Does the mere act of getting divorced or having conflict in the divorce process serve a unique role with children’s rights? Do children of divorce get to decide their own best interest in divorce, in the way that a child’s right to abortion is a unique right no longer dependent on their parent’s permission or reaching the age of maturity?

Bellotti v. Baird says that the Statute in MA is unconstitutional because “The court found no justification for the parental consent limitation placed on that right by § 12S, since it concluded that the statute was “cast not in terms of protecting the minor, . . . but in recognizing independent rights of parents.” Id., at 856. The “independent” parental rights protected by § 12S, as the court understood them, were wholly distinct from the best interests of the minor” (Bellotti v. Baird, 1979). Is this contrary to what we are saying for best interest of the child in divorce cases?

Do all statutes in family law have to be cast in terms of “protecting the minor?” When does that requirement kick in? As it would appear here in abortion cases parent’s rights are cast as secondary to minor’s rights. When does this unique swap of priority of rights take place? There is a trigger mechanism for the child to assert their rights over a parent and even over a judge’s determination of best interest in abortion cases. You can read about that in Roe v. Wade and other cases that have followed that ruling. There is also a trigger before this can happen in divorce. And that trigger is not present at the mere filing of divorce. The best interest standard cannot be used to remove the parent’s right to override a judge’s idea or a child’s idea of best interest in a divorce case unless the parent has been proven to be unfit. Clear and convincing evidence is required to prove a parent unfit.

“Unquestionably, there are many competing theories about the most effective way for parents to fulfill their central role in assisting their children on the way to responsible adulthood. While we do not pretend any special wisdom on this subject, we cannot ignore that central to many of these theories, and deeply rooted in our Nation’s history and tradition, is the belief that the parental role implies a substantial measure of authority over one’s children. Indeed, “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.” Ginsberg v. New York, supra, at 639.

Properly understood, then, the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter. Legal restrictions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and maturity that make eventual 639*639 participation in a free society meaningful and rewarding.[17] Under the Constitution, the State can “properly conclude that parents and others, teachers for example, who have [the] primary responsibility for children’s well-being are entitled to the support of laws designed to aid discharge of that responsibility.” Ginsberg v. New York, 390 U. S., at 639.[18]” (Bellotti v. Baird, 443 US 622 – Supreme Court 1979)

Therefore “State governments may not properly override parental decisions or terminate custody, unless 1) parents delegate their authority to the state voluntarily and knowingly, or 2) the state demonstrates through appropriate due process that there is clear and convincing evidence that the parents have triggered state parens patriae interests by placing their children in clear and present danger. — C.F. Croft v. Westmoreland, (1997)

This Federal Appellate opinion is in line with other opinions of the Court discussed throughout our book, “Not in the Best Interest of the Child: How Divorce Courts Get it all Wrong and the Constitution can Fix It.” Our reasoning and the appellate and SCOTUS opinions combined make an “extremely compelling argument that the State has NO authority to intervene in custody as it does in divorce cases.”1

Until the court proves the parent unfit and clear and convincing danger, we have come to the conclusion that the use of the best interest of the child standard is being used without proper authority. We believe that the court is not authorized to use that standard until they have proven one or both of the parents to be unfit. Until the court proves the parent unfit and clear and convincing danger, the court cannot overrule the parent’s determination of best interest and neither can the child overrule the parent. Even in abortion cases when the child can determine their best interest in abortion, they are not given carte blanche to then override their parents in all other decisions in their lives. The court is very careful to limit that authority to just that one issue of abortion. The courts in divorces and modifications should take heed to this same caution and limit their authority to only issues that cannot be equally divided among two fit and loving parents on their agreement, like where the child will go to school.

Once parents and attorneys start presenting this argument properly, divorce courts won’t be able to arbitrarily take over a parent’s rights to their children in a divorce or modification hearing anymore. In order to do this they will have to use the same level of due process and evidentiary standard and equal protection to the same standard that would apply to any other parent married and unmarried. It just takes every parent to start making these arguments for the courts to start changing their behavior.

Then the local courts will either have to declare that parents do not have these rights or follow the rulings of SCOTUS. Right now you have the Supreme Court of the United States saying that parents do have these rights, so use them, or keep forfeiting them and risk creating a very dangerous precedent where parents in divorce cannot expect to continue to have the necessary parental authority to rear their children as they see fit or where they cannot have a meaningful relationship with their children post-divorce.

1. “Not in the Best Interest of the Child: How Divorce Courts get it all Wrong and the Constitution can Fix It” is going to be published soon. We have several people that will be reviewing the finished book over the next couple of weeks and will be announcing a publication date within the next couple of weeks.