The Not-So-Fundamental Rights of Fathers

 

    This guest post is from Peter Hunter, Regent Law Family Law student:

 

Parental rights are not among those enumerated in the United States Constitution. Rather, the Supreme Court, as early as the 1920s, stated that the right of parents to direct the upbringing of their children is a fundamental right protected by Fourteenth Amendment substantive due process. And the Fourteenth Amendment’s Equal Protection Clause, one would think, reinforces this fundamental parental right by ensuring that all parents, regardless of sex or gender, are treated the same in the eyes of the law. But the Court has gone to painstaking lengths to distinguish between parents of one type or another. Specifically, the Court has determined parental rights on the basis of sex without compelling justification.

Despite obvious physical distinctions between mothers and fathers that could be relied on, for the purpose of demonstrating that the parties are not similarly situated under an equal protection analysis—e.g., that mothers give birth to and nurse their children—the Court has instead created second-class categories of fathers.

“Putative fathers,” says the Court, are not necessarily entitled to the fundamental right of parenthood. In Michael H. v. Gerald D., 491 U.S. 110 (1989), Justice Scalia relied on history and tradition to arrive at the conclusion that only certain fathers were deserving of the fundamental right of to direct the upbringing of their children. And while such an assertion, if at least rooted in the best interest of the child, could perhaps be justified, Justice Scalia acknowledged that the Court “do[es] not [always] inquire whether leaving a child with his parent is ‘in the best interests of the child.’ It sometimes is not.” See Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013) (J. Scalia dissenting).

Only by affording all parents equal protection under the law, without regard to their gender or sex, can preconceived notion of parental fitness be eliminated and the best interests of vulnerable children truly be served. Just as King Solomon relied on an individualized determination of maternal fitness before awarding custody, 1 Kings 3:16-28, so too should the courts engage in individualized paternal fitness determinations. Unfortunately, maternal preference—the tender years doctrine, whereby mothers are presumed to be better suited to care for their children—continues to persist, even if only in the subconscious history and tradition that so characterizes the Court’s tailoring of fundamental rights.