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 14th amendment to the constitution, the 5th amendment to the constitution and case law including Supreme Court rulings dating back to the past century.
“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 14th 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.
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.
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.
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