Right to Stability

So many people attempt to manipulate our emotions in child custody issues. They get us stoked up and emotionally tied to their often false arguments. One of these false arguments is that children have a “right to stability.” I routinely scour US Supreme Court opinions to better understand parent and child rights. I have yet to find any opinion that says children have a “right to stability.” In fact, I find exactly the opposite.

Rights protect us from the government, NOT from our parents

Children are by nature incredibly resilient and they can by nature absorb much more change much faster and easier than most adults can. While it is true that to some extent children benefit from stable relationships and where other more important concerns aren’t implicated then stability of relationships can and should be a factor in decision making. However, when issues of fundamental liberties are at stake, the concept of relationship stability for the child must give way to the liberty interest. The U.S. Supreme Court placed the rights of natural parents over the stability issues and even political issues of Elian Gonzalez in 2000, when they allowed him to be returned to his father in Cuba, (Gonzalez v. Reno, 212 F. 3d 1338 (11th Circuit 2000.) In 2013 the U.S. Supreme ruled that the law overrides the stability interests of the adopted child, (Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (Supreme Court 2013).

In a much older case the Supreme Court states it very clearly, (The court [referring to district court] apparently reached this conclusion by weighing the harmful consequences of a precipitous and perhaps improvident decision to remove a child from his foster family, and concluding that this disruption of the stable relationships needed by the child might constitute “grievous loss.” But if this was the reasoning applied by the District Court, it must be rejected.) In this case the fundamental constitutional rights of natural parents prevailed over the claim of harm.

The point of this is to help cut through some of the emotional manipulation that goes on in these child custody cases and to replace that manipulation with the facts of the law and the Constitution. The United States Supreme Court has consistently held over many years that fit parents have a right to the care, custody, and control of their children and that the State may not take away this right with vague, unsubstantiated, or emotional claims of “harm” to the child.

Under the Constitution, children do have a right to stability but that stability comes in the form of constitutional guarantees that the parent-child bond between each parent and each child is not to be breached by the State. Constitutional rights are rights against State action, NOT rights against a parent. The child’s right to stability protects the child from instability created by government, NOT instability created by fit parents.

Divorce can NOT alter individual rights

What this means in divorce, under the Constitution, is that regardless of who had the primary care taking role during the marriage, each parent is free to make their own private decisions regarding care of their child equally with the other parent post-divorce. Divorce Courts that place continuity of the previous child rearing decisions over the rights of fit parents to make other decisions post-divorce are acting outside of Supreme Court guidance and example. Protection of the status quo simply does not and cannot trump fundamental parental rights. This also protects parents being alienated because the other parent has been keeping the child from them and creating a “status quo.” By following the constitutional protections, no status quo can override either parent’s rights and relationship with the child and the child’s relationship with both parents to be free from the influence, control, or deprivation from either parent or court interference.

I understand that many parents will not like this (well mostly the parent in control) and that they will do almost anything to maintain their supremacy in the daily child care role but there is no constitutional right to maintain this supremacy. It takes two people to have a child. Those two people are constitutionally equal. When you have a child with this person you are bound to that person for at least 18 years regardless of marital status. Every potential parent should think very hard about who they choose to have a child with and if married should think very hard about the real consequences of divorce. And even with that careful consideration things can still go terribly wrong. But that other parent has a constitutional right to be a parent that is equal to yours as long as you are both fit parents regardless of how you end up feeling about the other parent.

This not only protects you from a narcissistic overly controlling angry, vindictive other parent, but also protects your child from being used for anyone’s purposes. And also provides assurance and continuity to the child that they will not be at risk of losing either parent.

What is stability for a child?

Stability for a child comes in the form of strong close family associations with each fit parent. Nobody has stability in life and the government cannot provide any real stability. However, the security found in close family bonds has provided a sense fo stability for people since the dawn of time. When a divorce court rips a fit parent from a child’s life, that divorce court is destroying that child’s sense of stability. Divorce courts teach children that their parents can be ripped from them for no reason at all other than the whim of a judge. 


Divorce courts have zero authority to impose a burden of “stability” onto fit parents. Even if a child has a right to stability, that right protects the child from divorce court judges, NOT from its fit parents.