See how the best interest standards works against the vexatious state actors.
December 14, 2013 § Leave a comment
Here is some stuff. From Troxel thepoint of note is: The Due Process Clause does not permit a State to infringe on the fundeamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.
An example, horrible as it is, is taking the children away from you and leaving them in the care of a person who brags about sleeping with an 8 yearold boy and kissing his legs. And make an example of yourself because you are a very loving, caring concerned father, and also because of your disability. It is time to get away from their ad hominem, the leaves and canopy ofa tree, and strike at the roots of their injustices.
I have enclosed several articles that shoild be of great interest to yourself.
Keep up the good work, you are a champion amongst Men and Fathers!! Jeff
Troxel v. Granville also contains language that would seem to uphold the traditional view of fundamental parental rights:
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The liberty interest at issue in this case-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.
In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville’s determination of her daughters’ best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption.
The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.
– Troxel v. Granville, 530 U.S. 57 (2000)
The Supreme Court Until 2000
Historically, our nation consistently maintained that parents possess a fundamental right to raise their children as they see fit.
This belief was upheld by our judiciary in numerous Supreme Court cases that reflect the American people’s longstanding commitment to parental rights. The excerpts below are drawn from key Supreme Court cases protecting the right of parents to raise their children. It is critical that we place this traditional Supreme Court doctrine on parental rights into the explicit text of the United States Constitution in order to preserve the vital child-parent relationship. The principles below are referred to as the Parental Rights Doctrine.
Troxel v. Granville, 530 U.S. 57 (2000),[1] was a case in which the Supreme Court of the United States, citing a constitutional right of parents to rear their children, struck down a Washington state law that allowed any third party to petition state courts for child visitation rights over parental objections.
Impact of Troxel v. Granville[edit]
In the case of Troxel v. Granville, the United States Supreme Court stated that “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.”[2] The Supreme Court also made it clear that this fundamental right is implicated in grandparent visitation cases. The plurality opinion stated at the outset that statutes allowing grandparent visitation orders to be imposed over parental objection “present questions of constitutional import.” The Supreme Court flatly declared that a parent’s fundamental right to the “care, custody and control of their children” was “at issue in this case.” The Supreme Court struck down the Washington visitation statute because it unconstitutionally infringed on that fundamental parental right.
State courts considering non-parent visitation petitions must apply “a presumption that fit parents act in the best interests of their children.”.[3] Troxel requires that State courts must give “special weight” to a fit parent’s decision to deny non-parent visitation. “Choices [parents make] about the upbringing of children . . . are among associational rights . . . sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”[4] This principle must inform our understanding of the “special weight” Troxel requires courts to give to parents’ decisions concerning whether, when and how grandparents will associate with their children. Even though Troxel does not define “special weight,” previous Supreme Court precedent indicates that “special weight” is a strong term signifying very considerable deference.[5] The “special weight” requirement, as illuminated by these prior Supreme Court cases, means that the deference provided to the parent’s wishes will only be overcome by some compelling governmental interest and overwhelmingly clear factual circumstances supporting that governmental interest.
The thin consensus about Meyer and Pierce—a veneer of left-right accord that these were good decisions, barely concealing profound differences over why they were good—was rocked when a difference emerged between Justices Scalia and Thomas over the constitutional underpinnings and possible futures of these precedents. The case was Troxel v. Granville.20 It pitted the rights of a parent against a statute that enabled courts to order visitation rights for a child’s grandparents over the objections of a parent, even though a court had never judged the parent unfit in any legal or administrative proceeding.21 In a plurality opinion, the Court agreed that the Meyer-Pierce principle controlled this situation22—admittedly going beyond the familiar fact patterns from Meyer and Pierce, although arguably staying within their rule.
Black’s Law Dictionary, Ninth Edition, Best interests of the child: Family Law. A standard by which a court determines what arrangements would be to a child’s greatest benefit, often used in deciding child-custody and visitation matters and in deciding whether to approve an adoption or a guardianship. A court may use many factors, including the emotional tie between the child and the parent or guardian to give the child love and guidance, the ability of a parent or guardian to provide necessaries, the established living arrangement between a parent or guardian and the child, the child’s preference if the child is old enough that the court will consider that preference in making a custody award, and a parents ability to fostor a healthy relationship between the child and the other parent.
Parens Patriae
[Latin, Parent of the country.] A doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf.
The parens patriae doctrine has its roots in English Common Law. In feudal times various obligations and powers, collectively referred to as the “royal prerogative,” were reserved to the king. The king exercised these functions in his role of father of the country.
In the United States, the parens patriae doctrine has had its greatest application in the treatment of children, mentally ill persons, and other individuals who are legally incompetent to manage their affairs. The state is the supreme guardian of all children within its jurisdiction, and state courts have the inherent power to intervene to protect the best interests of children whose welfare is jeopardized by controversies between parents. This inherent power is generally supplemented by legislative acts that define the scope of child protection in a state.
The state, acting as parens patriae, can make decisions regarding mental health treatment on behalf of one who is mentally incompetent to make the decision on his or her own behalf, but the extent of the state’s intrusion is limited to reasonable and necessary treatment.
The doctrine of parens patriae has been expanded in the United States to permit the attorney general of a state to commence litigation for the benefit of state residents for federal antitrust violations (15 U.S.C.A. § 15c). This authority is intended to further the public trust, safeguard the general and economic welfare of a state’s residents, protect residents from illegal practices, and assure that the benefits of federal law are not denied to the general population.
States may also invoke parens patriae to protect interests such as the health, comfort, and welfare of the people, interstate Water Rights, and the general economy of the state. For a state to have standing to sue under the doctrine, it must be more than a nominal party without a real interest of its own and must articulate an interest apart from the interests of particular private parties.
A. The Development of the “Best Interest of the Child”
Standard
By statute, Maine courts are granted sole authority to determine
parental rights and responsibilities in divorce proceedings. 2 The
primary consideration for the court is the present and future wellbeing
of the children. The foundation for this central focus upon the
children was established in Maine law in 1888. In Stetson v. Stetson
3 the Law Court stated that “the great governing principle for
the guidance of the court is the good of the child.”1′ This proposition
has come to be known as the “best interest of the child” standard,
and it continues to serve as a basis for judicial decision-making
today. The standard is rooted in the common law doctrine of
parens patriae, which holds that “the State has the right and duty
to control the custody of a minor child as it deems appropriate for
the child’s welfare, once the child has become a subject of the jurisdiction
of a court.”‘
Illinois
705 Ill. Comp. Stat. Ann. 405/1-3(4.05) (LexisNexis through 2012 Sess.)
Whenever a ‘best interests’ determination is required, the following factors shall be considered in the context of the
child’s age and developmental needs:
• The physical safety and welfare of the child, including food, shelter, health, and clothing
• The development of the child’s identity
• The child’s background and ties, including familial, cultural, and religious
• The child’s sense of attachments, including:
»» Where the child actually feels love, attachment, and a sense of being valued (as opposed to where adults
believe the child should feel love, attachment, and a sense of being valued)
»» The child’s sense of security
»» The child’s sense of familiarity
»» Continuity of affection for the child
»» The least disruptive placement alternative for the child
• The child’s wishes and long-term goals
• The child’s community ties, including church, school, and friends
• The child’s need for permanence, which includes the child’s need for stability and continuity of relationships with
parent figures, siblings, and other relatives
• The uniqueness of every family and child
• The risks attendant to entering and being in substitute care
• The preferences of the persons available to care for the child
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