Custody, the Constitution and Your Child

Disputes over the care and raising of a child can quickly turn into a nightmare. Who has custody? How much parenting time, and when? Other family members? Who gets to decide where the child goes to school, does he or she play sports, join ballet?

Does the Constitution provide for parental and familial rights? The answer, according to case law, is yes. Parents have the right to care for, nurture, raise and guide their children. In the United States, the government and courts view parental rights as a part of liberty, that is, as a fundamental right that must be respected and followed to the greatest extent possible. In other words, only in extreme cases such as abuse or neglect, or imminent danger, may another authority interfere with a parent’s rights and liberty interests regarding the custody and care of their child.

This liberty interest is based on a tripod consisting of the 14^th amendment to the constitution, the 5^th amendment to the constitution and case law including Supreme Court rulings dating back to the past century.

1. The 14^th Amendment to the Constitution. The standard for parental rights is based, in large part, on the 14^th Amendment to the United States Constitution, which reads in part:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law…”. The Supreme Court of the United States has consistently ruled that the 14^th amendment’s wording of “liberty” and “due process” combine to guarantee parents the liberty, and therefore, the right,  of raising their children, and that the state and others cannot infringe on that right without affording the due process of the law.

2. The 5^th Amendment to the Constitution. The 5^th Amendment to the Constitution again guarantees an individual’s rights, stating in part that no one may be “…deprived of life, liberty, or property, without due process of law…”. Judges have long ruled that this fundamental right of liberty applies to parents having the right to raise, care for, and educate their children.
3. Case Law. Parents’ rights to raise their children and issues of care and custody of their children under the law is considered a fundamental part of liberty. Due process is essential for protecting that liberty. The United States Supreme Court recognized this constitutional right of parents regarding their children in 1923 with a landmark case Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), where it stated that parents enjoyed the “liberty”, protected by “due process”, to raise their children and to “establish a home and bring up children” and further to “control the education of their own.”

In another policy-setting case, Pierce v. Society of Sisters, the Supreme Court again affirmed that the constitution grants parents the right to exercise custody, care and raising of their children. The Justices ruled that this right extends to parent’s rights to choose their children’s education. In Pierce, the State of Oregon had passed a law requiring all children between the ages of 8 and 16 to attend public school, with only limited exemptions. The law was aimed at eliminating most private and parochial schools.  The court, in its opinion stated that: “The Oregon Compulsory Education Act (Oreg. Ls., § 5259) which, with certain exemptions, requires every parent, guardian or other person having control of a child between the ages of eight and sixteen years to send him to the public school in the district where he resides; for the period during which the school is held for the current year, is an unreasonable interference with the liberty of the parents and guardians to direct the upbringing of the children, and in that respect violates the Fourteenth Amendment. Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L.Ed. 1070, 45 S. Ct. 571 (1925).

In Prince v. Massachusetts, 321 U.S. 158 (1944). the court took a different turn. It based its opinion on prior rulings, stating that again, “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Pierce v. Society of Sisters, supra. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.” The court then went on to qualify those rights with this statement: “But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. Reynolds v. United States, 98 U. S. 145; Davis v. Beason, 133 U. S. 333. And neither rights of religion nor rights of parenthood are beyond limitation.” Prince v. Massachusetts. In Prince, the court again affirmed parental rights as a basic liberty guaranteed by the constitution, but then qualified those rights by giving the state the ability to regulate and protect the children.

The constitution guarantees parents the rights to custody, care, raising, educating and guiding their children. There is also a long history of Supreme Court cases which have ruled and then upheld parental rights as a basic liberty. While the court did qualify this basic liberty with allowing governments to set rules and boundaries for children, when it did so, it also reaffirmed the constitutional basis for parents’ rights.

4. What if someone is a non-custodial parent? A parent who has not been granted custody of their child still has parental rights, including and most importantly, the right to appeal a court’s decision and the right to petition the court for a custodial review.
5. Does the constitution provide rights to a putative parent? A putative parent is someone who has not been legally shown to be a child’s parent. If a person is not a child’s legal parent, they do not have the constitutionally granted parental rights.
6. Are grandparents included in the constitutional guarantees of parental rights? The short answer is no, a grandparent does not have the same rights as parents. The Supreme Court in Troxel v Granville, 530 US 47, 65 (2000), held that the Fourteenth Amendment’s due process clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. As such, grandparents who wish to have visitation with their grandchild are generally subject to the agreement of the child’s parent absent a statute stating otherwise. In Michigan, we have grandparenting time petition law MCL 722.27b(1). The court will normally side with the child’s parent, not with the child’s grandparent in questions of visitation and custody. In rare cases, a grandparent may present enough evidence to a court to change this presumption, usually including proving the parent to be unfit, or that the child may be at substantial risk of harm by withholding the visitation and that the parent is not acting in the best interests of the child, or that there was an established custodial-type of relationship of the child with the grandparent.

If you have a question about your rights as a parent, as a grandparent seeking visitation time, or as a biological non-custodial parent, you should contact an experienced attorney who can answer your questions and help you determine your rights under the constitution. At Van Den Heuvel Law Office, our attorneys have many years of experience and expertise in Family Law, custody and parenting time. Contact the office to learn more.