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The material presented in this special e-report is for informational purposes only. It is intended to educate the reader on the general constitutional basis of the right of a parent to have a relationship with that parent’s children. It is not intended to constitute and does not constitute legal advice. If the reader has questions regarding the applicability of the information contained herein to a specific legal matter, the reader is encouraged to contact an attorney licensed in the appropriate jurisdiction or an attorney admitted to practice in the jurisdiction on a pro hoc vice basis for a specific case.

Robert J. Frank is attorney licensed in Colorado. Robert J. Frank may be available to appear in an action in a state other than Colorado on a pro hoc vice basis. The standards for admission on a pro hoc vice basis vary from state to state and generally require the association of local counsel and approval of a Court of competent jurisdiction.

Special Report Re: The Constitutional Right to Parent

By Robert J. Frank, esq. ©2007

“The liberty interest at issue in this case — the 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.”

Troxel v. Granville, 530 U.S. 57 (U.S. 2000)

Every father has a constitutional right to be an active and integral part of his children’s lives. This right is protected by the Fourteenth Amendment to the United States Constitution and is a “Fundamental Right” that may be interfered with only in limited circumstances. This Special Report answers the questions most fathers do not know to ask, the answers to which are essential to understanding how to enforce a father’s right to parent. This report answers the following questions:

1) What is a “Fundamental Right?”

2) Is the right of a father to parent his children a “Fundamental Right?”

3) When may a Court or governmental agency limit the right of father to parent his children?

4) Why is this important to my custody or parenting time case?

1) What is a “Fundamental Right?”

The Constitution of the United States does not create rights. Rather, the U.S. Constitution recognizes that human beings have “certain inalienable rights” to which they are entitled which arise as a matter of natural right. The most important of these rights are called “Fundamental Rights.” Fundamental Rights are rights that are so “implicit in the concept of ordered liberty” that “neither liberty nor justice would exist if they were sacrificed.” See Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S. Ct. 149, 152, 82 L. Ed. 288 (1937); McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc). The Supreme Court has recognized that fundamental rights include those guaranteed by the Bill of Rights as well as certain liberty, associational and privacy interests implicit in the due process clause and the penumbra of constitutional rights. See Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267; Paul v. Davis, 424 U.S. 693, 712-13, 96 S. Ct. 1155, 1166, 47 L. Ed. 2d 405 (1976). These special “liberty” interests include “the rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, and to bodily integrity.” Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267.

2) The right of a father to parent is a “Fundamental Right.”

The United States Supreme Court has recognized the right of parents to be and active and integral part of their children’s lives as “perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.” Troxel v. Granville, 530 U.S. 57 (U.S. 2000)

The familial right of association is based on the “concept of liberty in the Fourteenth Amendment.” see Kraft v. Jacka, 872 F.2d 862, 871 (9th Cir. 1989) (basing protection of intimate associational rights on the fourteenth amendment); IDK, Inc. v. Clark County, 836 F.2d 1185, 1192 (9th Cir. 1988) (same); cf. Swank v. Smart, 898 F.2d 1247, 1252 (7th Cir.) (stating intimate associational rights not protected by the first amendment), cert. denied, 112 L. Ed. 2d 113, 111 S. Ct. 147 (1990).

The Fourteenth Amendment embodies three different protections: (1) a procedural due process protection requiring the state to provide individuals with some type of process before depriving them of their life, liberty, or property; (2) a substantive due process protection, which protects individuals from arbitrary acts that deprive them of life, liberty, or property; and (3) an incorporation of specific protections afforded by the Bill of Rights against the states.

Miller v. Campbell County, 945 F.2d 348, 352 (10th Cir. 1991), cert. denied, 117 L. Ed. 2d 419, 112 S. Ct. 1174 (1992). The freedom of intimate association is a substantive due process right, as is its subset, the familial right of association. Shondel v. McDermott, 775 F.2d 859, 865-66 (7th Cir. 1985); see Archuleta, 897 F.2d at 499 n.7 (contrasting procedural due process right at issue in that case). This substantive right is consonant with the right of privacy. See Fleisher v. City of Signal Hill, 829 F.2d 1491, 1499 (9th Cir. 1987) (stating freedom of intimate association “substantially overlaps” right of privacy), cert. denied, 485 U.S. 961, 99 L. Ed. 2d 425, 108 S. Ct. 1225 (1988); Arnold v. Board of Educ., 880 F.2d 305, 312 (11th Cir. 1989) (characterizing right as “familial right to privacy”); see also Hodgson v. Minnesota, 497 U.S. 417, 110 S. Ct. 2926, 2943, 111 L. Ed. 2d 344 (1990)

The Supreme Court recognizes that a father’s relationship with his children is such a right. Justice Marshall, speaking for a unanimous Supreme Court, stated “a [once] married father who is separated or divorced from the mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 434 U.S. 246, 255-56, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) In Armstrong v. Manzo, 380 U.S. 545, 550, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965), the Court took for granted that the interest of a divorced father in the preservation of his visitation rights is a “liberty interest” sufficient to trigger the application of procedural due process doctrine. And in Santosky v. Kramer, 455 U.S. at 749, 753-54, the Court expressly held that the interest of a parent, who has temporarily lost custody of his child, in avoiding elimination of his “rights ever to visit, communicate with, or regain custody of the child” is important enough to entitle him to the procedural protections mandated by the Due Process Clause.

3) When may this “Fundamental Right” be limited by a Court?

A Fundamental right may only be limited in circumstances where the government’s interest in a specific matter of public importance outweighs the individual’s fundamental right, and where the limitation on the fundamental right is as narrow as possible for achievement of an important governmental goal. In classic fourteenth amendment liberty analysis, a determination that a party’s constitutional rights have been violated requires “a balancing [of] liberty interests against the relevant state interests.” Youngberg v. Romeo, 457 U.S. 307, 321, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982). This balancing of interests has been applied in cases involving intimate association rights. See Winston ex rel. Winston v. Children & Youth Servs., 948 F.2d 1380, 1391 (3d Cir. 1991), cert. denied, 119 L. Ed. 2d 225, 112 S. Ct. 2303 (1992); Arnold, 880 F.2d at 313; Franz, 791 F. Supp. at 833; Aristotle P. v. Johnson, 721 F. Supp. 1002, 1010 (N.D. Ill. 1989); Whitcomb v. Jefferson County Dep’t of Social Servs., 685 F. Supp. 745, 747 (D. Colo. 1987).

Perhaps the best example is the government’s interest in investigating and prosecuting child abuse cases. To determine whether a person’s familial association rights have been violated in this factual setting, a court must weigh two factors: the state’s interests in investigating reports of child abuse, and the parent’s interests in his familial right of association. A court initially examines these factors objectively, that is, outside of the facts or subjective positions of the parties. A court may intrude on the fundamental right to parent only where the intrusion makes sense on an objective basis. Preventing a child from being injured or killed objectively is the kind of governmental interest which warrants intrusion into a fundamental right.

However, the court must then determine if the intrusion is reasonable under the circumstances of a given case. See Hewitt v. City of Truth or Consequences, 758 F.2d 1375, 1379 (10th Cir.), cert. denied, 474 U.S. 844, 88 L. Ed. 2d 108, 106 S. Ct. 131 (1985). The court must weigh the individual interests to determine whether the conduct of the governmental actor constituted an undue burden on a parent’s associational rights. See Hodgson, 110 S. Ct. at 2943 (familial privacy interests protected against undue state interference); Roberts, 468 U.S. at 617-18 (“choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State”); Arnold, 880 F.2d at 312 (right protected against “unjustified interference” from the government). If the action of the court or governmental actor constitutes an unreasonable intrusion into the associational right it is not allowed and will not be constitutionally tolerated.

4) Why this information is important to winning a custody case.

Fathers, their lawyers, and the Courts which decide custody matters are so often caught up in the state laws relating to divorce and custody that they fail to appreciate the nature of the fundamental right impacted and appropriate method by which to gage whether the Court has unduly interfered with the fundamental right.

It is absolutely essential that Court’s begin to look at custody matters as questions implicating “fundamental rights” and for attorneys to begin introducing evidence impacting on the reasonableness of the Court’s intrusion into that fundamental right. This requires a new strategy. It requires litigating “Father’s Rights” cases rather than custody cases. This requires:

1) The father to conform his conduct to a standard which makes any governmental interference with the right to parent unreasonable;

2) Father’s attorneys must educate the Court on matters of fundamental rights and the limitations on a Court’s ability to intrude on a relationship protected as a matter of fundamental right; and

3) Father’s attorneys must develop and present evidence which will demonstrate that any interference in the right of a father to have a relationship with his children is so unreasonable as to constitute an abuse of the courts discretion to impact a fundamental right.

This new “Father’s Rights” paradigm will substantially tip a currently uneven playing field back in the father’s favor.

The Law Firm of Robert J. Frank & Associates, LLC.

30 Minute Phone Consultation
(304) 520-0702