Archive | Parental Rights

When Ordinary Parenting Practices Can Land You in Court

Law professor David Pimentel has an interesting article detailing the ways in which law and social norms have evolved to the point where perfectly ordinary parenting practices can land you in prison or at least subject you to an expensive lawsuit or prolonged official harrasment [HT: Bryan Caplan and Katherine Mangu-Ward]. As Pimentel points out, this is often a result of vague statutes and regulations that are interpreted by courts and administrative agencies to require extremely overprotective parenting. Pimentel notes that many such overprotective practices are influenced by media sensationalism and have little or no support in the actual data on child safety and some might even harm children more than they benefit them.

I will leave the specific legal issues to those more expert in these matters than I am, such as co-blogger Eugene Volokh. But one example from the text was particularly striking to me, based on personal experience:

Even one generation ago, the norms were different for determining the age at which a child no longer needed a babysitter. The expected minimum age for babysitters has gone up as well, although in the few states that have legislated specific ages, the thresholds vary widely. In Illinois, it is illegal to leave a child under 14 unsupervised for an “unreasonable period of time”; in Maryland, in contrast, a 13-year-old is considered old enough not only to care for himself, but to babysit infants. The days when 11- and 12-year-old neighborhood kids were considered competent babysitters appear to be long gone. This development is all the more marked considering that mobile phones have created a virtually instant line of communication between the sitter and the parents, something unheard of in earlier eras, when younger sitters were considered acceptable.

I worked as a babysitter when I was twelve, back [...]

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Constitutional Right to Moderately Corporally Punish One’s Child

So held the Hawaii Supreme Court, in Hamilton ex rel. Lethem v. Lethem (Haw. Feb. 7, 2012), interpreting the Hawaii Constitution, though in reasoning that could be seen as applicable to the federal Constitution and to other state constitutions. And the court concluded that even a noncustodial parent retains this right “with respect to that child’s conduct during the visitation period.”

Based on this constitutional right, the court concluded that, to warrant the issuance of a domestic restraining order based on alleged child abuse, there must be (1) a finding that “the parent’s discipline is [not] reasonably related to the purpose of safeguarding or promoting the welfare of the minor,” (2) taking into account “factors such as [a] the nature of the misbehavior, [b] the child’s age and size, and [c] the nature and propriety of the force used.”

The court left it for a lower court to apply this standard to the facts of the case. Here, though, are the facts as alleged by the child (a 15-year-old girl), which led to the issuance of a restraining order against the father: [...]

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Adoption Over Biological Father’s Objection Approved, Because of Risk That Baby Will Be “Honor Killed”

The case is In the Matter of Q (A Child) (Eng. & Wales Ct. App. Dec. 21, 2011); The Independent (UK) reports:

A Muslim man who had a baby with an unmarried woman has been told that his daughter must remain with an adopted family because there is too great a risk that his love child could become the victim of a so-called “honour killing”.

Three senior judges today ruled that a “desire to preserve the family’s honour” among the mother’s relatives meant placing the child with the father was simply too dangerous…. The father had tried to challenge that decision but lost his case….

The child, who is called “baby Q” in court documents, was conceived towards the end of 2009. Her father was already married to another woman who lived outside the country at the time. The man began an affair with a Muslim woman from within his own community and the pregnancy was unplanned. When the mother -– referred to as “M” in court documents — discovered she was pregnant she became “terrified of her family’s reaction”…. The court heard how police enquiries established that had M’s father found out about the pregnancy “he would consider himself honour bound to kill the child”, his daughter and even his wife….

Here’s an excerpt from the opinion:

The judge’s findings about the risk of physical harm to the child and members of her family are very important. It is a topic to which she returned regularly during the judgment. She found that there were no physical risks if Q were to be adopted by Mr and Mrs A; in contrast, although she could not quantify it, she found that there would be “a very significant risk” if Q were to live with F and W. She did not

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An Interesting Parental Rights / Grandparent Visitation / Stepparent Adoption Case

The case is In re Adoption of J.P. (Ark. Dec. 15, 2011), and it involves both a conflict between a father and a deceased mother’s parents (and grandparent), and a challenge to the adoption by the father’s new wife (the child’s godmother, as it happens). The Arkansas Supreme Court indirectly relies on the father’s constitutional parental rights to overturn a lower court award of visitation to the grandparents and great-grandmother, who had been closely involved with the child’s upbringing but who were now less involved in the child’s life because of a rift with the father. The court concludes that the father’s rights aren’t absolute, and that a sufficient showing of harm to the child could justify granting visitation rights to the grandparents and great-grandmother, but that no such showing was made here.

But the court refuses to allow the new wife (and godmother) to adopt the child, for reasons related to the rift with the grandparents and great-grandmother:

Before an adoption petition can be granted, the circuit court must find from clear and convincing evidence that the adoption is in the best interest of the child…. Here, the circuit court found, in pertinent part:

Although Derek and Andrea testified that it was coincidence, the restriction of [Doris]’s and [Bertie]’s contact with [J.P.] began when Derek and Andrea started dating. From an observation of Andrea as a witness, the Court finds Andrea’s attitude toward [J.P.] to be possessive and exclusive of the maternal family. The Court finds that an adoption of [J.P.] by Andrea would not be conducive to fostering a relationship between [J.P.] and his maternal family. A hindrance or loss of a relationship with his maternal family would not be in the best interest of [J.P.]

Considering all the best interest factors, the Court finds that the

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Should the Constitution Be Read as Protecting Parental Rights?

That’s a question that some readers asked on another thread, so I thought I’d pass along these excerpts from Troxel v. Granville (2000) on the subject. First, here’s an excerpt from Justice O’Connor’s plurality opinion:

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”

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. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their

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17-Year-Olds in Michigan Have Right to Leave Parents’ Home

That seems to be Michigan law, at least according to Reardon v. Midland Community Schools (E.D. Mich. Sept. 2, 2011):

First, some brief attention needs to be given to Michigan law governing the obligation of parents to provide care and support to their children until the age of eighteen on the one hand, and yet, on the other hand, providing children the autonomous right to leave their parents’ home at the age of seventeen. See Mich. Comp. Laws §§ 712A.2(a)(2) & (3), 722.3, 722.151. Pursuant to Michigan Compiled Laws § 722.151, “[n]o person shall knowingly and wilfully [sic] aid or abet a child under the age of 17 years to violate an order of a juvenile court or knowingly and wilfully conceal or harbor juvenile runaways who have taken flight from the custody of the court, their parents or legal guardian.” Moreover, Michigan probate courts have jurisdiction to compel a juvenile who has deserted her home to return, at least until the juvenile reaches the age of seventeen. Mich. Comp. Laws § 712A.2(a)(2) & (3).

On the other hand, although Michigan law terminates the courts’ jurisdiction over runaway children at seventeen, it also provides that parents still have an obligation to support their children until they reach the age of eighteen. Under Michigan Compiled Laws § 722.3, “parents are jointly and severally obligated to support” their minor children, and Michigan courts may order parents to continue to support their children after they reach the age of majority. In Michigan, the age of majority is eighteen. Mich. Comp. Laws § 722.52. Absent an adoption, a biological parent’s obligation to support his or her children remains with the parent even if parental rights have been terminated. See Evink v. Evink, 542 N.W.2d 328, 329–30 (Mich. Ct. App. 1995). Whether these

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Court Tentatively Decides That State Law Preempts Proposed San Francisco Ban on Circumcision of Boys

California Business & Professions Code 460(b) reserves the regulation of medical procedures to the state, and preempts contrary local rules:

No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

(1) This subdivision shall not be construed to prohibit the enforcement of a local ordinance in effect prior to January 1, 2010, related to any act or procedure that falls within the professionally recognized scope of practice of a healing arts professional licensed under Division 2 (commencing with Section 500).

(2) This subdivision shall not be construed to prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, or reasonable health and safety requirements for establishments or businesses of a healing arts professional licensed under Division 2 (commencing with Section 500).

This appears to preempt the proposed San Francisco ban on circumcision of boys, at least as applied to procedures conducted by doctors (as opposed to mohels who don’t have a medical license). And a California judge’s tentative ruling released yesterday agreed with this argument (the final ruling is expected at some point after oral argument today):

The Court finds that the proposed ballot Initiative is expressly preempted by California Business and Professions §460(b). The evidence presented is overwhelmingly persuasive that circumcision is a widely practiced medical procedure. California Business and Professions Code §460 (b) applies to medical services provided by a wide range of health care professionals. The statute speaks directly to the issue of local regulation of medical procedures and leaves no room for localities to regulate in this area. In fact, the

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Liberty and Parental Rights

Some comments on recent posts have suggested that libertarians should support a broad notion of parental rights. I haven’t written at any length on parental rights (except as to the special case parental free speech rights), and my thinking on this is far from definite; and of course I surely can’t speak for libertarians generally. But as somehow who is in many matters a presumptive libertarian, I thought I’d say a bit about this. Note that I’m speaking in this post about what I think the right rules ought to be, not about what we should understand our Constitution to say with regard to this question.

1. To begin with, though parental rights are seen by the law as part of parent’s “liberty,” it’s an unusual sort of liberty. The strongest case for liberty arises when people seek the right to do what they please with their own bodies, labor, and property, and the bodies, labor, and property of consenting adult partners (whether sexual, familial, business, or otherwise). But parental rights are the rights to control someone else’s actions. My child is not me. He is not my property. That I have the right to, say, alter my own body (or hire someone to do it for me) or to choose spiritual healing over traditional medical treatment doesn’t tell us much about whether I should have the right to alter another person’s property, or deny another person medical treatment — even if the other person is my minor child.

2. Moreover, parental rights don’t just involve the government refraining from action (e.g., by not arresting me for false imprisonment when I physically restrain my child, the way it would if I tried to do that for an adult). Rather, they involve the government taking affirmative coercive steps to support [...]

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Early Man and the Law

In Friday’s Ex Parte E.R.G., the Alabama Supreme Court struck down the Alabama grandparent visitation statute, holding that it violated the rights of parents. The decision was a splintered 4-3-2 decision, which reflects the Supreme Court’s splintered decision in Troxel v. Granville (2000) — which held that some such laws are unconstitutional, but didn’t decide whether all such laws are unconstitutional. And the opinion among state courts is likewise splintered. I hope to have a chance to blog about this in the next few days.

But for now, I just wanted to note this passage from Justice Parker’s concurrence (which also contains various assertions about the Christian basis of American law):

I concur specially to write on the origin of the fundamental right of parents to direct the upbringing and care of their children. The main opinion in this case references Troxel v. Granville, 530 U.S. 57 (2000), for the principle that parents have a fundamental right to direct the care and upbringing of their children. This right does not originate with Troxel, however; it has existed for millennia, an integral part of the institution of the family.

I. The family preexisted the state.

The family was the first of all human institutions. One man and one woman came together in covenant before God, and they, with the children God gave them, became the first human social structure. As William Blackstone wrote, “single families … formed the first natural society,” becoming “the first though imperfect rudiments of civil or political society.” 1 William Blackstone, Commentaries on the Law of England *47 (1765). There was no state: no one person had been given civil authority over another, to punish evil and to prevent oppression. Nor was there a church to provide structure and order in the worship of the

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Planned Anti-Circumcision-of-Boys Initiative in Santa Monica

The proposed anti-circumcision initiative follows the text of the San Francisco initiative. According to the Jewish Journal, “To qualify the initiative for inclusion on the ballot in Santa Monica’s next election in November 2012, its proponents will need to collect signatures from 10 percent of the city’s approximately 61,000 registered voters in the next six months. If they obtain signatures from 15 percent of Santa Monica’s voters, the initiative could be put to a vote in a special election.”

Santa Monica is a relatively wealthy enclave of the greater Los Angeles area — not really a suburb, but part of the West Los Angeles core. It is also heavily Democratic (69% D, 29% R), and supposedly almost 5% Jewish. San Francisco is likewise supposedly about 5% Jewish; America as a whole is 2% Jewish, though I’m not sure how the site that I’m citing is gathering its city-level religion statistics. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. [...]

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Proposed San Francisco Circumcision Ban (with No Discussion of Religious Freedom in This Post)

In November, San Francisco voters will vote on an initiative that would generally ban circumcision of boys under age 18, except when “the operation is necessary to the physical health of the [child] because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available, and is performed by a … licensed … medical practitioner.” In determining whether the exception is applicable, “no account shall be taken of the effect on the [child] of any belief on the part of [the child] or any other person that the operation is required as a matter of custom or ritual.”

Would such a ban be constitutional? That’s a surprisingly complex question, and I’d like to break down the answer into two parts: the parental rights question in this post, and the religious freedom question in another post.

As of 2005, about 56% of newborn American boys, and about 31% of American boys in the Western states, were circumcised. (In the Midwest, the fraction was nearly 75%.) Since Jews and Muslims — the two groups that generally circumcise for religious reasons — make up about 3% or so of the population, it seems that over 90% of all circumcisions are not religiously motivated. The fraction might be lower in San Francisco proper (I know of no statistics limited to that city), but I suspect that even in San Francisco, the great majority of circumcisions aren’t religiously motivated.

So the parental rights question, viewed independently of the religious freedom question, is indeed important. And, as we’ll see in the later post, it turns out that, even for religiously motivated circumcisers, the religious freedom claim depends in some measure on the parental rights question.

Is a presumptive constitutional right of parents in play here? Parents, the Supreme Court has held, [...]

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“The Father’s Graphic, Profanity-Laced Death Threats Were Directed at ACS Staff and Hospital Personnel Within Hours of His Son’s Birth”

What a way to enter this world. From In re Leroy R. (N.Y. App. Div., decided today):

Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about August 31, 2010, which, following a hearing pursuant to Family Court Act § 1028, granted the application of respondent father to release the subject child to his custody on condition that the child not be left alone with the respondent mother, and subject to the father demonstrating to the “reasonable satisfaction” of the petitioner agency (ACS [Administration for Children’s Services]) that there are appropriate arrangements in place to ensure that the child will not be left alone with the mother, unanimously reversed, on the law and the facts, and the application denied, without costs.

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Adoption and Foster Parenting by Unmarried Cohabitating Couples Who Have a Sexual Relationship

Arkansas’s Act 1 (passed by a voter initiative, though that didn’t affect the analysis), “an individual is prohibited from adopting or serving as a foster parent if that individual is ‘cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.'” Today’s Arkansas Dep’t of Human Servs. v. Cole, a unanimous decision from the Arkansas Supreme Court, struck down the law. The reasoning went basically as follows:

1. The Arkansas Constitution was interpreted in Jegley v. Picado (2002) as securing a right to privacy, included in which is protection of “private, consensual, noncommercial acts of sexual intimacy between adults.”

2. There is no constitutional right to adopt or to be a foster parent; but even privileges that the government may withdraw for some reasons generally can’t be withdrawn in a way that substantially burdens a constitutional right. Here, telling people that to adopt or to be a foster parent they must give up their constitutional right to sexual intimacy with their chosen partner is a substantial burden on that constitutional right. “[U]nder Act 1 the exercise of one’s fundamental right to engage in private, consensual sexual activity is conditioned on foregoing the privilege of adopting or fostering children. The choice imposed on cohabiting sexual partners, whether heterosexual or homosexual, is dramatic. They must chose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt or foster.”

3. The court didn’t consider the possibility that heterosexual unmarried couples who want to adopt or foster children could avoid this burden by marrying, presumably because the right to privacy also includes a right not to marry.

4. Burdens on the right [...]

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Multiculturalism (of an Important Sort) as an American Constitutional Value

I have a piece on this in National Review Online today (based on a 2008 post). Here are the opening paragraphs:

People talk a lot about “multiculturalism,” whether to praise it or condemn it. But standing alone, the concept is too vague to be supported or opposed. In this respect, it’s much like certain other concepts, such as “equality.” Do you support equality or oppose it? Well, it depends on what exactly is meant by “equality,” doesn’t it?

“Multiculturalism” is similar. Some things that are reasonably labeled “multiculturalism” are mostly bad, and others are mostly good. We can all imagine bad versions of multiculturalism — ones that dramatically undermine the social cohesion necessary to maintain order or defend the nation in war; ones in which many people in a modern economy speak mutually unintelligible languages; ones in which members of some subcultures feel comfortable violently attacking people, whether of their own culture or of others; and so on. But America is also founded on its own sort of multiculturalism, which has usually (though not always) stood us in good stead. Here are four constitutional manifestations of this multiculturalism.

For more, see here. [...]

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Colorado Supreme Court on Parents’ Getting Back Custody of Children After Voluntarily Appointing Temporary Guardians

A very interesting case handed down Monday, In the Matter of D.I.S. and Sidman v. Sidman (4-3 vote). Here’s the key legal issue, and the holding:

Reviewing an unpublished opinion of the court of appeals, we address whether, in seeking to terminate a guardianship established by parental consent, fit parents may invoke the constitutional presumption that they make custodial decisions in the best interests of their child. The United States Supreme Court enunciated this presumption in Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion), which we have implemented in In re Adoption of C.A.,137 P.3d 318 (Colo. 2006), and in In re B.J., 242 P.3d 1128 (Colo. 2010)….

Just as the fit parents’ decision to consent to a guardianship is presumed to be in the best interests of the child, so too their decision to seek termination of the guardianship and regain care, custody, and control of the child is presumed to be in the best interests of the child, unless the guardianship order contains an express provision limiting the parents from asserting this presumption. In the absence of such a limitation in the guardianship order, as here, when fit parents seek to terminate the guardianship, guardians bear the burden of demonstrating by a preponderance of the evidence that termination of the guardianship is not in the best interests of the child….

[T]he Troxel presumption and the court’s statutory role in considering what is in the child’s best interests can be accommodated through the guardian bearing the burden of proof by a preponderance of the evidence. We hold that, in a proceeding brought by fit parents to terminate a guardianship established by consent under section 15-14-204(2)(a), guardians must demonstrate by a preponderance of the evidence that termination of the guardianship is not in the best interests

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