Be Prepared to Advocate for Parental Rights – Even though they are Constitutionally Protected

This guest blog post is offered by Erin McDaniel, Regent Law 3L and current Family Law student:

While it may seem like a given that parents have a constitutionally protected liberty interest in directing the upbringing of their children, there seems to be a trend in state courts to substitute the court's determinations of the child's best interest, for the parents' wishes.

In Meyer v. Nebraska (1923) and Pierce v. the Society of Sisters (1925) the Supreme Court declared this liberty interest to be a fundamental right protected by the United States Constitution.  The Court affirmed this liberty interest as recently as 2000 in Troxel v. Granville, when it declared that when a court conducts a best interest analysis over the expressed wishes of the parent, it places the court's judgment over the parent's constitutional rights.  Unfortunately, many Juvenile and Domestic Relations judges, believing that they are doing the right thing, are quick to disregard the parent's wishes in favor of the courts independent judgment of what is in the child's best interest.  It is very disturbing to see this happen in any custody case. 

Anytime the court conducts a best interest of the child analysis, even though it is guided by a number of factors dictated by state law, it necessarily involves a great deal of discretion on the part of the judge.  In other words, the judge exercises broad discretion to determine what is best for a child that he or she may have never even met.  A guardian ad litem is often appointed to interview the child on multiple occasions, investigate the circumstances of the custody dispute, and advocate for the child in court.  But ultimately, the person with total control over the custody determination, the person who is solely responsible for determining the best interest of the child, is the judge.  Ironically, of all the people sitting in a courtroom during a custody case, that judge is the person with the least personal knowledge of the child.  To understand this further read Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence.

As a practitioner of family law, it is important to be prepared to zealously advocate for and protect the right of parents to direct the upbringing of their children.  Do not take for granted that the court system will fully understand and respect the primacy of parental rights.  Lawyers must educate clients and the tribunal who refuse to protect this fundamental liberty interest if we want to stop the interference of the state with this most sacred duty and right.