Notes by family_rights_wv on PARENTAL RIGHTS AND DUE PROCESS written by Donald C. Hubin
:
"While controversies surround the issue of procedures and standards of evidence
for the complete and permanent termination of parental rights, a useful summary
of the current reasoning of the Supreme Court as stated in Santosky v. Kramer,
455 U.S. 745 (1982) is provided by Josephine Fiore." http://laws.findlaw.com/us/455/745.html
Santosky v. Kramer
"In Mathews v. Eldridge, the United States Supreme Court developed a
three factor test to determine whether due process has been satisfied." http://laws.findlaw.com/us/424/319.html
Mathews v. Eldridge
R=Right
"a fundamental right protected by First, Fifth, Ninth and Fourteenth Amendments”.
1
“far more precious than property rights” 2
and that the Supreme Court characterizes R as an “essential” right 3 that
protects a substantial interest that “undeniably warrants deference, and,
absent a powerful countervailing interest, protection”.4
Imagine 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”5 and that, because of this, “there must be some compelling
justification for state interference” 6 with R.
1 Doe v. Irwin, 441 F. Supp. 1247 1251 (D. Mich. 1977).
2 May v. Anderson, 345 U.S. 528, 533 (1953).
3 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
4 Stanley v. Illinois, 405 U.S. 645 (1971).
5 Irwin 441 F. Supp. At 1251.
6 Id. At 1249.
http://www.cohums.ohio-state.edu/philo/people/faculty/hubin.1/Research/PRDP.PDF
PUBLISHED IN
THE JOURNAL OF LAW AND FAMILY STUDIES
VOLUME 1, NUMBER 2 (1999), pp. 123–150
UNIVERSITY OF UTAH SCHOOL OF LAW
PARENTAL RIGHTS AND DUE PROCESS
Donald C. Hubin
Department of Philosophy
The Ohio State University
Columbus, OH 43210
614-292-7914 [email protected] ă 1999 by Donald C. Hubin
VOLUME 1 NUMBER 2.
Copyright ă 1999 by Donald C. Hubin
Copyright Notice: This work is copyrighted. Please contact the author for
permission to reproduce this work.
Permission will be quickly and freely granted for non-commercial, non-profit
use by any organization promoting
shared parenting or other policies to ensure children’s rights to a full
relationship with both parents upon divorce.
ABSTRACT FOR “PARENTAL RIGHTS AND DUE PROCESS”
The U.S. Supreme Court regards parental rights as fundamental. Such a status
should subject any legal procedure that directly and substantively interferes
with the exercise of parental rights to strict scrutiny. On the contrary,
though, despite their status as fundamental constitutional rights, parental
rights are routinely suspended or revoked as a result of procedures that
fail to meet even minimal standards of procedural and substantive due process.
This routine and cavalier deprivation of parental rights takes place in the
context of divorce where, during the pendency of litigation, one parent is
routinely deprived of significant parental rights without any demonstration
that a state interest exists—much less that there is a compelling state interest
that cannot be achieved in any less restrictive way. In marked contrast to
our current practice, treating parental rights as fundamental rights requires
a presumption of joint legal and physical custody upon divorce and during
the pendency of divorce litigation. The presumption may be overcome, but
only by clear and convincing evidence that such an arrangement is harmful
to the children...
Copyright ă 1999 by Donald C. Hubin
Parental Rights and Due Process
DONALD C. HUBIN * *
Forget, for a moment, the title of this paper. Imagine that it is titled,
“Due Process and the Deprivation of Rights”. Now, consider an unspecified
right, R, which is “a fundamental right protected by First, Fifth, Ninth
and Fourteenth Amendments”. 1 Suppose that this right is regarded as
“far more precious than
property rights” 2 and that the Supreme Court characterizes R as an “essential”
right 3 that protects a substantial interest that “undeniably warrants deference,
and, absent a powerful countervailing interest, protection”.4 Imagine 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”5
and that, because of this, “there must be some compelling justification for
state interference” 6 with R.
These aspects of the nature of R stipulated, imagine further that our legal
system actively functions to suspend or deny this right literally tens of
thousands of times a year—that this is done openly and under color of state
law. Suppose that the suspension, and sometimes even the denial, of R is
done on the basis of little or no evidence of any state interest whatsoever.
Imagine that, in these cases of suspension or denial, there is no demonstration,
and often no allegation, that R has been, or is likely to be, abused or that
the retention of R by the individual in question would be harmful to the
legitimate interests of any other person.
Suppose, further, that even the temporary suspension of this right shifted
the burden of proof onto the former right-holder to demonstrate that the
suspension should not become a permanent denial. If there were such a right
and it were treated in such a cavalier way, what should our reaction be?
Outrage? Indeed!
But is there a right that can be substituted for R and make all of the above
suppositions true? Absolutely. But it is neither the right to property (and
not simply because it cannot be more precious than itself) nor the right
to liberty. Though there are often legal threats to these rights, on the
whole they receive
* I wish to express my gratitude to those who have helped me with this project:
Ronald K. Henry who generously supplied me with invaluable research material;
Ned Foley, Michael Hill, Vittorio Hosle, Wolfgang Hirczy, Kathleen Cook and
Daniel Farrell for helpful comments on earlier drafts; and Julia Carpenter-Hubin
for both helpful comments and unflagging encouragement. I also acknowledge
the influence of those persons who, though absent goodwill, provoked my interest
in these issues.
1 Doe v. Irwin, 441 F. Supp. 1247 1251 (D. Mich. 1977).
2 May v. Anderson, 345 U.S. 528, 533 (1953).
3 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
4 Stanley v. Illinois, 405 U.S. 645 (1971).
5 Irwin 441 F. Supp. At 1251.
6 Id. At 1249.
Copyright ă 1999 by Donald C. Hubin
124 DONALD C. HUBIN
significant protection from the courts. There is only one right that has
the importance described above and receives so little protection. It is the
right of custody of our children—the cluster of rights labeled ‘parental
rights’. 7 The above might strike one as flagrant hyperbole. Termination
of parental rights is not done in the casual way I have described.8 The
state is required, a critic might point out, to show by “clear and convincing
evidence” that a compelling state interest is at stake before termination
of parental rights.9
And so it is, sometimes. But there is a context in which parental rights
are suspended with little or absolutely no evidence of the involvement of
any state interest whatsoever. That context is divorce. While this context
apparently affects our reaction to the casual procedures by which we suspend
or terminate parental rights (else one would expect a hue and cry over this
practice), it does not weaken the argument against such procedures. Divorce
proceedings routinely involve unconscionable violations of minimal due process
protections of fundamental rights and liberties. 10
I argue for this thesis below. I begin by discussing some features of parental
rights and of the state interest in the custody of children. Next, I examine
the sorts of due process considerations that have arisen in the context of
termination of parental rights outside the divorce context. I then describe
a procedure commonly used during divorce proceedings to determine custody
during the period of the divorce litigation (pendente lite). The arrangements
during the pendency of the litigation are extremely important because they
establish a status quo which influences what it is reasonable to do with
respect to parent/child arrangements in the final divorce decree and, even
more importantly, because of the direct effect they appear to have on the
long-term parent child relationship. (A full explanation of the reasons for
focusing on the procedures for determining temporary custody, as opposed
to permanent custody, will be offered later.) In the penultimate section,
I argue directly for the thesis that this procedure involves the temporary
denial of fundamental rights without due process of law. Finally, I turn
from the abstract discussion of the nature and basis of legal rights to discuss
the real interests protected by these rights.
__________________________________
7 Francis McCarthy (1988) has challenged the claim that parental rights are
fundamental rights in the constitutional sense of the term. For present purposes,
I shall accept the Supreme Court doctrine that they are. Were McCarthy’s
challenge successful, the state would need to show only that its procedures
for denying parental rights had a rational basis, not that they were necessary
to serve a compelling state interest. I do not believe that even the weaker
test can be met, but I do not argue that here.
8 At least, it is not supposed to be done in the casual way I have described.
Despite the legal procedures that are supposed to protect against unwarranted
state interference in the parent/child relationship, the actual practice
seems to involve too much interference, too casually monitored (Wald, 1976;
and Becharov, 1985).
9 Santosky v. Kramer, 102 S. Ct. 1388 (1982).
10 Lee Bombria et al. (1988) asserts this view. Ellen Canacakos (1981) and
Holly L. Robinson (1985) argue for it extensively..
Copyright ă 1999 by Donald C. Hubin
Parental Rights and Due Process 125
The issue of parental rights and due process is not sterile or pedantic;
parental rights protect the vital interests of parents and children alike.
Our cavalier legal treatment of them is inexcusable for the real human devastation
it causes.
SOME ASPECTS OF PARENTAL RIGHTS AND THE STATE’S INTEREST IN THE CUSTODY OF
CHILDREN
Parental Rights: ‘Custody’ is a misleading term, for it suggests a unitary
thing when, in fact, it refers to a set of rights and responsibilities. In
this respect, it is like ‘property’. 11 Both are convenient labels for a
cluster of rights that have traditionally been bundled together by social
practice and in our thought. There is a great danger of committing “false
dichotomy fallacies” when we employ such labels without sufficient care.
With respect to property, for example, we often think that, absent some special
arrangements, a person must either own an item in the strong sense that we
own personal property, or the item must be one over which the person has
no property rights. This is, of course, mistaken, but it is an understandable
mistake given our tendency to think of owning property as an all-or-nothing
situation. We must be wary of these conventional categories—especially when
our task is to challenge the conventions themselves. We must ask ourselves
whether the items in the set of rights in question are inseparable, whether
the justification for each item is the same, and so forth. For the most part,
I shall talk about parental rights, instead of custody, to emphasize this.
I know of no exhaustive listing of the set of parental rights we typically
associate with having full custody of children. The following rights, only
some of which are relevant to our present concern, are commonly assumed to
be included in the set:
· the right to physical possession of the child;
· the right to inculcate in the child one’s moral and ethical standards,
including the right to discipline the child;
· the right to control and manage a minor child’s earnings and property;
· the right to have the child bear the parent’s name;
· the right to prevent adoption of the child without the parents’ consent;
12
· the right to make decisions concerning the medical treatment, education,
religious training and other activities of the minor child;
