It is a well-established constitutional principle protected as fundamental that parents have the right to direct the upbringing of their children.[1] Those parental rights are guaranteed until the parent has been shown to be unfit by clear and convincing evidence of abuse, neglect or abandonment,[2] and his or her parental rights have been terminated.[3] Indeed, a fit parent is presumed to be acting in the best interests of his child.[4]
This constitutional protection of parental rights is balanced by the parental duty to provide for their children, and as the lawful guardians of their children are entitled to protect, train, direct, and speak for their children.[5] While these constitutionally protected parental rights are not absolute,[6] parental rights were “derived from. . . their duty; this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it.”[7]
And while the Constitution of the United States does not explicitly mention parents’ rights, nevertheless, American courts have long recognized that parents are entitled to very broad latitude in raising their children,[8] the High Court stating, “[t]he liberty interest at issue []—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court,”[9] emphasizing heavily the presumption of the parent’s “fundamental right to make decisions concerning the care, custody, and control of her [children],” thus preceding any discussion or analysis of the best interests of the child.[10]
Protection of parental
rights is the first line of defense for a child’s best interests, and the last
line of resistance and protection against government control of children and
families. Parental rights protections serve children’s best interests.
[1] See Meyer v. Nebraska, 262 U.S. 390 (1923)(holding unconstitutional a Nebraska law that prevented parents from allowing their children to learn German despite the state’s policy otherwise); Pierce v. Society of Sisters, 268 U.S. 510 (1925)(holding that parental choice of an appropriate education for their children is a constitutional right and liberty interest under the constitution); Troxel v. Granville, 530 U.S. 57 (2000)(holding that state law cannot grant visitation to any third party against a fit parent’s objection).
[2] See Santosky v. Kramer, 455 U.S. 745 (1982)(first setting out that standard).
[3] See Termination of Parental Rights, Child Welfare Information Gateway
(2016), at https://www.childwelfare.gov/topics/systemwide/courts/processes/legal-issues-in-adoption/termination/.
Family reunification is the state’s persevering objective, and termination of
parental rights is a remedy of last resort. Id.
[5] See generally
Lynne Marie Kohm, Tracing the
Foundations of the Best Interests of the Child Standard in American
Jurisprudence, 10 J. L. Fam. Stud. 337, 354, 359 (2008).
The guardianship relationship is grounded in the reality that children are born
completely incompetent and dependent, and mature in a slow process over the
course of many years. Id.
[6] See Prince v. Massachusetts, 321 U.S. 158 (1944) (curtailing those
rights by prohibiting child labor).
[7] William
Blackstone, Commentaries on the Laws of England 447.
[8] 530 U.S. 57 (2000).
[9] Id. at 65.
[10] Id. at 68, 72. For a comprehensive review of how case law has
affected, established, and molded a new order of family law see David Wagner, The Family and American Constitutional Law,
1 Life, Liberty & Fam. 145
(1994).
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