification of the custody order was found in Article I, section 14 of the Missouri Constitution, which guarantees "[t]hat the courts of justice shall be open to every person." (26)

   The Supreme Court of Missouri determined that the due process and equal protection challenges against section 452.455.4 should be analyzed under a "balancing-of-interests" test. (27) The court then held that the statute did not violate Mr. Edwards's rights to due process and equal protection and that it did not arbitrarily or unreasonably deprive him of access to the courts. (28)

3. LEGAL BACKGROUND

   1. Due Process and Equal Protection

      The Supreme Court of the United States has long acknowledged that parents have a fundamental interest in the care, custody and control of their children. (29) In fact, the Supreme Court has noted that this is perhaps one of the oldest fundamental rights that it recognizes. (30) In the 1920s the Court acknowledged in Meyer v. Nebraska and Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary that parents have the due process right to control the upbringing and education of their children. (31) Since that time, the Court has made numerous decisions that confirm this fundamental right and recognize that a parent's right to "the care, custody and control of" his or her children is clearly protected by the United States Constitution. (32) As with many substantive due process claims, however, it is unsettled what level of scrutiny courts will apply when a statute infringes the constitutional right.

      In Meyer and Pierce, the Court examined state statutes that restricted the ability of parents to make certain decisions regarding their children's education.33 The Court considered whether the statutes were arbitrary or if the legislature had a reasonable basis for the restriction. (34) The Court used this minimal test because the decisions were made prior to the development of the modern three-tiered analysis that is applied to due process claims. (35) In 1972, the Court reaffirmed the constitutional right of parents to control the education and upbringing of their children and suggested that heightened scrutiny is required for statutes that infringe on that right. (36) In Wisconsin v. Yoder, the Court examined a statute that allegedly violated both parental rights and the free exercise of religion. (37) In that situation, the Court recognized that "more than ... a 'reasonable relation to some purpose within the competency of the State' [wa]s required to" impede a parent's ability to control the upbringing of his or her child(ren). (38) However, the parent's rights, even under the Free Exercise Clause, could be limited if parental decisions would "jeopardize the health or safety of the child" or create a significant social burden. (39) The same year, the Court recognized in Stanley v. Illinois that the right of a parent wed or unwed--in the care, custody and control of his or her child(ren) is fundamental and that such a right requires more respect than liberties that arise merely from economic arrangements. (40) The Court held that the unwed father in Stanley was entitled to a hearing before his parental rights were terminated, and while it did not address what level of scrutiny applied to the substantive due process claim, the Court concluded that the father's rights demanded protection "absent a powerful countervailing interest." (41)

      In 1978, the Supreme Court of the United States decided Zablocki v. Redhail, a case that contained significant similarities to the instant case. (42) Both dealt with child support enforcement techniques that the parents in arrears claimed violated their fundamental constitutional rights. In Zablocki, the Court invalidated a Wisconsin statute that prohibited individuals from marrying if they were behind in child support or if their child was on public assistance. (43) The Court found that every law regulating marriage does not have to pass "rigorous scrutiny." (44) "[R]easonable regulations that do not significantly interfere with" the right to marry can be...