Wednesday, June 16, 2004

Reactive Blogging

A reader commented on a previous post and cited both Troxel and the 14th amendment. For research purposes I decided to cover both here:

14th Amendment: (copied verbatim courtesy of LII)
Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The two sections that are relevant are 1 and 5. Here is where I get a little sketchy as I do not have as firm of a command of the legal issue as I feel I should. I welcome any further commentary on the application of the 14th amendment in custody law. In a nutshell, I understand the applicability to be in reference to keeping a person from having substantial and meaningful contact with their child as a direct violation of the 1st provision. Effectively - nullifying the argument for sole custody, best interest of the child (BIC) standard, etc... Again, I welcome anyone with a better grasp on the legal aspect of this argument.

However, in looking for appropriate material to provide on Troxel I stumbled upon this: (a) The Fourteenth Amendment?s Due Process Clause has a substantive component that ?provides heightened protection against government interference with certain fundamental rights and liberty interests,? Washington v. Glucksberg, 521 U.S. 702, 720, including parents? fundamental right to make decisions concerning the care, custody, and control of their children, see, e.g., Stanley v. Illinois, 405 U.S. 645, 651. Pp. 5?8.

And then to repeat, the information on Troxel also via LII:




No. 99?138. Argued January 12, 2000?Decided June 5, 2000


Washington Rev. Code §26.10.160(3) permits any person to petition for visitation rights at any time and authorizes state superior courts to grant such rights whenever visitation may serve a child's best interest. Petitioners Troxel petitioned for the right to visit their deceased son's daughters. Respondent Granville, the girls mother, did not oppose all visitation, but objected to the amount sought by the Troxels. The Superior Court ordered more visitation than Granville desired, and she appealed. The State Court of Appeals reversed and dismissed the Troxels petition. In affirming, the State Supreme Court held, inter alia, that §26.10.160(3) unconstitutionally infringes on parents fundamental right to rear their children. Reasoning that the Federal Constitution permits a State to interfere with this right only to prevent harm or potential harm to the child, it found that §26.10.160(3) does not require a threshold showing of harm and sweeps too broadly by permitting any person to petition at any time with the only requirement being that the visitation serve the best interest of the child.

Held: The judgment is affirmed.

137 Wash. 2d 1, 969 P.2d 21, affirmed.

Justice O'Connor, joined by The Chief Justice, Justice Ginsburg, and Justice Breyer, concluded that §26.10.160(3), as applied to Granville and her family, violates her due process right to make decisions concerning the care, custody, and control of her daughters. Pp. 517.

(a) The Fourteenth Amendments Due Process Clause has a substantive component that ?provides heightened protection against government interference with certain fundamental rights and liberty interests, Washington v. Glucksberg, 521 U.S. 702, 720, including parents fundamental right to make decisions concerning the care, custody, and control of their children, see, e.g., Stanley v. Illinois, 405 U.S. 645, 651. Pp. 58.

(b) Washingtons breathtakingly broad statute effectively permits a court to disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge?s determination of the childs best interest. A parents estimation of the childs best interest is accorded no deference. The State Supreme Court had the opportunity, but declined, to give §26.10.160(3) a narrower reading. A combination of several factors compels the conclusion that §26.10.160(3), as applied here, exceeded the bounds of the Due Process Clause. First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. There is a presumption that fit parents act in their children?s best interests, Parham v. J. R., 442 U.S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents ability to make the best decisions regarding their children, see, e.g., Reno v. Flores, 507 U.S. 292, 304. The problem here is not that the Superior Court intervened, but that when it did so, it gave no special weight to Granvilles determination of her daughters best interests. More importantly, that court appears to have applied the opposite presumption, favoring grandparent visitation. In effect, it placed on Granville the burden of disproving that visitation would be in her daughters best interest and thus failed to provide any protection for her fundamental right. The court also gave no weight to Granvilles having assented to visitation even before the filing of the petition or subsequent court intervention. These factors, when considered with the Superior Courts slender findings, show that this case involves nothing more than a simple disagreement between the court and Granville concerning her childrens best interests, and that the visitation order was an unconstitutional infringement on Granvilles right to make decisions regarding the rearing of her children. Pp. 8?14.

(c) Because the instant decision rests on §26.10.160(3)s sweeping breadth and its application here, there is no need to consider the question whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation or to decide the precise scope of the parental due process right in the visitation context. There is also no reason to remand this case for further proceedings. The visitation order clearly violated the Constitution, and the parties should not be forced into additional litigation that would further burden Granvilles parental right. Pp. 1417.

Justice Souter concluded that the Washington Supreme Courts second reason for invalidating its own state statute that it sweeps too broadly in authorizing any person at any time to request (and a judge to award) visitation rights, subject only to the State?s particular best-interests standard is consistent with this Courts prior cases. This ends the case, and there is no need to decide whether harm is required or to consider the precise scope of a parents right or its necessary protections. Pp. 15.

Justice Thomas agreed that this Courts recognition of a fundamental right of parents to direct their childrens upbringing resolves this case, but concluded that strict scrutiny is the appropriate standard of review to apply to infringements of fundamental rights. Here, the State lacks a compelling interest in second-guessing a fit parents decision regarding visitation with third parties. Pp. 12.

O?Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Ginsburg and Breyer, JJ., joined. Souter, J., and Thomas, J., filed opinions concurring in the judgment. Stevens, J., Scalia, J., and Kennedy, J., filed dissenting opinions.

Again, I don't feel confident enough in my own understanding to provide broad legal analysis, but always welcome others expertise.

A more comprehensive source on Troxel can be found at FindLaw.

So, for anyone who read the comments and was confused, hope this was marginally helpful.



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