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  • Writer's pictureStephen Williams

Has the Supreme Court Ever Ruled on Child Custody Issues?

Yes, and it’s a good thing they have. The United States Constitution doesn’t explicitly say a darn thing about Child Custody. So, like other non-enumerated rights now deemed to be and taken for granted as fundamental, it took “common law” rulings of the Courts to firmly establish your right to raise your children as the law of the land as opposed to simple pattern and practice subject to government intervention.

As you might imagine, the basis for Alabama law on Child Custody issues, like other significant legal issues, has trickled down from the highest Court in the land. Sometimes we get so caught up in “hot button” SCOTUS decisions that we forget that they’ve made several decisions about issues we take for granted that affect us everyday.

Meyer v. Nebraska, (1923) – Fundamental Right to Custody

This case, the reasonably short original ruling of which can be found here, was actually about whether or not a grade school teacher in Nebraska could be prohibited by state law from teaching children the German language.

The important portion, for our purposes, was when the Court stated that the right to “establish a home and bring up children” is protected by the 5th and 14th Amendments of the U.S. Constitution.

According to Westlaw™ Key Number System, this is the oldest SCOTUS case that discusses and or establishes the Parent-Child Relationship as a fundamental right free from state and federal government intrusion without due process of law.

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Santosky v. Kramer, (1982) – Burden by “Clear and Convincing Evidence”

Ever heard of proof “beyond a reasonable doubt?” Think it’s important that your government meet a high burden before taking your children? Before the Supreme Court opinion in Santosky v. Kramer, found here, the government only had to prove by a “preponderance of the evidence,” i.e., more likely than not, i.e., 51%, that a parent’s performance is beyond repair and it’s in the best interests of a child for parental rights to be terminated.

Thanks to Santosky v. Kramer, the burden for the government to take away your children and or terminate your parental rights is the second highest burden of proof known in the law. It’s called “clear and convincing evidence,” and it’s second only to the “beyond a reasonable doubt” standard applied before we put folks in cages.

Troxel v. Granville, (2000) – The Grandparent Visitation Case

The first two cases mentioned here discussed government infringement of Child Custody and parental rights. In Troxel v. Granville, ruling here, the highest Court in the land discussed parents’ rights against other family members, i.e., this is the “Grandparent Visitation” case.

In the case, the State of Washington allowed non-parents to seek court-ordered visitation over the wishes of a fit, custodial parent. Justice O’Connor wrote, over vehement dissent, that there is a presumption that “fit” parents act in the best interests of their children.

I can’t overstate the importance of this case because it firmly establishes the subtle legal distinction in Child Custody cases between a burden of proof, as discussed in Santosky, and a presumption

What the heck does that mean for us, both legally and practically?

A presumption acts to break up a legal analysis into separate steps. If it was just about the burden of proof then DHR and certainly a bunch of grandparents, aunts, uncles and other Caring Relatives might be able to routinely prove that children are “better off” with someone besides the parents. However, the presumptiondiscussed in Troxel establishes a 2-step process, (1) prove parental unfitness, (2) weight burden and best interests of the child. The Courts don’t even get to a “best interests” analysis until parental unfitness is proved by our aforementioned “clear and convincing evidence.”

Imagine if Rich Uncle Billy could put all the kids in the family into Randolph and through Harvard but Mom and Dad won’t be able to afford Calhoun so Junior will have to get his GED and begin plying his trade. Our society, as well it should, accepts this latter scenario as an honest, honorable and fit option for Junior.

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The ruling in Troxel captures this sentiment and provides an extra layer of protection for your fundamental right to raise your child, not only against your government through DHR but also against non-parent family members and private citizens.

(Note: As we’ve discussed, Grandparent Visitation is still a thing, but it is highly regulated.)


There you have it. Whether you’re a parent from New York City to Southern California and North Alabama, the Supreme Court of the United States has established that you (1) have a fundamental, constitutional right to raise your children, (2) that your government via DHR or CPS must prove “unfitness” by “clear and convincing evidence” to infringe on that right and (3) those rights hold up against private citizens and extended family as well as against DHR.

The law is on your side. So don’t let anyone tell you any different.

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