Be ever Vigilant in the Protection of your Rights.

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    What would you do?
    Parents Increasingly Turning to Federal Courts for Civil Rights Protections
    by Raemike April 21, 2013

    Imagine you are in a divorce. You’ve been a dedicated parent and you aren’t a convicted felon or being accused of a crime. Now imagine walking into a local court for a procedural hearing and in a single decree your children are banned from seeing you, speaking to you or communicating in any way based solely on hearsay and allegation. Nothing’s been proven, no due process has occurred to prove anything yet a capricious judge has made a snap decision that changes the rest of your life and your children’s. What would you do?

    Unfortunately this scenario is the real life experience of thousands of families across the country. An overzealous or biased Judge makes a snap decision that takes away the most important things in our lives. Whether or not you were the one seeking divorce there’s very little that parents who find themselves in this situation can do. Even when children are banned ‘temporarily’ from their parents, months can drag on to years between court dates and there’s no pause button in life. Milestones go by, alienation grows, bitterness increases and worst of all children experience immense pain and loss. Surprisingly most states have no provisions to intervene when children are banned from their parents yet this is one of the cruelest punishments that a court can levy.

    While the US Constitution gives the powers of marriage, divorce and adoption to state civil courts, state civil courts simply ignore their obligations to support the civil rights protections of parents as held in the US Constitution. Parents who can’t afford attorneys can lose their children fighting spouses with access to legal assistance. Children who are the ones ‘protected’ have no say in bizarre custody decisions. Evidence standards are non-existent in family courts in the USA so children can be taken from parents purely on accusation. However, since many courts receive federal aid and recent Supreme Court cases like Turner vs. Rogers have reinforced the concept of due process in divorce many parents are turning to federal courts to seek restoration of their parental rights based on civil rights arguments.

    As parent Gary Treistman of Ulster County, New York who recently filed a civil rights suit against New York says, “Losing access to my children for no crime or proven allegations is a violation of my civil rights and my children’s civil rights.” Treistman continues, “I’ve not been convicted of any crime or any wrongdoing, yet a civil court is punishing me and my children more harshly than a criminal court could for most any crime based entirely on hearsay and unsupported accusations.” Treistman knows he has an uphill battle but like so many other parents seeking civil rights protections in divorce he has no other recourse. Treistman is hoping that the Federal Courts will uphold his child’s civil rights to due process and that Title 42 laws will allow him to seek retribution from New York State for taking his children away for years without due process or substantive cause.

    As M says, a mother from New York who recently lost her children for no logical reason, “removing my child is the greatest punishment a court could impose yet due process is ignored and I have nowhere to appeal.” As the primary care giver for her young child M was shocked when a Judge made the snap decision to temporarily remove her daughter from custody based on vague and unproven allegations. In M’s case, like so many others in New York and elsewhere the Judge imposed an extra layer of cruelty by forcing the former stay-at-home mom to have her visits supervised. But with ‘visitation’ costing over $200 an hour and visits limited to only a few hours M finds it impossible to maintain a relationship with her young child and her child is under tremendous psychological stress from the situation.

    After thirty appearances in Family Court that have led nowhere M decided to file suit in Federal Court for violation of her constitutional rights to due process and parental rights to protect her child. As M states, “Legal Guardians, custody evaluators and attorneys have tremendous unchecked power in New York without the protections of due process we are led to believe we have as Americans.” One baseless allegation to an irritated Judge from a connected attorney can lead to life-shattering decisions that are near impossible to change. With no jury or effective supervision of the courtroom behavior of judges or custody evaluators recommending such harsh punishments families have no guarantees of due process. Once the tables are turned against a parent and child by a Judge, legal guardians or custody evaluators there are no checks and balances ensuring the integrity of the cruel and unusual punishments that family courts can decree.

    Though M is realistic about Federal Courts jurisdiction she wants change in the system as much as she wants relief from the pain of being separated from her child. “It’s my hope that this federal complaint will protect parents from their right to fair and speedy trial and raise awareness of the cruel punishments parents face without due process in cases where there are no signs of abuse.” It’s near impossible for children and parents who are banned from each other to contain their emotions in terse, supervised meetings yet New York officials notate every remark, touch, tear and comment and tend to use emotion against the banned parent. M hopes her appeal for due process for both her and her daughter will force New York State to look at evidence and not base their decision on hearsay. After thirty appearances in family and supreme court M has little hope to regaining a normal relationship with her child.

    While some parents are seeking civil rights protections under the 14th Amendment and others are seeking compensation for unjust actions under Title 42, still others are seeking RICO prosecutions against groups of attorneys, judges and court appointed experts who work together to bankrupt families. As New York parent Gary says “the assigned Attorney for Child in my case coerced payments from me without providing accounting of her work, or representing my child’s wishes.” Since legal guardians are supposedly critical representatives for children’s legal rights, by refusing to work when payment wasn’t possible Gary and parents like him face tremendous punishments for not being able to pay expensive court-ordered divorce professionals.

    In New York for example, where both parents must file for sole custody, the costs of court ordered experts can exceed $50,000 including custody evaluators, guardians and attorney’s fees. Parents who can’t afford to pay find themselves without their children. When groups of judges, experts and attorneys repeatedly work as teams to use child custody as the basis for huge fees that bankrupt families, some parents believe that there is basis for RICO prosecutions. Since the local courts are not bound by due process and ethics enforcement of judges, attorneys and experts is near non-existent groups of divorce professionals can easily use the court system and custody as tools of extortion. Unfortunately for parents, criminal RICO statutes must be brought forth by the US Government and the US Government is unwilling to review the business practices of the divorce industry in many states.

    Many parents who face the cruel and unusual punishment of parental rights termination have turned to activism to raise awareness to the lack of civil rights that families encounter in family courts in America. For example, Greg Roberts started the Family Civil Liberties Union (fclu.org) to help parents fight unjust removal of their parental rights. As Roberts’ website accurately states, “Once in the family court system, it can be years and hundreds of thousands of dollars before an average family emerges from the system – broken, slandered, extorted, exploited and forever damaged beyond repair.” Roberts sees the family court system as “sanctioned corruption” that creates “conflict for cash” with no regard for the civil rights of the children or parents involved.

    As Roberts site points out, the ACLU and other civil rights organizations turn a blind eye to the atrocious violations of civil rights that middle class families face in family courts. Generally speaking the victims of family courts have enough money to pay attorneys for some time and are religious, heterosexual and often times not minorities. The ACLU is aware of the civil rights abuses that families face in family courts and they have acted on behalf of one family in Montana that they publicize on the ACLU website, however, this was a gay relationship which is an area that is a traditional focus of the ACLU. The ACLU is unwilling to aid middle-class Americans and children even though hundreds of thousands of children see their lives destroyed each year in family courts devoid of due process protections.

    Some insight can be garnered on the US Government’s position on the civil rights of families in the refusal of the US to join UNICEF’s Convention on the Rights of the Child. The United States is the only member state of the UN besides South Sudan and Somalia to not ratify this act. This act “combines a right to protection through the State, parents and relevant institutions with the recognition that the child is a holder of participatory rights and freedoms,” states UNICEF. This act acknowledges parents as the primary care givers of a child and vastly limits the cases where a child can be removed from a parent. Since many parents are removed for capricious reasons, this statement from Article 2 of the act would give parents a strong basis to fight unfair removal of custody. ‘States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.’ Interestingly enough, many of the conservative groups who lobby hard for the rights of the unborn child oppose this bill and the civil rights of living children because they feel that it will provide basis to interfere with home schooling.

    In April, 2013 Russia, in a retaliatory action against the United States, banned a list of important US figures from Russia on the basis of human rights violations. Interestingly enough Russia chose to ban the US Attorney from Southern New York, Preet Bharara. While the reasoning for Mr. Bharara’s ban was not related to children’s civil rights Mr. Bharara and other US Attorneys should rightly be called out for not protecting the civil rights of children. The US Attorney’s office is well aware of the collusion and civil rights abuses that are commonplace in US family courts but because of the deep political protections of the Divorce Industry in most states, the Justice Department is uninterested in protecting the civil rights of children and families in the face of a powerful industry lobby.

    The parent-child relationship is sacred and deep and should be defended as strongly as any basic human right but sadly, even though these rights have been explicitly recognized by the U.S. Supreme Court, in the United States and in New York in particular, poorly supervised lower courts and agencies use children as extortion tools for a predatory divorce industry. States have proven themselves unable and unwilling to protect the civil rights of children and families so parents are forced to go to federal courts to protect basic civil rights. The US Government has precedential authority to intervene in local courts to protect the civil rights of the unprotected as they’ve done for minorities, women the disabled and others. It’s time for the US to act for the sake of our children to provide due process and civil rights protections in divorce and child custody. No child should be banned from a parent except in the most extreme circumstances, and it’s time to stand up for the rights of children.

    I began the article by asking you to imagine being a parent who has just lost their kids unexpectedly in a mundane and terse court hearing. Now imagine yourself as a young child who is suddenly told by a court that your parent is a bad person and harmful, though they’ve never committed a crime and have been your loving supporter. What would you do?

    AS ALWAYS …..FOLLOW THE MONEY

  • M
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    THE CONSTITUTIONA
    L RIGHTS OF
    NON-CUSTODIAL PARENTS
    David D. Meyer*
    I. I
    NTRODUCTION
    The legal treatment of non-custodial parents has become a lightning
    rod in modern family law. The topic is obviously important. Every year
    in this country, about one milli
    on children see their parents divorce.
    1
    In
    addition, roughly a third of all children are born to parents who are not
    married.
    2
    Many of these parents, of course, will never live together, and
    those who do face a high risk of breaking up before the children are
    grown.
    3
    Taken together, the trends suggest that fewer than half of all
    * Professor of Law and Mildred Van Voorhis
    Jones Faculty Scholar, Un
    iversity of Illinois
    College of Law. An earlier draft
    of this Article was delivered as
    the 2006 Sidney & Walter Siben
    Distinguished Professorship Lecture at Hofstra Univ
    ersity School of Law. I am most grateful to
    Professor John DeWitt Gregory and the rest of the Ho
    fstra faculty for their generous hospitality and
    insightful comments on the lecture.
    1.
    See
    A
    NDREW
    I.
    S
    CHEPARD
    ,
    C
    HILDREN
    ,
    C
    OURTS
    ,
    AND
    C
    USTODY
    :
    I
    NTERDISCIPLINARY
    M
    ODELS FOR
    D
    IVORCING
    F
    AMILIES
    28 (2004).
    2.
    See
    Brady E. Hamilton et al.
    , Births: Preliminary Data for 2002
    , N
    AT

    L
    V
    ITAL
    S
    TAT
    .
    R
    EP
    .
    (Ctrs. for Disease Control & Prevention,
    Hyattsville, Md.),
    June 25, 2003, at 3 (indicating that
    33.8% of all U.S. births in 2002 were to unmarried women),
    available at
    http://cdc.gov/nchs/data/nvsr51_11.
    pdf; Robert D. Plotnick,
    Seven Decades of Nonmarital
    Childbearing in the United States
    , at 1 (Feb. 2004),
    available at
    http://npc.umich.edu/news/events/others/SevenDecades.pdf.
    3.
    In the United States, most non-marital births
    are to women who are not cohabiting with a
    partner.
    See
    Marsha Garrison,
    Is Consent Necessary? An Evaluation of the Emerging Law of
    Cohabitant Obligation
    , 52 UCLA
    L.
    R
    EV
    .
    815, 881-82 (2005) [hereinafter Garrison,
    Is Consent
    Necessary?
    ]. Unmarried parents who do cohabit are mo
    re likely to split up; most cohabiting
    relationships dissolve within five years.
    See id.
    at 839 & nn.90-92; Margaret F. Brinig & Steven L.
    Nock,
    Marry Me, Bill: Should Cohabitation
    Be the (Legal) Default Option?
    , 64 L
    A
    .
    L.
    R
    EV
    . 403,
    408 (2004) (discussing social science evidence showi
    ng that cohabiting “relationships . . . last a
    shorter time than marriage, even if there are
    children”); Marsha Garr
    ison, Reviving Marriage:
    Should We? Could We?, at 19-22 (Oct.
    2005) (unpublished paper available at
    http://ssrn.com/abstract=829825) (discussing eviden
    ce of comparative instability and qualification
    of commitment in cohabiting relationships and noti
    ng that “[e]ven the arrival of a child does not
    appear to alter the feeling that cohabitation is f
    undamentally different from marriage”) [hereinafter
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    HOFSTRA LAW REVIEW
    [Vol. 35:1461
    children born today—and perhaps as few as a quarter—will live with
    both their parents throughout childhood.
    4
    Defining the custodial rights of
    divorced or separated parents is therefore likely to be a matter of direct
    concern for a majority of the nation’s children.
    The topic is also timely. Non-custodial parents are in the news as
    never before. Frustrated parents are seen scaling the walls of
    Buckingham Palace and other monum
    ents, dressed as superheroes.
    5
    They stare out angry and stone-faced from the front cover of
    The New
    York Times Sunday Magazine
    .
    6
    Their grievances against a family law
    they see as stacked against them ar
    e splashed across billboards and
    newspaper advertisements.
    7
    And they are said to be coming soon to a
    theater near you: Miramax recently bought the movie rights to the life
    story of the founder of Fathers 4 Justice, the British group responsible
    for much of the surging media attention.
    8
    It is easy to dismiss the antics of some of these activists as loopy or,
    in some darker cases, just plain depr
    aved. Fathers 4 Justice, for instance,
    temporarily disbanded in January
    2006 after an “extremist splinter
    group” was accused of plotting to kidnap British Prime Minister Tony
    Garrison,
    Reviving Marriage
    ]; Elizabeth S. Scott,
    Marriage, Cohabitation and Collective
    Responsibility for Dependency
    , 2004 U. C
    HI
    .
    L.
    F
    ORUM
    225, 244-46 (discussing the greater
    instability of cohabitating relati
    onships); Robin Fretwell Wilson,
    Evaluating Marriage: Does
    Marriage Matter to the Nurturing of Children?
    , 42 S
    AN
    D
    IEGO
    L.
    R
    EV
    . 847, 857, 869-70 (2005)
    (discussing growing incidence of childrearing and
    the high rate of dissolution among unmarried,
    cohabiting couples). As David Popenoe notes, the eff
    ective shift of childbearing from marriage into
    generally less stable non-marital relationships means
    that even as the divorce rate has leveled off,
    “[t]he estimated combined breakup rate of both
    married and unmarried uni
    ons . . . continues to
    escalate.” D
    AVID
    P
    OPENOE
    ,
    L
    IFE
    W
    ITHOUT
    F
    ATHER
    20 (1996).
    4.
    See
    D
    OUGLAS
    E.
    A
    BRAMS
    ,
    N
    AOMI
    R.
    C
    AHN
    ,
    C
    ATHERINE
    J.
    R
    OSS
    &
    D
    AVID
    D.
    M
    EYER
    ,
    C
    ONTEMPORARY
    F
    AMILY
    L
    AW
    634 (2006); N
    ANCY
    E.
    D
    OWD
    ,
    R
    EDEFINING
    F
    ATHERHOOD
    23 (2000)
    [hereinafter D
    OWD
    ,
    R
    EDEFINING
    F
    ATHERHOOD
    ] (noting that “[f]orty percent of all children do not
    live with their fathers and, more distressing, it is
    estimated that the rate will rise to 60 percent for
    children born in the 1990s”). For the moment, most
    children in the United States reside with both
    parents, but the numbers are declining.
    See
    S
    CHEPARD
    ,
    supra
    note 1, at 28.
    5.
    See
    Patrick E. Tyler,
    Buckingham Palace’s New Tourist Attraction: Batman
    , N.Y. T
    IMES
    ,
    Sept. 14, 2004, at A3;
    Fathers’ Rights Protesters Scale Westminster Abbey
    , B
    IRMINGHAM
    P
    OST
    (UK),
    Apr. 14, 2006, at 7,
    available at
    2006 WLNR 6293956.
    6. Susan Dominus,
    The Fathers’ Crusade
    , N.Y. T
    IMES
    S
    UNDAY
    M
    AGAZINE
    , May 8, 2005, at
    26.
    7.
    See
    Mary Zemaitis,
    Billboard Campaign Criticizes Champaign County Judge
    , D
    AILY
    I
    LLINI
    ,
    Nov. 2, 2005, at 1. The advertising campaigns of one fathers’ rights organization, the
    American Coalition for Fathers and Ch
    ildren, are catalogued on its website,
    http://www.acfc.org/site/PageServe
    r?pagename=Billboards_and_Ads.
    8.
    See
    John Higginson,
    Holy Smoke! The Fathers 4 Justice Film
    , E
    VENING
    S
    TANDARD
    ,
    Jan.
    20, 2006,
    available at
    http://thisislondon.co.uk/films/ar
    ticles/21483390?source=
    Metro (reporting
    that “[a]fter two years of fighting between film
    companies, Disney-owned Miramax has bought the
    rights to turn the campaign group’s story into a blockbuster”).
    M
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    NON-CUSTODIAL PARENTS
    1463
    Blair’s five-year-old son, Leo, to dr
    amatize their feelings of parental
    powerlessness.
    9
    But, beyond the stunts and costumes, it is clear that the
    sense of injury expressed by these ac
    tivists resonates with a broader
    circle of non-custodial parents.
    10
    Because non-custodial parents are
    overwhelmingly men, the clash over custody is often seen as a front in
    the so-called “gender wars.”
    11
    Certainly, it is true that the cause of non-
    custodial parents is championed most visibly by a newly energized
    Fathers’ Rights movement,
    12
    and that a distressing share of the internet
    polemics on the topic crackles with misogynistic invective.
    13
    The gender
    implications of the topic are real, but
    the issue is not solely about the
    rights of fathers. There are smaller numbers of women, too—both non-
    custodial mothers and the new partners of non-custodial fathers—who
    are agitating for greater empowerment of non-custodial parents.
    14
    Significantly, the push for non-custodial parents’ rights is doing
    much more than generating headlines;
    it has already spurred significant
    9.
    See
    Stewart Tendler,
    Fathers 4 Justice Is Disbanded Over “Plot” To Kidnap Leo Blair
    ,
    T
    IMES
    O
    NLINE
    (Jan. 19, 2006),
    available at
    http://timesonline.co.uk/ar
    ticle/0,,2-1996209,00.html.
    The group reemerged dramatically four months
    later by taking over a BBC
    television studio during
    a live broadcast of the national lottery drawing.
    See
    Sophie Goodchild,
    Fathers 4 Justice Storm
    BBC’s Live Lottery Show
    , I
    NDEPENDENT ON
    S
    UNDAY
    (UK), May 21, 2006, at 4,
    available at
    2006
    WLNR 8723745.
    10.
    See
    Patrick Parkinson,
    The Past Caretaking Standard in Comparative Perspective
    ,
    in
    R
    ECONCEIVING THE
    F
    AMILY
    :
    C
    RITIQUE ON THE
    A
    MERICAN
    L
    AW
    I
    NSTITUTE

    S
    P
    RINCIPLES OF THE
    L
    AW OF
    F
    AMILY
    D
    ISSOLUTION
    446, 461 (Robin Fretwell Wilson ed., 2006).
    11.
    See
    generally
    M
    ARY
    A
    NN
    M
    ASON
    ,
    T
    HE
    C
    USTODY
    W
    ARS
    :
    W
    HY
    C
    HILDREN
    A
    RE
    L
    OSING
    THE
    L
    EGAL
    B
    ATTLE
    ,
    AND
    W
    HAT
    W
    E
    C
    AN
    D
    O
    A
    BOUT
    I
    T
    2 (1999) [hereinafter M
    ASON
    ,
    C
    USTODY
    W
    ARS
    ]; June Carbone,
    The Missing Piece of the Custody Puzzle: Creating a New Model of Parental
    Partnership
    , 39 S
    ANTA
    C
    LARA
    L.
    R
    EV
    . 1091, 1095 (1999) (noting th
    at “[t]he battle lines” over
    custody “are well drawn and they
    are gendered ones”); Herma Hill Kay,
    No-Fault Divorce and
    Child Custody: Chilling Out the Gender Wars
    , 36 F
    AM
    .
    L.Q.
    27, 34-39 (2002) (discussing the
    “gender wars over custody” spurred by claims of fathers’ rights).
    12.
    See
    Dominus,
    supra
    note 6, at 26; Parkinson,
    supra
    note 10, at 467; William C. Smith,
    Dads Want Their Day: Fathers Charge Legal Bias
    Toward Moms Hamstrings Them as Full-Time
    Parents
    ,
    89 A.B.A. J. 38, 39-40 (Feb. 2003).
    13.
    See
    Nancy E. Dowd,
    Fathers and the Supreme Court: Founding Fathers and Nurturing
    Fathers
    , 54 E
    MORY
    L.J. 1271, 1272 (2005) [hereinafter Dowd,
    Fathers and the Supreme Court
    ]
    (noting that some strains of fathers’ rights
    advocacy are “strongly antifeminist, even woman-
    hating”) (footnotes omitted);
    Martha Albertson Fineman,
    Fatherhood, Feminism and Family Law
    ,
    32 M
    C
    G
    EORGE
    L.
    R
    EV
    . 1031, 1043 (2001) [hereinafter Fineman,
    Fatherhood
    ] (observing that “[a]
    substantial amount of fathers’ rights discourse
    characterizes mothers in negative and malicious
    stereotypes, arguing for monitoring, punishme
    nt, containment and control over mothers”).
    14.
    See, e.g.
    ,
    Julian v. Julian, No. M1997-00236-COA-R3-CV, 2000 WL 343817, at *1
    (Tenn. Ct. App. Apr. 4, 2000)
    (asserting constitutional rights of non-
    custodial mother). Reportedly,
    a third of the members of Fathers 4 Justice are women.
    See Activist: How I Stormed Lottery Show
    ,
    P
    LYMOUTH
    E
    VENING
    H
    ERALD
    , May 22, 2006, at 9,
    available at
    2006 WLNR 8797790. To
    dramatize the point, one of the six custody-right
    s activists who stormed a BBC studio in May 2006
    was a woman.
    Id.
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    changes to family law in some stat
    es and, indeed, around the world. The
    movement’s influence can be seen in laws affecting custody, visitation,
    child support, and paternity, not only in the United States but also in
    Australia, Canada, and Europe.
    15
    Non-custodial parents have gained new
    rights to enforce visitation, limit their support obligations based on
    additional time caring for the child,
    and even to “disestablish” their
    parental status (and obligations) altogether based on DNA proof of non-
    paternity later in the child’s life.
    16
    Most of the changes so far have
    come through legislative action,
    and proponents are presently pushing many new initiatives in state
    legislatures across the United States.
    17
    Increasingly, however, non-
    custodial parents are turning their
    attention to the courts as well,
    demanding better or equal treatment
    as a matter of constitutional right.
    15.
    See
    Smith,
    supra
    note 12, at 39 (noting that “[f]athe
    rs’ rights advocates have lobbied
    several states to adopt a legal preference for jo
    int custody, pressed for stricter enforcement of
    noncustodial fathers’ visitati
    on rights, and pushed for DNA paternity tests in child support
    proceedings” and that “this loosely organized moveme
    nt has demonstrated its political clout in state
    legislatures and family courts nationwide”). Surv
    eying recent development in child custody law in
    Australia, Canada, Denmark, England, France, H
    ong Kong, Portugal, and the United States, Helen
    Rhoades and Susan Boyd observe that a “common thre
    ad” is “the central role played by fathers in
    triggering the legislative reviews, and the tendenc
    y for new policies to embrace a normative shift
    towards a shared parenting model.” Helen Rhoades & Susan B. Boyd,
    Reforming Custody Laws: A
    Comparative Study
    , 18 I
    NT

    L
    J.L.
    P
    OL

    Y
    &
    F
    AM
    . 119, 119 (2004). Australia enacted new legislation
    in 2006 strengthening its legal preference
    for “shared parental responsibility.”
    See
    Family Law
    Amendment (Shared Parental Responsibility) Act 2006,
    available at
    http://www.comlaw.gov.au/ComLaw/Legislati
    on/Act1.nsf/0/1D1968BB157D8090CA257178000B
    0A56?OpenDocument&VIEWCAT=
    item&COUNT=999&START=1. For further discussion of
    “shared parenting” initiatives in Australia, Cana
    da, and Europe, see Ian Curry-Sumner & Caroline
    Forder,
    The Dutch Family Law Chronicles: Con
    tinued Parenting Notwithstanding Divorce
    , in T
    HE
    I
    NTERNATIONAL
    S
    URVEY OF
    F
    AMILY
    L
    AW
    261 (Andrew Bainham ed., 2006); Parkinson,
    supra
    note
    10, at 456-70; and Helen Rhoades,
    The Rise and Rise of Shared Parenting Laws
    , 19 C
    AN
    .
    J.
    F
    AM
    .
    L.
    75 (2002).
    16.
    See, e.g.
    , Margaret F. Brinig,
    Does Parental Autonomy Require Equal Custody at
    Divorce?
    , 65 L
    A
    .
    L.
    R
    EV
    .
    1345, 1347-48 (2005) [hereinafter Brinig,
    Parental Autonomy
    ] (discussing
    Oregon legislation strengthening
    non-custodial parents’ rights concerning visitation and child
    support); Marygold S. Melli,
    The American Law Institute Principl
    es of Family Dissolution, the
    Approximation Rule and Shared-Parenting
    , 25
    N.
    I
    LL
    .
    L.
    R
    EV
    .
    347, 358-61 (2005) [hereinafter
    Melli,
    Shared-Parenting
    ] (discussing reductions of child support based upon shared parenting);
    Linda Lea M. Viken,
    Child Support in South Dakota from Obligor Only to Shared Responsibility,
    an Overview
    , 48
    S.D.
    L.
    R
    EV
    . 443, 447-52 (2003) (recounting changes in South Dakota law). For
    critical analyses of the recent legislative and judici
    al trend allowing legal fathers to “disestablish”
    paternity, see generally Melanie B. Jacobs,
    When Daddy Doesn’t Want to Be Daddy Anymore: An
    Argument Against Paternity Fraud Claims
    , 16 Y
    ALE
    J.L.
    &
    F
    EMINISM
    193 (2004); Jana Singer,
    Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption
    , 65 M
    D
    .
    L.
    R
    EV
    . 246 (2006).
    17. Many of the pending legislative initia
    tives are summarized on the website of the
    American Coalition for Fathers and Children, http
    s://secure2.convio.net/acfc/site/SPageServer?page
    name=SharedParentingLegislation&JS
    ervSessionIdr002=ytmwy06ur1.app6a.
    M
    EYER
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    INAL
    2006]
    NON-CUSTODIAL PARENTS
    1465
    Michael Newdow, the California father who took his fight against the
    Pledge of Allegiance at his daughter
    ’s school all the way to the U.S.
    Supreme Court, may be the best known of these litigants.
    18
    But, with less
    fanfare, many other parents have also gone to court claiming a
    constitutional entitlement to play a larger and co-equal role in the
    upbringing of their children. In the fall of 2004, for example,
    coordinated class-action lawsuits we
    re filed in forty-four states
    challenging the constitutionality of
    prevailing custody law and asserting
    a constitutional right to “shared parenting,” or equal time with and
    authority over their children.
    19
    To date, non-custodial parents have met mostly with frustration in
    their resort to constitutional law.
    20
    There have been some important
    successes over the years—most notably, the series of U.S. Supreme
    Court decisions recognizing the parenting status of some unwed
    fathers.
    21
    But, in large measure, recent claimants asserting a right to
    equal parenting prerogatives have
    been stymied by a battery of
    impediments relating to standing,
    jurisdiction, or the merits.
    22
    As
    discussed in greater detail below, the broad view that emerges from this
    litigation, in varied contexts, is that parents are
    not
    constitutionally
    entitled to a co-equal role in raising their children following separation
    or divorce. The state, in this view, retains considerable discretion to
    allocate parental authority and access following dissolution, including
    giving one parent a superior and dominant child-rearing role, without
    having to prove extraordinary or compelling grounds.
    This Article scrutinizes that conclusi
    on. Is it right to think that the
    Constitution, which is said to zealously
    protect the rights and authority
    18.
    See
    Elk Grove Uniform Sch. Dist. v. Newdow
    , 542 U.S. 1 (2004). Profiles of Michael
    Newdow, the medical doctor and law sc
    hool graduate who argued his own case
    pro se
    in the
    Supreme Court, appeared widely in the press.
    See, e.g.
    , Dominus,
    supra
    note 6. Recently, Newdow
    reemerged in the headlines when he filed a lawsu
    it challenging the constitutionality of the use of “In
    God We Trust” on U.S. currency.
    See Atheist Targets Currency
    , G
    RAND
    R
    APIDS
    P
    RESS
    ,
    Nov. 19,
    2005, at A8,
    available at
    2005 WLNR 18779412.
    19.
    See
    Kim Kozlowski,
    Divorced Michigan. Fathers Sue for Equity in Child Custody: Class-
    Action Lawsuit Seeks to Make Joint Cu
    stody the First Option Judges Consider
    ,
    D
    ETROIT
    N
    EWS
    ,
    Oct. 31, 2004,
    available at
    http://www.fathers.ca/fathers_sue_fo
    r _equality.htm; Sheldon Gordon,
    Fathers’ Day
    , N
    ATIONAL
    , Dec. 2003 (describing similar legal claims in Canada),
    available at
    http://www.canadiancrc.com/artic
    les/CBA_Fathers_Day_2003.htm;
    see generally
    Maury D.
    Beaulier,
    Establishing a Presumption for Joint Physical Custody
    , T
    RANSITIONS
    , Mar. 1, 2006, at 1.
    For a listing and summary of the lawsuits, see the website of the Indiana Civil Rights Council,
    http://indianacrc.org/classaction.html.
    20.
    See infra
    notes 90-137 and accompanying text.
    21.
    See, e.g.
    ,
    Caban v. Mohammed, 441 U.S. 380 (1979);
    Stanley v. Illinois, 405 U.S. 645
    (1972);
    see also
    discussion
    infra
    Part III.A.
    22.
    See
    discussion
    infra
    Parts III.B-C.
    M
    EYER
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    HOFSTRA LAW REVIEW
    [Vol. 35:1461
    of parents within the intact family
    , falls away so sharply following
    divorce or family break-up? And, if so, why and on what ground? In my
    view, the Constitution does in fact to
    lerate unequal roles for parents in
    the divided family, although not for th
    e reasons most courts have given.
    The reason the Constitution tolerates unequal roles is not that the
    parenting interests of non-custodial parents are unprotected or
    insubstantial, as some courts have reasoned, or that the “best interests”
    of children is a “compelling” state interest which categorically
    overcomes the fundamental rights of
    parents under strict constitutional
    scrutiny.
    23
    Rather, it is because constitutional protection of parental
    rights—of custodial and non-custodial parents alike—is always
    necessarily qualified by the competing interests of other family
    members. By this view, the qualification—or, to be frank, the
    weakness—of non-custodial parents’ rights does not so much reflect the
    unique disabilities of the non-custodial parent, as it does the relative
    weakness of “family privacy” rights
    more generally: Even within the
    ongoing “intact” family, the Constitution must be understood to leave
    room for sensitive accommodation by
    the state of the potentially
    conflicting interests of various family members. My claim, finally, is
    that honesty in confronting the d
    ilemma posed by the claims of non-
    custodial parents should lead courts
    not to ratchet up dramatically the
    protection those parents receive, but
    to acknowledge candidly that the
    Constitution permits—and even requires—the state to balance the
    interests of others within the family in drawing the limits of family
    privacy.
    This Article proceeds in three part
    s. Part I describes the evolution
    of modern custody law, providing a context for evaluating the present
    constitutional claims. Part II then
    surveys how non-custodial parents
    have fared in pressing their claims in
    court. Part III, finally, critiques the
    rationales courts have used to
    limit constitutional protection for non-
    custodial parents, and suggests an alternative basis for resolving these
    claims. It concludes, moreover, by suggesting why it would be
    preferable to openly concede the inde
    terminate nature of family-privacy
    protection, even if doing so would not drastically alter the bottom-line
    outcome of many family disputes over parenting.
    23.
    See infra
    notes 95-133 and accompanying text.
    M
    EYER
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    INAL
    2006]
    NON-CUSTODIAL PARENTS
    1467
    II. T
    HE
    E
    VOLUTION OF
    C
    USTODY
    L
    AW
    :
    F
    ROM
    S
    OLE
    C
    USTODY TO
    S
    HARED
    P
    ARENTING
    The law of child custody has undergone a dramatic transformation
    over the past 150 years—or, more accurately, several transformations.
    24
    American law began with a powerful presumption for custody with
    fathers. The entitlement of the father
    —“the Lord of the fireside,” in
    Chancellor Kent’s phrase—was nearly absolute and, as historian
    Michael Grossberg has noted, was “[m]oored in the medieval equation
    of legal rights with property ownership.”
    25
    The father was naturally
    entitled to the benefit of the child’s
    labor, it was supposed, in exchange
    for the father’s investment in the child’s support.
    26
    This rule favoring
    fathers gave way only if the father
    was shown to be w
    holly “unfit”—that
    is, if he were shown, in the words
    of one South Carolina judge, to have
    “monstrously and cruelly abused” his parental power;
    27
    otherwise,
    Blackstone observed, the mother was “entitled to no power, but only to
    reverence and respect.”
    28
    This rule was then turned on
    its head over the course of the
    nineteenth century. The rule favor
    ing fathers in divorce had always
    coexisted with one granting mothers custody of children born outside
    marriage.
    29
    So-called “illegitimate children” were essentially disregarded
    by English law as “the child of no one,” but by custom lived with their
    mothers.
    30
    And in early America this custom took on the force of law,
    24.
    See
    M
    ARY
    A
    NN
    M
    ASON
    ,
    F
    ROM
    F
    ATHER

    S
    P
    ROPERTY TO
    C
    HILDREN

    S
    R
    IGHTS
    :
    T
    HE
    H
    ISTORY OF
    C
    HILD
    C
    USTODY IN THE
    U
    NITED
    S
    TATES
    xii (1994) [hereinafter M
    ASON
    ,
    F
    ROM
    F
    ATHER

    S
    P
    ROPERTY TO
    C
    HILDREN

    S
    R
    IGHTS
    ].
    25. M
    ICHAEL
    G
    ROSSBERG
    ,
    G
    OVERNING THE
    H
    EARTH
    :
    L
    AW AND THE
    F
    AMILY IN
    N
    INETEENTH
    -C
    ENTURY
    A
    MERICA
    235, 240 (1985). Barbara Woodhouse has demonstrated how
    essentially similar property notions imbued the
    Supreme Court’s recognition of parental rights
    under the Constitution.
    See generally
    Barbara Bennett Woodhouse,
    “Who Owns the Child?”:
    Meyer
    and
    Pierce
    and the Child as Property
    , 33 W
    M
    .
    &
    M
    ARY
    L.
    R
    EV
    . 995 (1992).
    26.
    See
    G
    ROSSBERG
    ,
    supra
    note 25, at 235; M
    ASON
    , F
    ROM
    F
    ATHER

    S
    P
    ROPERTY TO
    C
    HILDREN

    S
    R
    IGHTS
    ,
    supra
    note 24, at 61.
    27. In
    Prather v. Prather
    , 4 S.C. Eq. 33 (1809), the court wrote in an action seeking separate
    maintenance and custody against an abusive husband:
    With respect to the children,
    I do not feel myself at lib
    erty to take them out of
    the care and custody of the father. He is
    the natural guardian, invested by God
    and the law of the country, with
    reasonable power over them. Unless
    therefore his paternal power has been monstrously and cruelly abused, this
    court would be very cautious of interfering in the exercise of it.
    Id.
    28.
    See
    B
    LACKSTONE

    S
    C
    OMMENTARIES ON THE
    L
    AW
    196 (Bernard C. Gavit ed., 1941);
    G
    ROSSBERG
    ,
    supra
    note 25, at 236.
    29.
    See
    G
    ROSSBERG
    ,
    supra
    note 25, at 207-08.
    30.
    See generally id.
    at 197-210;
    H
    ARRY
    D.
    K
    RAUSE
    ,
    I
    LLEGITIMACY
    :
    L
    AW AND
    S
    OCIAL
    P
    OLICY
    1-8 (1971).
    M
    EYER
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    INAL
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    HOFSTRA LAW REVIEW
    [Vol. 35:1461
    with early custody battles recognizing a parallel entitlement of mothers
    to retain custody of non-marital children.
    31
    Further cracks began to open in the paternal preference in cases of
    divorce as early as the 1810s and 1820s, with judges expressing new
    concern for the interests of children
    and for the unique values of “mother
    love,” particularly for younger children.
    32
    By the end of the century, it
    had crumbled entirely, replaced with a mirror-image preference for
    mothers.
    33
    Under the Tender Years doctrine, mothers were heavily
    presumed to be the proper custodian of young children.
    34
    Custody went
    to fathers only if the mothers were altogether “unfit” to parent.
    35
    Explicit gender preferences in custody were finally set aside in
    almost all states during the 1970s. A new intolerance for sex
    discrimination in equal protection doctr
    ine, along with the entry of more
    women into the permanent workforce,
    made a categorical preference for
    mothers untenable.
    36
    Custody law was then recentered on a formally
    gender-neutral inquiry into the “best interest of the child.”
    37
    This did not mean, of course, that gender bias no longer infected
    custody decisions, but it was largely pushed underground. Undoubtedly,
    some judges continue to favor mother custody generally, and some seem
    to disfavor men
    or
    women who buck traditional gender stereotypes.
    38
    A
    31.
    See
    G
    ROSSBERG
    ,
    supra
    note 25, at 207-11.
    32.
    See
    Jamil S. Zainaldin,
    The Emergence of a Modern American Family Law: Child
    Custody, Adoption, and the Courts, 1796-1851
    , 73 N
    W
    .
    U.
    L.
    R
    EV
    . 1038, 1052-59 (1979)
    (describing how the common law’s strict paternal
    entitlement began to give way to discretionary
    judicial consideration of child welfar
    e in early nineteenth century cases).
    33.
    See
    M
    ASON
    ,
    F
    ROM
    F
    ATHER

    S
    P
    ROPERTY TO
    C
    HILDREN

    S
    R
    IGHTS
    ,
    supra
    note 24, at 3-4.
    As Cynthia Starnes aptly notes, “[w]hat thus began
    as a rule of absolute paternal preference under
    Roman law evolved into a rule of absolute maternal
    preference in U.S. law, at least in cases of
    children of ‘tender’ years.” Cynthia Starnes,
    Swords in the Hands of Babes: Rethinking Custody
    Interviews After
    Troxel, 2003 W
    IS
    .
    L.
    R
    EV
    . 115, 120.
    34.
    See
    H
    OMER
    H.
    C
    LARK
    ,
    J
    R
    .,
    T
    HE
    L
    AW OF
    D
    OMESTIC
    R
    ELATIONS IN THE
    U
    NITED
    S
    TATES
    § 19.4, at 799-800 (2d ed. 1988).
    35.
    See
    Ramsay Laing Klaff,
    The Tender Years Doctrine: A Defense
    , 70 C
    AL
    .
    L.
    R
    EV
    . 335,
    342 (1982).
    36.
    See generally
    Fineman,
    Fatherhood
    ,
    supra
    note 13, at 1038 (2001).
    37.
    See id.
    38. A task force study of the Virginia courts
    , for example, concluded that “[d]ecisions in
    custody matters may reflect gender bias” and that
    “[m]any participants in the study, particularly
    men, perceive that courts are biased against men
    in custody matters, which may be based to a great
    extent on continued application of the ‘tender years’
    presumption.” Gender Bias in the Courts Task
    Force,
    Gender Bias in the Courts of the Commonwealth Final Report
    , 7 W
    M
    .
    &
    M
    ARY
    J.
    OF
    W
    OMEN
    & L. 705, 718 (2001). Studies in other states
    have similarly concluded that gender bias
    continues to influence custody decisions.
    See
    Gender and Justice in the Courts: A Report to the
    Supreme Court of Georgia by the Commission on
    Gender Bias in the Judicial System
    , 8 G
    A
    .
    S
    T
    .
    U.
    L.
    R
    EV
    . 539, 657-58 (1992);
    Gender Bias Study of the Court System in Massachusetts
    , 24 N
    EW
    E
    NG
    .
    L.
    R
    EV
    . 745, 827 n.47 (reprint 1990).
    But cf.
    Report of the Florida Supreme Court Gender Bias
    M
    EYER
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    child-rearing roles between a “custodial” and a “non-custodial” parent—
    and jettisons the freighted concept of “visitation”; instead, it favors an
    allocation of “custodial responsibility” approximating the division of
    child-rearing roles the parties had
    prior to the court’s intervention.
    56
    An
    explicit aim of this standard is to
    move away from the indeterminacy and
    potential bias of the “best interests” test, while preserving as much as
    possible of the routines and responsibilities both parents had crafted for
    themselves before their split.
    57
    Initially, joint custody was eagerly embraced by legislators and
    judges as a way of validating and encouraging the involvement of both
    parents.
    58
    Over time, its reception has become more mixed.
    59
    Some have
    criticized joint custody on the grou
    nd that it awards fathers rights
    without corresponding duties,
    60
    and that it has induced some mothers to
    cede property or support rights in exchange for sole custody.
    61
    And some
    56.
    See
    ALI P
    RINCIPLES
    ,
    supra
    note 54, § 2.09;
    see also
    id.
    at 9 (explaining that while “[t]he
    traditional ‘custody’ and ‘visitation’ terminology symb
    olize and help to perpetuate the adversarial,
    win-lose nature” of traditional
    custody law, “custodial responsibility” instead “expresses the
    ordinary expectation that both parents have mean
    ingful responsibilities for
    their child at divorce”).
    57. Thus, Katharine Bartlett, the reporter for
    the custody principles, has aptly described the
    ALI’s approach as “family enabling” rather than
    “family standardizing.” Katharine T. Bartlett,
    Saving the Family from the Reformers
    , 31 U.C.
    D
    AVIS
    L.
    R
    EV
    . 809, 818 (1998);
    see also
    Katharine
    T. Bartlett,
    Child Custody in the 21st Century: How the
    American Law Institute Proposes to Achieve
    Predictability and Still Protect the Individual Child’s Best Interests
    , 35 W
    ILLAMETTE
    L.
    R
    EV
    . 467,
    478-82 (1999); Melli,
    Shared-Parenting
    ,
    supra
    note 16, at 353-54.
    58.
    See
    James G. Dwyer,
    A Taxonomy of Children’s Existing
    Rights in State Decision Making
    About Their Relationships
    , 11 W
    M
    .
    &
    M
    ARY
    B
    ILL
    R
    TS
    .
    J. 845, 914-15 (2003). Katharine Bartlett
    and Carol Stack captured the sentiment, writing that
    “[u]nlike the ‘neutral’ best interests test or a
    primary caretaker presumption . . . rules [fa
    voring joint custody] promote the affirmative
    assumption that both parents should,
    and will, take important roles
    in the care and nurturing of their
    children.” Katharine T. Bartlett & Carol B. Stack,
    Joint Custody, Feminism and the Dependency
    Dilemma
    , 2 B
    ERKELEY
    W
    OMEN

    S
    L.J. 9, 32-33 (1986).
    59.
    See
    S
    ANFORD
    N.
    K
    ATZ
    ,
    F
    AMILY
    L
    AW IN
    A
    MERICA
    112 (2003); Carbone,
    supra
    note 11, at
    1115.
    60.
    See
    Karen Czapanskiy,
    Volunteers and Draftees: The Struggle for Parental Equality
    , 38
    UCLA L. R
    EV
    . 1415, 1415-16 (1991);
    see also
    Karen Czapanskiy,
    Interdependencies, Families, and
    Children
    , 39 S
    ANTA
    C
    LARA
    L.
    R
    EV
    . 957, 973-74 n.29 (1999).
    61. Studying Oregon divorce cases after the state
    amended its law to favor shared parenting,
    Margaret Brinig found that “the strengthening of
    the joint custody presumption in fact increased
    joint custody awards” and reduced child support awards.
    See
    Brinig,
    Parental Autonomy
    ,
    supra
    note
    16, at 1367-68.
    She observed: “Although I cannot say for su
    re whether wives disadvantaged by the
    new statute were trading money for child custody,
    it is perhaps significant that wives who are
    represented do better.”
    Id.
    at 1368;
    see also
    Melli,
    Shared-Parenting
    ,
    supra
    note 16, at 352-53
    (noting that use of joint custody has been critici
    zed “as an attempt to reduce the amount of child
    support by promising a commitment to share the care for the child which is either short-lived or
    disregarded completely”).
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    time “as possible”—unless the arrangement would put the child in
    “direct and imminent danger.”
    67
    The more extreme of these are unlikely to succeed, but support for
    “shared parenting” is clearly signi
    ficant, as evidenced by the recent
    enactments in some states. Taken together with the ALI’s movement
    toward the “approximation” appro
    ach toward allocating custodial
    responsibility, it is clear that the ro
    le of non-custodial parents—indeed,
    the very
    idea
    of “non-custodial” parents—is being fundamentally
    reconsidered.
    68
    III. C
    ONSTITUTIONAL
    C
    LAIMS OF
    N
    ON

    CUSTODIAL
    P
    ARENTS
    In addition to pressing their case in
    the legislatures, fathers—and
    some non-custodial mothers—are also demanding rights in court. In a
    substantial flurry of recent litigation,
    they have tried to bypass the need
    for lobbying and legislation by asser
    ting a constitutional entitlement to
    “shared parenting” and a more substan
    tial role in raising their children.
    The gist of these claims is straight
    forward: Going back to the 1920s
    in cases like
    Meyer v. Nebraska
    69
    and
    Pierce v. Society of Sisters
    ,
    70
    the
    Supreme Court has held that parent
    s have a fundamental constitutional
    right to raise their children without state interference.
    71
    Custody orders,
    public school policies, or other stat
    e action that sharply limit the child-
    rearing role of either parent, the ar
    gument goes, substantially burden that
    right, triggering strict judicial scrutiny. And, under strict scrutiny, the
    state must show some “compelling interest”—such as imminent harm to
    67.
    See
    Non-custodial Parent a
    nd Grandparent Organization,
    Proposed Amendment to the
    State of Michigan Constitution Promoting the Best
    Interests of the Child to Have Equal Access to
    Both Parents
    ,
    available at
    http://angelfire.com/az/ecpa/lawprop2.html.
    68.
    See, e.g.
    , Melli,
    Shared-Parenting
    ,
    supra
    note 16, at 349-50, 362 (noting that shared
    parenting already “may be the fastest growing po
    st-dissolution arrangement
    in the United States,”
    and that adoption of the ALI approximation standard
    “would probably result in an increase in shared
    parenting . . . .”); Parkinson,
    supra
    note 10, at 456-61. Parkinson surveys the “new legislative
    emphasis on shared parenting [in the United Stat
    es and other Western nations] and the equally
    profound changes in patterns of parenting after separation . . . .”
    Id.
    at 461.
    69. 262 U.S. 390 (1923).
    70. Pierce v. Soc’y of the Sisters of Ho
    ly Names of Jesus & Mary, 268 U.S. 510 (1925).
    71.
    See
    Troxel v. Granville, 530 U.S. 57,
    65 (2000) (observing that “[
    t]he liberty interest at
    issue in this case—the interest of parents in th
    e care, custody, and control of their children—is
    perhaps the oldest of the fundamental liberty intere
    sts recognized by this Court”). For discussions of
    the Constitution’s protection of parental ri
    ghts, see generally Emily Buss, Essay,
    “Parental” Rights
    ,
    88 V
    A
    .
    L.
    R
    EV
    . 635 (2002) [hereinafter Buss,
    “Parental” Rights
    ];
    Richard W. Garnett,
    Taking
    Pierce
    Seriously: The Family, Religious Education, and Harm to Children
    , 76 N
    OTRE
    D
    AME
    L.
    R
    EV
    . 109 (2000); Stephen G. Gilles,
    On Educating Children: A Parentalist Manifesto
    , 63 U.
    C
    HI
    .
    L.
    R
    EV
    . 937 (1996); G
    UGGENHEIM
    ,
    supra
    note 62, at 17-49; Francis Barry McCarthy,
    The Confused
    Constitutional Status and Meaning of Parental Rights
    , 22 G
    A
    .
    L.
    R
    EV
    . 975 (1988).
    M
    EYER
    F
    INAL
    2006]
    NON-CUSTODIAL PARENTS
    1475
    the child—to justify its intervention. Incantation of more amorphous
    interests, including the “best inte
    rests” of children, is insufficient.
    72
    The argument is doctrinally plausible, and has been endorsed by
    some academic commentators.
    73
    But it has found little success in the
    courts. Indeed, a survey of court d
    ecisions across a range of topics shows
    considerable reluctance to recogni
    ze constitutional rights on the part of
    non-custodial parents. In part, the poor success rate may reflect, as
    Nancy Dowd has suggested, entrenched
    stereotypes that denigrate and
    discount the parenting interests of fathers.
    74
    In addition, however, I
    believe that the courts’ reluctance
    to credit seriously the constitutional
    rights of non-custodial parents ultimately says something of broader
    significance about constitutional rights of family privacy generally,
    including the rights of custodial parents and parents in intact or “unitary”
    families.
    A. Unwed Fathers
    The area where the rights of fathers have been most directly
    recognized is the so-called “unwed
    father” cases. Before the 1970s,
    unmarried men had scant legal protection as parents.
    75
    They were highly
    unlikely to win custody in a battle
    with the mother; if she chose to
    surrender the child for adoption by others, the father had no right to
    72.
    See
    Don Fischer, Parenting as a Protect
    ed Constitutional Right, (Mar. 8, 2001),
    http://www.gocrc.com/constitution.html;
    see generally
    John C. Duncan, Jr.,
    The Ultimate Best
    Interest of the Child Enures from Parental
    Reinforcement: The Jour
    ney to Family Integrity
    , 83 N
    EB
    .
    L.
    R
    EV
    . 1240 (2005) (discussing constitutional prot
    ection of parental rights and proposing
    legislation to mandate strict scrutiny of
    any state action impairing parental rights).
    73.
    See
    Donald C. Hubin,
    Parental Rights and Due Process
    , 1 J. L. & F
    AM
    .
    S
    TUD
    . 123, 134
    (1999); Holly L. Robinson,
    Joint Custody: Constitutional Imperatives
    ,
    54 U.
    C
    IN
    .
    L.
    R
    EV
    . 27
    (1985); James W. Bozzomo, Note,
    Joint Legal Custody: A Parent’s Constitutional Right in a
    Reorganized Family
    , 31 H
    OFSTRA
    L.
    R
    EV
    . 547 (2002); Ellen Canacakos, Note,
    Joint Custody as a
    Fundamental Right
    , 23 A
    RIZ
    .
    L.
    R
    EV
    . 785 (1981).
    74.
    See
    Dowd,
    Fathers and the Supreme Court, supra
    note 13, at 1271;
    see also
    Gloria Chan,
    Comment,
    Reconceptualizing Fatherhood: The Stakes Involved in
    Newdow, 28 H
    ARV
    .
    J.L.
    &
    G
    ENDER
    467, 468 (2005) (contending that
    Newdow
    “reflects a failure to acknowledge that fathers
    may indeed have important emoti
    onal connections with their child
    ren and reinforces the general
    sense that nonresident fathers are ‘important for their money but for little else’”); Linda Kelly,
    The
    Alienation of Fathers
    , 6 M
    ICH
    .
    J.
    R
    ACE
    & L. 181, 183 (2000) (contending that “[t]he reduction of a
    father’s parenting role to a financ
    ial obligation as represented by [
    Miller v. Albright
    , 523 U.S. 420
    (1998),] affirms the marginalization of unwed fa
    thers otherwise endorsed by the Court in the
    immigration context.”). Certainly, as Richard St
    orrow has pointed out, this
    would not be the only
    instance in which stereotypes have
    shaped the boundaries of the Court’s protection of family
    privacy.
    See
    Richard F. Storrow,
    The Policy of Family Privacy: Un
    covering the Bias in Favor of
    Nuclear Families in American Constitutional Law and Policy Reform
    , 66 M
    O
    .
    L.
    R
    EV
    . 527 (2001).
    75.
    See
    David D. Meyer,
    Family Ties: Solving the Constitutional Dilemma of the Faultless
    Father
    , 41 A
    RIZ
    .
    L.
    R
    EV
    . 753, 758 (1999) [hereinafter Meyer,
    Family Ties
    ].
    M
    EYER
    F
    INAL
    1476
    HOFSTRA LAW REVIEW
    [Vol. 35:1461
    object;
    76
    and if she died, the state could assume custody of her children
    as if they were parentless.
    77
    The Supreme Court significantly changed the status of unwed
    fathers, however, in a series of d
    ecisions in the 1970s and 1980s. In
    1972, in
    Stanley v. Illinois
    ,
    78
    the Court held that an unmarried father who
    had lived with his three children and their mother was constitutionally
    entitled to be recognized as a “parent” in deciding the children’s
    placement upon her death.
    79
    At the time, Illinois law did not regard the
    fathers of “illegitimate children” as legal parents.
    80
    Consequently, “the
    children of unwed fathers [became] wards of the State upon the death of
    the mother.”
    81
    Peter Stanley, who had lived together with Joan Stanley
    off and on for eighteen years without marrying, thus lost custody of his
    three children when she died. The Supr
    eme Court, however, held that the
    Due Process Clause did not permit Illinois’ categorical disregard of
    unmarried fathers. At least some unwed fathers, the Court noted, “are
    wholly suited to have custody of their children,”
    82
    and Peter Stanley, like
    “all Illinois parents[,] [was] constitutionally entitled to a hearing
    on . . . [his] fitness” before his children could be removed from his
    care.
    83
    Seven years later, in
    Caban v. Mohammed
    ,
    84
    the Court held that
    New York could not permit the adoption of an unmarried father’s
    children by another man without first obtaining his consent or proving
    his unfitness, as was required for married parents.
    85
    These were important victories in giving constitutional protection to
    the parenting interests of non-custodial parents. And, yet, the victories
    were also importantly qualified. Firs
    t, only some unwed fathers qualified
    for constitutional protection.
    86
    In other cases, unwed fathers who had
    76.
    See
    Caban v. Mohammed, 441 U.S. 380, 390 n.8 (1979).
    77.
    See
    Stanley v. Illinois,
    405 U.S. 645 (1972).
    78.
    See id.
    79.
    Id
    . at 658.
    80.
    Id.
    at 649-50. Under then-governin
    g Illinois law, “‘[p]arents . . . means the father and
    mother of a legitimate child, or
    the survivor of them, or the na
    tural mother of an illegitimate
    child’ . . . but the term does not include unwed fathers.”
    Id.
    at 650 (quoting Ill. Rev. Stat., c.37,
    § 701-14 (1972)).
    81.
    Id.
    at 646.
    82.
    Id.
    at 654.
    83.
    Id.
    at 658.
    84. 441 U.S. 380 (1979).
    85.
    See id.
    at 394. The Court had previously held that married or divorced fathers are
    constitutionally entitled to object to the adoption of their children.
    See
    Armstrong v. Manzo, 380
    U.S. 545 (1965).
    86.
    See
    D
    OWD
    , R
    EDEFINING
    F
    ATHERHOOD
    ,
    supra
    note 4, at 98-105; Dowd,
    Fathers and the
    Supreme Court, supra
    note 13, at 1297-1307; Meyer,
    Family Ties
    ,
    supra
    note 75, at 760-66; Laura
    Oren,
    The Paradox of Unmarried Fathers and th
    e Constitution: Biology ‘Plus’ Defines
    M
    EYER
    F
    INAL
    2006]
    NON-CUSTODIAL PARENTS
    1477
    never had custody of their children, and had never “come forward to
    participate in the rearing” of their
    children, were deemed to fall outside
    the scope of the Constitution’s concern.
    87
    The only fathers who prevailed
    had at least formerly been custodial parents. Peter Stanley had always
    lived with his children; and Abdiel
    Caban had lived with his children for
    four years before their mother left him and married another man.
    88
    Indeed, partly for this reason, Kathar
    ine Baker contends that “the most
    important factor in determining whet
    her a genetic father will be entitled
    to constitutional protection of his pare
    ntal rights is his relationship with
    the mother.”
    89
    Unwed fathers prevail, she notes, where the evidence
    suggests an implicit agreement with th
    e child’s mother to share parental
    rights.
    90
    And, second, the only constitutional entitlement recognized in these
    cases was to preserve the status quo of parental status: Stanley got to
    remain with his children, as before;
    Caban got to veto the stepfather’s
    adoption and thereby preserve his status as a non-custodial parent. The
    unwed father cases do
    not, however, expressly recognize an entitlement
    to any particular subs
    tantive parenting role.
    B. Equal Custody
    Where litigants have sought to establish more specific custodial
    prerogatives as a matter of constitutio
    nal right, they have made little
    headway. Most of the recent class-action lawsuits claiming a right to
    shared parenting have been poor
    ly crafted and have failed on
    jurisdictional, immunity, or abst
    ention grounds. In federal court,
    claimants who challenged the constitutionality of their state-court
    custody orders have foundered on the
    Rooker-Feldman
    doctrine, which
    bars “lower federal courts . . . fro
    m exercising appellate jurisdiction over
    Relationships; Biology Alone Safeguards the Public Fisc
    , 11 W
    M
    .
    &
    M
    ARY
    J.
    W
    OMEN
    & L. 47, 50-
    70 (2004).
    87. Lehr v. Robertson, 463 U.S. 248, 267-68 (1983) (quoting
    Caban
    , 441 U.S. at 392);
    see
    also
    Quilloin v. Walcott, 434
    U.S. 246, 252-53 (1978).
    88.
    See Stanley
    , 405 U.S. at 650 n.4;
    Caban
    , 441 U.S. at 382.
    89. Katharine K. Baker,
    Bargaining or Biology?: The History and Future of Paternity Law
    and Parental Status
    , 14 C
    ORNELL
    J.
    L.
    &
    P
    UB
    .
    P
    OL

    Y
    1, 34 (2004);
    see also
    Dowd,
    Fathers and the
    Supreme Court
    ,
    supra
    note 13, at 1306-07 (stating that “the Court’s cases arguably require that
    unwed fathers cannot trigger constitutional pr
    otection unless they share a household for a
    considerable period of time with the mother and
    child, either because the C
    ourt is more comfortable
    with a marital-type relationship between the parents, or requires the opportunity for presumed
    conduct of parental nurture of the children”).
    90.
    See
    Baker,
    supra
    note 89, at 34-35.
    M
    EYER
    F
    INAL
    1478
    HOFSTRA LAW REVIEW
    [Vol. 35:1461
    final state-court judgments.”
    91
    Class actions seeking damages from state
    governments for alleged deprivations of
    parental rights have failed on
    grounds of the states’ immunity from suit under the Eleventh
    Amendment.
    92
    About the most substantial victory that can be claimed
    from this round of class actions is dictum in a Sixth Circuit opinion,
    otherwise affirming dismissal of the lawsuit, allowing that the complaint
    raised “very interesting constitutional questions.”
    93
    Yet, when lawsuits have been
    properly framed and courts have
    managed to reach the merits of t
    hose questions, non-custodial parents
    still lose. In
    Arnold v. Arnold
    ,
    94
    for example, a father appealed a custody
    order awarding him only 102 days per year with his children, rather than
    a perfectly equal split of 182.5 days per year. He argued that the state’s
    discretionary custody “statutes violate due process because they
    deprive[d] him a fundamental liberty interest in equally participating in
    the raising of his children.”
    95
    The Wisconsin Court of Appeals,
    however—like other courts hearing similar claims—ruled that the
    Constitution’s protection of parental rights was simply inapplicable in a
    custody dispute between two “natural parents.”
    “[W]hile parents do have a natural
    right to care and custody of their
    children,” the
    Arnold
    court concluded, “this does not mean that parents
    have a ‘fundamental right’ to ‘equal
    placement periods’ after divorce.”
    96
    The reason,
    Arnold
    and other courts have suggested, is that a mediating
    role by the state is necessary to resolve what otherwise would be a
    91. Lance v. Dennis, 126 S. Ct. 1198, 1201 (2006);
    see, e.g.
    ,
    Puletti v. Patel, No. 05 CV
    2293(SJ), 2006 WL 2010809, at *5 (E.D.N.Y. July 5, 2006) (dismissing shared-parenting action on
    Rooker-Feldman
    grounds); Chapman v. Oklahoma, No. 04-CV-0722-CVE-PJC, 2006 WL 288102,
    at *2-3 (N.D. Okla. Feb. 6, 2006) (same);
    see also
    Hoblock v. Albany County Bd. of Elec., 422 F.3d
    77, 87 (2d Cir. 2005) (sta
    ting in dictum that a parent’s cons
    titutional challenge to a state court’s
    deprivation of parental
    rights would be barred by
    Rooker-Feldman
    ). The
    Rooker-Feldman
    doctrine,
    named for the Supreme Court’s decisions in
    Rooker v. Fid. Trust Co.
    , 263 U.S. 413, 416 (1923), and
    District of Columbia Court of Appeals v. Feldman
    , 460 U.S. 462, 462 (1983), is founded on the
    rationale that only the U.S. Supreme Court has juri
    sdiction to review the judgments of state courts.
    See Lance
    , 126 S. Ct. at 1200-01.
    92.
    See, e.g.
    ,
    Ammann v. Connecticut, No. 3:04CV1647, 2005 WL 465401, at *1 & n.2 (D.
    Conn. Feb. 10, 2005) (dismissing complaint on Eleventh Amendment grounds and collecting
    citations to dismissals of other,
    similar actions in other courts);
    Puletti
    , 2006 WL 2010809, at *7-8
    (holding that claim for damages for denial of cu
    stody rights is barred by Eleventh Amendment).
    93.
    See
    Galluzzo v. Champaign Cty. Ct. of Comm.
    Pls., 168 F. App’x. 21, 23 (6th Cir. 2006).
    94. 679 N.W.2d 296 (Wis. Ct. App. 2004),
    rev. denied
    , 679 N.W.2d 547 (Wis. 2004),
    cert.
    denied
    , 543 U.S. 873 (2004).
    95.
    Id.
    at 298.
    96.
    Id.
    at 299 (footnote omitted);
    accord
    Lofthus v. Lofthus, 678 N.W.2d 393, 397-98 (Wis.
    Ct. App. 2004); Lawson v. Reynolds, No. S-10053, 2002 WL 1486484, at *9-10 (Alaska July 10,
    2002).
    M
    EYER
    F
    INAL
    2006]
    NON-CUSTODIAL PARENTS
    1485
    protection might be tied to the family as an entity.
    139
    As Judge Posner
    noted,
    Meyer
    and
    Pierce—
    as well as
    Griswold v. Connecticut
    ,
    140
    Loving
    v. Virginia
    ,
    141
    and similar cases vindicating rights of “family privacy”—
    each proceeded on the assumption that all family members stood
    together in opposing the state’s intervention.
    142
    Perhaps the non-
    custodial parent, as the “odd man out”
    of the reformulated family unit,
    simply moves outside the circle of privacy protection.
    Yet, a view of “family privacy” limited exclusively to the family
    entity cannot be squared with much of the Supreme Court’s
    jurisprudence, particularly since
    Eisenstadt v. Baird
    143
    recharacterized
    privacy as “the right of the
    individual
    , married or single, to be free from
    unwarranted governmental intrusion”
    144
    into profoundly personal
    decisions.
    145
    Another possible justification for denying rights to non-custodial
    parents—similar but distinct from th
    e focus on the family as an entity—
    might be traced to a view that anchors parental rights in an assessment of
    their utility to children. Emily Buss
    and Elizabeth Scott, for instance,
    each have advanced compelling child-c
    entered conceptions of parental
    rights that justify strong protection of parental prerogative on the ground
    that parental autonomy serves child
    welfare by encouraging greater
    parental investment in childrearing.
    146
    In a somewhat different vein, scholars such as Anne Dailey and
    Linda McClain have emphasized the
    role of parental autonomy in
    fostering the capabilities of children as future democratic participants.
    147
    As Justice Rehnquist once wrote:
    139.
    See
    Martha Albertson Fineman,
    What Place for Family Privacy?
    , 67 G
    EO
    .
    W
    ASH
    .
    L.
    R
    EV
    .
    1207, 1211-12 (1999) [hereinafter Fineman,
    Family Privacy
    ].
    140. 381 U.S. 479 (1965).
    141. 388 U.S. 1 (1967).
    142.
    See Crowley
    , 400 F.3d at 968-69.
    143. 405 U.S. 438 (1972).
    144.
    Id.
    at 453.
    145.
    See generally
    Janet L. Dolgin,
    The Family in Transition: From
    Griswold
    to
    Eisenstadt
    and Beyond
    , 82 G
    EO
    .
    L.J. 1519 (1994); Anne C. Dailey,
    Constitutional Privacy and the Just Family
    ,
    67 T
    UL
    .
    L.
    R
    EV
    . 955, 976-77 (1993) [hereinafter Dailey,
    Constitutional Privacy
    ]; Fineman,
    Family
    Privacy
    ,
    supra
    note 139, at 1212-13.
    146.
    See
    Buss,
    “Parental” Rights
    ,
    supra
    note 71, at 636, 647-50; Elizabeth S. Scott,
    Parental
    Autonomy and Children’s Welfare
    , 11 W
    M
    .
    &
    M
    ARY
    B
    ILL OF
    R
    TS
    .
    J. 1071, 1072-73 (2003);
    Elizabeth S. Scott & Robert E. Scott,
    Parents as Fiduciaries
    , 81 V
    A
    .
    L.
    R
    EV
    . 2401, 2414-18 (1995).
    147.
    See
    L
    INDA
    C.
    M
    C
    C
    LAIN
    ,
    T
    HE
    P
    LACE OF
    F
    AMILIES
    :
    F
    OSTERING
    C
    APACITY
    ,
    E
    QUALITY
    ,
    AND
    R
    ESPONSIBILITY
    42-43, 66-71 (2006); Anne C. Dailey,
    Developing Citizens
    , 91 I
    OWA
    L.
    R
    EV
    .
    431 (2006); Dailey,
    Constitutional Privacy
    ,
    supra
    note 145, at 958-60.
    M
    EYER
    F
    INAL
    2006]
    NON-CUSTODIAL PARENTS
    1495
    and obscure the parties’ consideration of their own responsibilities and
    the value of informal accommodation—to the obvious detriment of their
    children.
    202
    But the magnitude of the most likely harms—promoting
    conflict between parents or causing a child to endure an ill-advised joint
    physical custody arrangement
    203
    —depends partly upon the degree to
    which recognizing constitutional rights w
    ill strip courts of their ability to
    safeguard children’s interests. Unlike
    a rigid strict scrutiny approach, the
    more flexible review I envision—a review I believe the courts
    already
    engage in—would leave room to avoid such results, just as
    Troxel
    contemplates that judges will continue
    to be able to order visitation
    where necessary to preserve relationships that are unusually important to
    the child.
    Nor do I think recognizing these rights would be unduly
    burdensome for the courts. The
    Rooker-Feldman
    doctrine, among other
    obstacles, would continue to limit lo
    wer federal court review, and it is
    important to see that courts, to a si
    gnificant degree, are already in the
    business of resolving these claims. It is only that today they resolve
    these claims by adjusting the bou
    ndaries of constitutional protection
    rather than reviewing the reasonableness of the challenged state action.
    V. C
    ONCLUSION
    In closing, let me be clear that I actually share the wariness of many
    scholars about the further “constitutionalization” of family law.
    204
    Its
    benefits are often modest, and the costs can be significant. But my
    concern is that, in a very real sense,
    we are already there. Having already
    injected rights talk into family law and custody disputes, we have no
    better alternative than to see
    the process through. Stopping short—
    recognizing “family privacy” rights only in custodial parents, or only in
    traditional families, or only where parents do not disagree about their
    childrearing preferences—leaves the
    Constitution as a distorting force in
    family law, while substantial family in
    terests are left at the mercy either
    202.
    See
    M
    ARY
    A
    NN
    G
    LENDON
    ,
    R
    IGHTS
    T
    ALK
    :
    T
    HE
    I
    MPOVERISHMENT OF
    P
    OLITICAL
    D
    ISCOURSE
    (1991); Clare Huntington,
    Rights Myopia in Child Welfare
    , 53 UCLA
    L.
    R
    EV
    . 637, 639-
    40 (2006) (criticizing a focus on righ
    ts in the context of child welf
    are law and warning that “rights
    will never be the primary way to produce good resu
    lts for families because the rights-based model
    creates, or at least perpetuates, an advers
    arial process for decisionmaking”); Schepard,
    supra
    note
    149, at 735 (discussing detriment to childre
    n from post-divorce c
    onflict and litigation).
    203.
    See
    Brinig,
    Parental Autonomy
    ,
    supra
    note 16, at 1369.
    204.
    See, e.g.
    ,
    id.
    ; G
    LENDON
    ,
    supra
    note 202; Carl E. Schneider,
    State-Interest Analysis in
    Fourteenth Amendment “Privacy” Law: An E
    ssay on the Constitutionalization of Social Issues
    , 51
    L
    AW
    &
    C
    ONTEMP
    .
    P
    ROBS
    . 79 (1988).
    M
    EYER
    F
    INAL
    1496
    HOFSTRA LAW REVIEW
    [Vol. 35:1461
    of state actors or of other family members who are accorded
    constitutional privilege.
    Child custody should not be primarily about the rights of parents.
    My hope is that acknowledging right
    s in non-custodial parents would
    help to usher in the ultimate realiza
    tion that the best the Constitution can
    ever do in the realm of family privacy is to require sensitivity in
    balancing the interests of all.

  • Yup, good stuff relating to the US Constitution. However, many don’t realize that there have been recent Supreme Court Decisions, that have actually reduced Parental Rights.. and yes, in essence, overridden many of the previous decisions.
    Get up to date, support and go to the website of Parent Rights Organization, especially the comments on the UN Proposals.
    Link: http://www.parentalrights.org/

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