By DEACON MIKE MANNO, JD
A case came across my desk the other day that reminded me of an op-ed I wrote for The Des Moines Register some twenty-five years ago.
In the op-ed I defended a controversial decision of the Iowa Supreme Court in a custody dispute between the child’s “adoptive” parents and her biological father. The gist of the case involved the efforts of an unmarried father to obtain custody of his child given up for adoption without notification to him.
The “adoptive” family had custody of the infant pending adoption proceedings in which the father intervened when he was finally notified of the action. The court found the adoption proceeding flawed and ordered that the child be given to the father. The family refused, took the child out of state, and continued a legal battle over the child for several years. Ultimately, the Iowa Supreme Court ruled for the father, ending the child’s exile.
Naturally the press played the issue as that of ripping a toddler from the only home she knew and chastised the court for not acting in the child’s “best interest.” My op-ed supporting the decision appeared May 17, 1995; May 25 the paper was filled with letters to the editor, none of which supported my position. I even got a phone call from my mother wanting me to remind my readers that I did not speak for all Mannos!
Here is the key excerpt from that article:
“Let’s start from a position in which we can all agree: It is socially desirable and legally expedient that, absent a showing of unfitness, a child’s biological parent should have custody. If, for compelling reasons, the state determines the parent unfit, the state may terminate the parent-child relationship and place the child for adoption.
“If that is an acceptable proposition, then by necessity the best interest of the child rule does not apply unless there is first a finding of unfitness. If the rules were reversed and the best interest rules were considered first, any prospective adoptive parent could litigate custody simply by making the claim that the child would be better off with him.”
The legal point I was making, which apparently fell on many deaf ears, was simply this: God-given parental rights should not be infringed upon unless there is a clear showing that there is a deficiency in the parent which renders his ability to parent compromised. Thus the child’s best interest is always with the parent unless some unfitness is shown, then, and only then, do we consider remedial action that is in the child’s best interest.
That is the ruling by state courts around the country: “When a nonparent is seeking some sort of access to the child, due process requires the first step to be proof of parental unfitness, supported by strong evidence. Without this first step, the court’s substitution of its judgment for that of the parent can irreparably harm the parent-child relationship,” as argued by the Parental Rights Foundation it its amicus brief to the Texas Supreme Court in the case that caught my attention.
Here, in brief form, are the facts of that case: Mom and Dad had a child. Later Mom and Dad divorced. In the divorce decree the court found that both parents were fit and ordered joint custody with primary physical custody to Mom. Mom later moves in with her boyfriend, they get engaged, and shortly thereafter she is killed in an automobile accident. The child then goes to Dad.
Mom’s boyfriend appeals and, over Dad’s objections, is given joint custody of the child with Dad and given shared physical custody with him.
And that decision was upheld by the Texas Court of Appeals. Dad took it to the State Supreme Court which held oral arguments last month. A decision is pending.
What should be the standard here is what I said in 1995, but alas, I’m not a judge and I don’t issue binding precedents. The Supreme Court, however, does and in 2000 it issued what should be the controlling decision in Troxel v. Granville. In that decision the court upheld parental rights thusly: “So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children (citations omitted).”
In that case the court was dealing with a single mother who wanted to limit visitations with the paternal grandparents. The Supreme Court took issue with a Washington State judge who had opined, “I think [visitation with the Troxels] would be in the best interest of the children and I haven’t been shown it is not in [the] best interest of the children.” That, it said, put the wrong issue first and placed an affirmative burden on the parent to disprove the claim that extended visitation was in the child’s best interest, without making any determination on the fitness of the parent.
Interestingly, the current Texas case began with the maternal grandparents suing Dad for visitation under the state’s grandparent visitation statute, even though Dad had never indicated that he would deny visitation. That case was dismissed after the court determined that the grandparents lacked standing to sue. “Standing” simply means that the party bringing the lawsuit has a sufficient legal stake in the matter. Here the grandparents did not.
However, the boyfriend’s case was seen differently. While he lived with Mom for about 10 months prior to her death, and she shared custody with Dad, the court ruled that having lived with the child for over six months he did have standing — my guess is as a stalking-horse for the grandparents — and ultimately awarded him joint custody with Dad, who has never been found to be anything other than a fit parent.
Are we confused yet? Well, you should be.
In Troxel, Justice Clarence Thomas, in a concurrence, agreed with the decision and the court’s recognition of the fundamental rights of parents to direct the upbringing of their children. However, he suggested a more encompassing standard:
“The opinions of the plurality…recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest — to say nothing of a compelling one — in second-guessing a fit parent’s decision regarding visitation with third parties.”
Strict scrutiny is the most stringent standard of judicial review. In determining constitutionality of an action it must be shown that it is necessitated by a “compelling state interest” and is “narrowly tailored” to achieve that interest by using the “least restrictive means” possible.
We are in an era where parental rights are being compromised by individuals and entities who claim a superior right of access to our children. One only need review the legion of cases in which schools foist unorthodox views of sexuality on their students, or cases of overreach by agencies disrupting families under the belief that the parents could do better only if the local illuminati could instruct them properly.
Hopefully the Texas Supreme Court will see through all this folderol and strike a blow for strong parental rights — and for Dad.
(You can reach Mike at DeaconMike@q.com, and listen to him Thursday mornings on IowaCatholicRadio.com.)
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