Constitutional Limitations On Family Court Authority To Override Parental Decision Making (December 1999)
Material for South Carolina Bench/Bar Judicial Legal Education Seminar, December 1999
Note: Subsequent to this lecture both the United States and South Carolina Supreme Courts issued opinions that grandparent visitation statutes were unconstitutional to the extent that such statutes allowed family courts broad discretion to award a grandparent visitation over a fit parent’s objection. See Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003). Camburn noted that “[b]efore visitation may be awarded over a parent’s objection, one of two evidentiary hurdles must be met: the parent must be shown to be unfit by clear and convincing evidence, or there must be evidence of compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest.” Such decisions were anticipated by this material. In Marquez v. Caudill, 376 S.C. 229, 249, 656 S.E.2d 737, 747 (2008), the South Carolina Supreme Court affirmed an award of visitation to a maternal grandmother whose daughter was deceased ruling that “a biological parents death and an attempt to maintain ties with that deceased parents family may be compelling circumstances justifying ordering visitation over a fit parents [sic] objection.” To date, no South Carolina or United States Supreme Court opinion has adopted the requirement set forth in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993) that harm must be shown before the state can interfere in a fit parent’s decision making.
The government’s authority (through the courts) to determine, over a parent’s objection, the “best interests of the child,” is awesome, almost frightening. This issue has profound implications for liberal constitutional democracy, going to the heart of the tension between societal norms and parental authority. Yet it is rarely addressed in case law or statute.
Federal and state constitutional provisions act as a restraint on the state’s authority to override parental decision making. The United States Supreme Court has found that the 14th Amendment to the United States Constitution gives parents a constitutionally protected liberty interest in raising their children. A few state supreme courts have interpreted their own constitutions’ privacy provision as giving parents additional protections against state intrusion into parental decision making. Since South Carolina has its own privacy provision in its Constitution (Art. I, § 10), privacy interests protected in these other states might be protected under our state’s constitution.
The United States Supreme Court first recognized a parent’s liberty interest in the rearing of his or her children in two 1920’s cases involving states’ attempts to regulate education. In Myers v. Nebraska, 262 U.S. 390 (1923), the Supreme Court invalidated a Nebraska law prohibiting schools from teaching in languages other than English until a student has completed eighth grade. The court reversed a parochial school teacher’s conviction for teaching Biblical stories in German. The court found the 14th Amendment’s liberty guarantee included the right to “bring up children,” which includes the “natural duty of the parent to give his children education suitable to their station in life.” Id. at 399-400.
In Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Supreme Court invalidated an Oregon law requiring compulsory public school attendance, finding “it unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Id. at 534-35.
The Supreme Court reaffirmed a parental liberty interest in education of children in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Yoder struck down a Wisconsin law requiring students to remain in school until the age of sixteen. Various Amish parents removed their children from school after the completion of eighth grade so the children could begin apprenticeships. These parents challenged the statute as a violation of their liberty interest in raising their children. The Supreme Court invalidated the Wisconsin law, finding “this case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred. The record is to the contrary, and any reliance on that theory would find no support in the evidence.” Id., 406 U.S. at 230.
In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Supreme Court invalidated a New York statutory scheme for termination of parental rights cases. The court held that the fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state. Id., 455 U.S. at 753. “[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.” Id. at 760.
The court further found that the preponderance of the evidence standard provided for in New York statutes governing termination of parental rights upon finding that a child is “permanently neglected” did not properly allocate the risk of error between parent and child. Id. at 765. Therefore, due process mandated that the standard of proof for termination of parental rights be by clear and convincing evidence. Id. at 769-70.
Various state supreme courts, interpreting Yoder, supra, have used the language regarding a lack of showing of harm to develop a “harm” requirement as the test for whether a statute unreasonably interferes with parental liberty interest. This requirement has come up most frequently in the context of grandparent visitation statutes.
A seminal case in the application of parental liberty and privacy interests to grandparent visitation statutes is Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). In Hawk, paternal grandparents sought and, at the trial court level, were awarded visitation with their grandchildren, over the objection of both parents who were married and still living together. The Tennessee Supreme Court reversed, finding that the state’s grandparent visitation statute violated both the 14th Amendment’s liberty interest and its own state’s constitutional privacy interest. The court analyzed the issue as follows:
In this case, the paternal grandparents directly challenge this fundamental privacy interest by seeking court-ordered visitation. Bill and Sue Hawk argue that grandparent visitation is a “compelling state interest” that warrants use of the state’s parens patriae power to impose visitation in “best interests of the children.” They insist that a judicially determined finding that visitation is in the best interests of the children is a sufficiently compelling justification to override the parents’ united opposition, regardless of the fact that the parents’ fitness is not challenged and that the parents’ domestic situation has never been the subject of judicial concern. We find, however, that without a substantial danger of harm to the child, a court may not constitutionally impose its own subjective notions of the “best interests of the child” when an intact, nuclear family with fit, married parents is involved. … The requirement of harm is the sole protection that parents have against pervasive state interference in the parenting process. As one author has stated: For the state to delegate to the parents the authority to raise the child as the parents see fit, except when the state thinks another choice would be better, is to give the parents no authority at all. You may do whatever you choose, so long as it is what I would choose also does not constitute a delegation of authority. Id. at 579, 580.
The Hawk court was also mindful that “by applying this type of [harm requirement] analysis, we also seek to avoid the ‘unquestioning judicial assumption’ that grandparent-grandchild relationships always benefit children, an assumption that overlooks the necessity of a threshold finding of harm before the state can intervene in the parent-child relationship.” Id. at 581.
The Hawk analysis has been followed by other state supreme courts in invalidating their grandparent visitation statutes. See, e.g., In re Custody of Smith, 137 Wash.2d 1, 20, 969 P.2d 21, 30 (1998), cert. granted, Troxel v. Granville, 68 USLW 3080,1999 WL 551940 (1999) (finding Washington grandparent visitation statute violated 14th Amendment liberty interest); Von Eiff v. Azicri, 720 So.2d 510 (Fl. 1998) (state constitution’s guarantee of privacy was violated by statute mandating that if one or both parents are deceased, trial court shall order grandparent visitation upon grandparent’s petition, when in the best interest of the minor child, without first requiring proof of demonstrable harm to child); Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769 (1995) (grandparent visitation statute unconstitutional because it does not require showing of harm before requiring grandparent visitation); See also, Hoff v. Berg, 1999 N.D. 115, 595 N.W.2d 285 (1999) (statute mandating grandparent visitation unless such visitation is found not to be in unmarried minor’s best interest is violation of parent’s due process rights).
New York State has recognized that application of a “best interests” test in deciding custody between a parent and a third-party is inappropriate. It has created a requirement of a finding of extraordinary circumstances before the state can deprive a parent of his or her superior custody rights as against a third-party. See, e.g., Michael. G.B. v. Angela L.B., 642 N.Y.S.2d 452, 454, 219 A.D.2d. 289, 291 (1996).
The United States Supreme Court’s decision to grant certiorari in the Smith case is expected to provide guidance on the proper balancing of parental liberty interests with a state’s desire to impose its own view of a child’s best interests. Oral argument is scheduled for January, 2000, and a decision is expected in June, 2000.
The “best interests of the child” standard is embedded in South Carolina case law and statutes. Over 30 South Carolina domestic relations statutes and 100 cases cite this standard. However, based on Supreme Court precedent, this standard may be appropriate only in cases between two natural parents. No South Carolina cases have discussed the harm standard of Yoder and Hawk.
The South Carolina Supreme Court recently focused on the issue of constitutional limitations on family court authority in the case of Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999). In Hooper, a mother argued that “familial privacy,” as embodied in both the United States and South Carolina Constitutions prevented authorities from investigating whether she was choking and dunking her seven-year-old son in icy bath water and from taking the child into emergency protective custody in such a situation. The South Carolina Supreme Court rejected this argument, but held (I believe improperly) that in examining the mother’s claims of familial privacy, only a best interest standard applied, never discussing United States Supreme Court case law setting the higher “harm” standard as the threshold for state intrusion into parental decision making. Though the mother’s actions clearly met the harm standard (allowing for state intervention), the South Carolina Supreme Court’s holding may have set too low a burden for state intervention and may not comport with constitutional standards.
Should the United States Supreme Court follow past precedent in Troxel, it is extremely likely it will impose on states a greater burden than a mere finding that state action is in a child’s “best interests” before it allows states to intrude upon a parent’s liberty interest in the parent-child relationship. Such a holding would have tremendous ramifications for the South Carolina family courts. It is very possible that the standards set forth in the case of Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989), regarding custody disputes between parents and third-parties, is unconstitutional because it does not require a showing of harm to the child before awarding a third-party custody. The grandparent visitation statute, S.C. Code Ann. § 63-3-530 (33), may have a similar constitutional infirmity. Some commentators have even questioned the government’s authority to require child support above a threshold necessary to adequately support the child’s needs. See, e.g., Henry, Roland K., “Child Support at a Crossroads,” Family Law Quarterly, Vol. 33, #1, Spring 1999 p. 235. He notes:
Using the coercive power of government to establish child support guidelines beyond the child’s needs in cases of divorce is also hypocritical. When the government gains control over children, as in foster care cases, it has identified an expenditure level that is sufficient to entice unrelated third parties-foster parents-to care for the children. If the government has decided that the foster care payment is sufficient to meet the expenses of the children and also to provide compensation to the caregivers, what governmental interest authorizes the imposition of a higher burden on divorced parents? There is no such burden upon parents in intact marriages. The government accepts no such burden for children within its own care. Why, then, can it be proposed that higher burdens are to be placed solely upon parents who had the misfortune to come out on the short end of a custody fight? Id. at 254-55.
The absence of a “showing of harm” requirement before the state overrides parental decision making authority creates an anomalous situation in which parents are deprived of their parental authority while being burdened with government imposed obligations. Parents can lose custody of their children without a showing of harm and then be jailed for inadequately supporting these children. Grandparents intrude upon family harmony and parental autonomy based on a court’s view of the sanctity of the grandparent-grandchild relationship. Courts are increasingly becoming involved in disputes between parents and third parties regarding children’s schooling or education.
The rarely examined assumption that courts can impose their views of a child’s “best interests” upon a parent without a necessity of showing harm makes a mockery of parental autonomy and limited government. The issue of grandparent visitation statutes is not whether grandparents should be able to visit with their grandchildren (most do, almost always without the necessity of court intervention); the issue is whether the court should (and is willing to) place a parent in prison for refusing to allow the children to visit with the grandparent. Recognition of the parental liberty interest and imposition of a harm requirement before allowing the court to impose its own view of a child’s best interests on a parent are the best safeguards against such possibly unwarranted intrusions on family life.
The Tennessee court subsequently applied the holding in Hawk to cases in which the parents were not part of an intact family. See, e.g., Simmons v. Simmons, 902 S.W.2d 682 (Tenn. 1995) (applying Hawk to case where father’s parental rights terminated); Ellison v. Ellison, 994 S.W.2d 623 (Tenn. App. 1998) (applying Hawk to case where father was deceased).
The three Federal Circuit Court cases cited by the Hooper court in rejecting mother’s “familial privacy” claim allowed state intrusion into the parent-child relationship based upon concerns of abuse or harm to the child. See, White by White v. Chambliss, 112 F.3d 731, 735-36 (4th Cir. 1997) (South Carolina law regarding DSS intervention constitutionally allows state to assume emergency protective custody where “there is probable cause to believe that by reason of abuse or neglect there exists an imminent danger to the child’s life or physical safety”); Thomason v. SCAN Volunteer Services, Inc., 85 F.3d 1365, 1371 (8th Cir. 1996) (citation omitted) (“right to family integrity clearly does not include a constitutional right to be free from child abuse investigations”); Jordan by Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir. 1994) (finding Virginia’s emergency removal provisions constitutional as “the requirements of process may be delayed where emergency action is necessary to avert imminent harm to a child”). None of these cases allowed state intervention based on a mere “best interest” standard and all appear to make concerns of harm (or abuse) a predicate to state intervention.