PARENTAL RIGHTS AND DUE PROCESS”

ABSTRACT FOR “PARENTAL RIGHTS AND DUE PROCESS”
The U.S. Supreme Court regards parental rights as fundamental. Such a status
should subject any legal procedure that directly and substantively interferes with the
exercise of parental rights to strict scrutiny. On the contrary, though, despite their
status as fundamental constitutional rights, parental rights are routinely suspended or
revoked as a result of procedures that fail to meet even minimal standards of procedural
and substantive due process. This routine and cavalier deprivation of parental rights
takes place in the context of divorce where, during the pendency of litigation, one
parent is routinely deprived of significant parental rights without any demonstration
that a state interest exists—much less that there is a compelling state interest that
cannot be achieved in any less restrictive way. In marked contrast to our current
practice, treating parental rights as fundamental rights requires a presumption of joint
legal and physical custody upon divorce and during the pendency of divorce litigation.
The presumption may be overcome, but only by clear and convincing evidence that such
an arrangement is harmful to the children.

The issue of parental rights and due process is not sterile or pedantic;
parental rights protect the vital interests of parents and children alike. Our
cavalier legal treatment of them is inexcusable for the real human devastation it
causes.
SOME ASPECTS OF PARENTAL RIGHTS AND THE STATE’S
INTEREST IN THE CUSTODY OF CHILDREN
Parental Rights: ‘Custody’ is a misleading term, for it suggests a unitary
thing when, in fact, it refers to a set of rights and responsibilities. In this respect,
it is like ‘property’.11 Both are convenient labels for a cluster of rights that have
traditionally been bundled together by social practice and in our thought. There is
a great danger of committing “false dichotomy fallacies” when we employ such
labels without sufficient care. With respect to property, for example, we often
think that, absent some special arrangements, a person must either own an item in
the strong sense that we own personal property, or the item must be one over
which the person has no property rights. This is, of course, mistaken, but it is an
understandable mistake given our tendency to think of owning property as an all-
or-nothing situation. We must be wary of these conventional categories—
especially when our task is to challenge the conventions themselves. We must
ask ourselves whether the items in the set of rights in question are inseparable,
whether the justification for each item is the same, and so forth. For the most
part, I shall talk about parental rights, instead of custody, to emphasize this.
I know of no exhaustive listing of the set of parental rights we typically
associate with having full custody of children. The following rights, only some
of which are relevant to our present concern, are commonly assumed to be
included in the set:
• the right to physical possession of the child;
• the right to inculcate in the child one’s moral and ethical standards,
including the right to discipline the child;
• the right to control and manage a minor child’s earnings and property;
• the right to have the child bear the parent’s name;
• the right to prevent adoption of the child without the parents’ consent;12
• the right to make decisions concerning the medical treatment,
education, religious training and other activities of the minor child;
and,
• the right to information necessary to exercise the above rights
responsibly

Parental rights are neither absolute nor unlimited. They are non-absolute
in the sense that they may, in certain cases, be overridden by other
considerations. For example, a parent’s right to determine the education of his or
her children may be overridden by the need to provide children with accurate
information with which to make responsible choices of their own. Parental rights
are limited in the sense that a full and accurate statement of them would contain
limiting clauses. Thus, the parent has no right, not merely an overridden right, to
discipline a child by physical torture.
Perhaps more importantly, parental rights are fiduciary rights.13 Parents
have the legal right to make certain decisions concerning their minor children in
the best interests of the children. This feature of parental rights explains some of
the limitations of the rights, and may also shed light on why and under what
conditions these rights might be overridden. Furthermore, the fact that the parent
is a trustee means that, even when the parent is acting within the scope of his or
her rights and in a situation in which these rights are not overridden, the parents’
choices are to be guided by considerations of the best interests of the children.
What has been said so far about the nature of parental rights doesn’t begin
to answer all the important questions about such rights. For a full understanding
of these rights, much more needs to be said about the philosophical foundation,
the content and the limitations of such rights. Fortunately, the argument
presented here does not require that we present and defend anything like a full
theory of the nature and grounds of parental rights. Rather, we will proceed on
the basis of broadly shared, considered beliefs about the content of parental rights
in the expectation that any plausible theory of the foundation of parental rights
will succeed in capturing the content we are assuming. While we will return to
the nature of parental rights after discussing the basis of the state interest in the
care and nurturing of children, we will continue to address the issue of the
implications of parental rights without defending a specific moral theory that
grounds those rights.
The State Interest: Parens Patriæ is the doctrine under which the state
alleges an interest in the care and custody of children (and others not competent
to represent their own interests). This doctrine, literally asserting that the king is
the parent of the state, was formulated in England in the thirteenth century to
assert the state’s role as guardian of those who were mentally incompetent. The
notion that the king (or the government) is the parent of the entire state is quaint;
the assertion that the state has a compelling interest in the care, nurturing, andrearing of children is anything but. How should we interpret the parens patriæ
power so as to avoid what is quaint while retaining the valid insight