Divorce & Child Custody Case Law


530 U.S 57

(Supreme Court 2000)
Child Cusotody Case | Parental Rights are Fundamental | Overbreadth

This case is a challenge to the parental authority of a single mother by the father’s parents where the parents were never married, and where the father had died. The mother allowed Grandparent visitation but at a reduced amount from when the father lived with his parents and exercised his possession time from the Grandparent’s home.

Here the Court made an important, definitive statement about Parental Rights being Fundamental, “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.” This opinion resulted in the Court agreeing with the Washington State Supreme Court that the law in question was unconstitutionally broad. The Court made it clear that States are required to justify any intrusion they make into the parent’s liberty to make decisions about the child. The Court did not state what standard should be used but simply stated that the Trial Court simply assumed its authority and made no effort to document any findings that would overcome a presumption in favor of the parent.

The Trial Court’s imposition of a visitation schedule for the Grandparents in spite of the parent’s objections was overturned under an overbreadth ruling. What is important in this case is that The Court made it clear that Family Law Courts are subject to the Constitution just as all other Courts are. They can no longer assume that they have authority to do what they have been doing. You will hear attorneys and judges attempting to spin this case another way to avoid its very real implications.

You may hear Troxel referred to as a "grandparent's rights" case. Yet, ironically, Justice O'Connor didn't even dedicate a single sentence anywhere in the case to the issue of grandparent's rights. The only mention of grandparent's rights at all comes from the titles of some of the state cases that were referenced, not for thier contribution to the Court's holding, but rather for context of the state proceedings. Troxel is 100% a parent's rights case and you can use this knowlege to shut down the other attorney when they try to spin Troxel into something it is not.


262 U.S. 390

(Supreme Court 1923)
Parental Rights are Fundamental | Right to Direct Child's Education | Parental Right of the "Individual" | Right to Establish a Home to Bring Up a Child | A First Amendment case | overbreadth | spectrum of available knowledge

This case resulted from a criminal misdemeanor conviction of a private school teacher for the offense of teaching a foreign language to a child who had not yet passed the Eighth Grade. The Court found that the law infringed on the Fourteenth Amendment’s guarantee of Parental Liberties, particularly the right to direct the education of the child. The opinion contains a list of substantive liberties attributed to the Fourteenth Amendment that differs from many others:

"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Meyer was decided before the Court incorporated First Amendment protections into the Fourteenth Amendment's definition of "Liberty" which is why it references only the Fourteenth Amendment. In a later case, Griswold v. Connecticut, the Court reasserted both Pierce v. Society of Sisters and Meyer v. Nebraska 100% within the First Amendment context. When you face arguments that parental rights are not protected by the First Amendment, this case defeats that arguement:

By Pierce v. Society of Sisters, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach—indeed the freedom of the entire university community. Without those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

The opinion also contains a statement that is helpful for countering the idea that best interest of the child trumps Fundamental Liberties, “a desirable end cannot be promoted by prohibited means.” So, as desirable as the state's goals of asserting the child's best interests may be, that "end cannot be promoted by prohibited means." Ultimately, the Court determined that a Fundamental Liberty was at issue, the law was overly broad, and the Court found no adequate foundation for the stated purpose of the statute.


268 U.S. 510

(Supreme Court 1925)
Child is NOT the mere creature of the state | Parental Right and High Duty to Direct Child's Destiny through Education | Arbitrary Unreasonable & Unlawful State Interference

This case follows Meyer v. Nebraska in time and at issue was a preliminary injunction against a State law in Oregon that required all children of a certain age to attend public schools. Without prior injunction, the law would have caused irreparable injury. On that basis the Court held that prevention of impending injury by unlawful action is a well recognized function of courts of equity.

There were numerous Fundamental Liberty issues brought up, but the Court simply said that this case was sufficiently like Meyer that the Oregon law was therefore unconstitutional. There are some good quotes for Parental Rights to be found in this case and it is often cited in other cases. Some of those statements are: “rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”


321 U.S. 158

(Supreme Court 1944)
Parental Rights | First Amendment | Children's Rights | Against State's Power to Protect

This is a Parental Rights case, a First Amendment case, and a children’s rights case. At issue is the strength of Parental Rights and a child’s freedom of religion rights in the face of the State’s power to protect children in the form of child labor laws.Prevention of impending injury by unlawful action is a well recognized function of courts of equity.

Massachusetts introduced a child labor law that made it illegal for children of certain ages to be engaged in selling literature in public. One guardian and her child were engaged in providing religious literature on the public street in exchange for a donation. The State considered that a violation of the child labor law and fined the guardian. She appealed her conviction on parental and religious rights grounds. While the Court reiterated its strong stance in favor of Parental Rights and in favor of the First Amendment, the court argued that the State’s parens patriae interest in child welfare in terms of child labor laws was also strong. This case is a great example of how these rights and responsibilities can conflict in the real world and how the Court seeks to resolve that conflict.

In this case, the responsibility of the State edged out the other Liberties but the Court strongly warned that this ruling was fact specific and not necessarily a standard for future rulings.

Even though Parental Liberties suffered in this specific instance, this case provides strong support for those rights in general. This is a rich case that says much about the difference between adult rights and children’s rights, such as, “the mere fact a state could not wholly prohibit this form of adult activity, whether characterized locally as a ‘sale’ or otherwise, does not mean it cannot do so for children… The state's authority over children's activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment… What may be wholly permissible for adults therefore may not be so for children, either with or without their parents' presence.”

Even though the State’s responsibility won out here, the Court reiterated parent’s and children’s rights, “The rights of children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it, have had recognition here.” This case is strong evidence that children can be protected from the horror of having to choose one parent over the other in a divorce custody dispute.


405 U.S. 645

(Supreme Court 1972)

Stanley is the case of an unwed father who maintained a relationship with his children and their mother. This point is important because the Court has held that parental rights gain federal constitutional protections from the parent-child relationship which makes parental rights First Amendment Rights. An important part of this is that the relationship is defined by a parent's willingness to take on parental responsibilities for the child. The state may argue that it is your responsibility to pay another person to raise your child but this conflicts with how the Court has interpreted the constitution generally.

Upon the mother's death Stanley ensured that the children were cared for by a third party. The State then inserted itself and declared by statutory definition that unwed biological fathers were not legal parents and proceeded to remove his children from him. He appealed this as an equal protection argument. while the constitution protects your right to care for your children directly and personally as against the state forcing you to pay someone else for that care. Assuming parental responsibilities does NOT require your direct personal care but rather that you provide for the care. Bording schools meet this requirement as does placing your child with competent adult relatives. It is important to note that Thomas Jefferson, Author of the Declaration of Independence, Governer of Virginia during the Revolution, Founding Father, Ambassador to France, and President of the United States, placed his daughters in the care of a relative when he went to France for three years to be our ambassador. He was certain of his right to do so.

The Stanley Court determined that the State is prohibited from defining the term "parent" in a way that disenfranchised unmarried fathers. It declared that State laws must treat unmarried fathers equally to unmarried mothers or married couples to be constitutional under equal protection. Most states fail to apply this properly to divorced parents, Stanley works in support of divorced parent arguments. Our equal protection arguments place the distinguishing criteria NOT on married vs. unmarried parents but rather on family law civil litigants vs other civil litigants generally. We do this because the state appellate court precedent we have reviewed generally applies the same rules of civil procedure differently for divorced parents than for all other civil litigants. Pleadings requirements top this list and are the most important because your pleadings define the scope of the trial court's authority.

NOTE: If your trial court claims jurisdiction to apply the entire family code against your rights as a parent in contrast to limiting its claims of jurisdiction to the specific conflict raised in the pleadings, you should object under the grounds that your court is acting as a state regulator unlimited by the scope of the pleadings rather than as a judicial decision-maker whose jurisdiction is limited to the scope of the legal conflict defined in the pleadings.
Argue that this overreach denies your constitutional right to notice before the state takes regulatory action against you and also deprives you of all constitional protections inherent in the Executive Branch regulatory processes combined with the right to challenge Executive Branch regulation befor a neutral and impartial state court. The family court is depriving parents of their constitutional rights to "specific" notice of the state's regulatory intent, the right to confront "the state," before a neutral and impartial court, regardign the state's regulatory intent and asserted regulatory authority, and the right to cross-examine the state's testimony in this regard.
Your state's family code is direct state regulation of divorce and parental rights conducted by judges rather than Executive Branch regulators and this violates the Separation of Powers Doctrine and it deprives you of access to a competent court in which you can challenge the state's policies and the state's regulatory actions. In this manner, The courts illegally reverse the burden of proof away from the state onto fit parents. Don't think of your judge as a judge but rather as a state regulator because that is what they are doing and it nullifies thier judicial authority under constitutoinal law.

Further the Court held that the State may not deprive Stanley of a Fundamental Liberty interest in his children without finding him unfit in a proper proceeding. The focus on a "fitness hearing" is tied to the specific state statute being challenged in Stanley. The core principle is that the state cannot deprive you of a significant liberty interest without providing you with a pre-deprivation hearing, that the state must initiate, not the parent. In Stanley, the specific type of pre-deprivation hearing that applied was a fitness hearing.

The Court makes it clear that States may not assume a parent is unfit simply because it is easier for the State to do so. In other words, the state may NOT presume away the constitutional requirement that it provide a pre-deprivation hearing and that the state must overcome the presumption that regulation of fundamental rights is unconstitutional except in narrowly specific instances that the state must demonstrate to exist.

The Court also addressed that the child has a liberty interest in association with the unwed father. The Court states clearly that if the State’s interest is in “the best interest of the child” then the State’s interest is spited when the State removes custody from a fit parent. (This is exactly what they do in divorce.) Of importance for Parental Rights in divorce is the statement that the State’s parens patriae interest is “de minimis” unless the State shows unfitness of a parent. De mimimis means that the state's interests are of the lowest legitimate order, just above the status of illegitimate interest.

The Court also makes it clear that even if most unwed fathers would be determined unfit, that fact does NOT allow the State to assume away all unwed fathers rights, without the opportunity for rebuttal. (This is an especially important issue for unwed fathers who do not legitimize their status early in a child’s life. They need to preserve their rights, generally, by legitimizing their paternity, or they risk losing parental rights under the Courts current reasoning.) The Court in this case makes it clear, as far back as 1972, that Parental Rights are Fundamental Liberty interests deserving of strong protection, “The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children comes to this Court with a momentum for respect.”

Importantly, Troxel in 2000, did NOT establish that parental rights are fundamental. Rather, Troxel recognized that parental rights had been declared fundamental many times before by the Court and Troxel simply places the fact beyond debate. Yet child custody courts continue to debate this topic from the perspective of a regulator seeking to preserve his illegal regulatory power. There are numerous vital points in Stanley, not all of which are identified on this page, but one of the most important is proving that parental rights were fundamental long before Troxel.


406 U.S. 205

(Supreme Court 1972)

This is a case where the State of Wisconsin attempted to require that Amish children attend public school until the age of sixteen. Typically, Amish children attend school until the end of eighth grade and then begin to learn a trade through apprenticeship. The Yoders refused to send their two children to public high school and were charged with a crime and fined. They then claimed that the State was interfering with their ability to manage the education and religious upbringing of their children and that attending formal public high school would interfere with their religious beliefs. This is another instance where the State claims that its parens patriae interests are stronger than the parent’s Fundamental Liberties. The argument of the Court is that children are generally unable to protect themselves and therefore are not able to exercise their rights fully. This requires that someone be the primary and first guardian of the children. The Court clearly states that the parents are the primary and first guardians of the child, not the State. However the State has a role in setting minimum standards that all parents must follow. The Court stated its strong feelings for protecting the First Amendment, “The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance.” The Court stated that if the purpose of a statute can be served by means other than violating the right to freedom of religion then it is unconstitutional. The Court also stated that religious conduct not just belief may also be protected. This is important because we are arguing that we have a right to educate (conduct) our children in our own moral and religious beliefs. The Court also states that a statute that seems equal on its face can still fail a constitutional challenge if its effect is to place an undue burden on the liberty. We are claiming the undue burden test applies in divorce as well. The Court also makes a strong statement that people may not be disenfranchised because they are different or strange. The Court also states that children have Fundamental Liberties. The Court states that when a Parental Liberty is tied to a First Amendment claim then it must receive enhanced scrutiny and that the State must show a danger to the child’s health or safety before it may intervene. The result is that the State’s parens patriae interests do not outweigh Parental and Religious Liberties guaranteed by the Constitution.


434 U.S. 246

(Supreme Court 1978)

This is a case where an unwed father sought to block adoption of his son by a stepfather, who had assumed full responsibility for the child with the mother, when Mr. Quilloin had not supported his child or ever exercised custody. Mr. Quilloin did not seek custody, only some visitation and to block the adoption. This is a somewhat troubling case for several reasons. First, I would have to say that this case is very fact specific and hardly provides a guide as to how a divorced parent can be lawfully treated. The father in this case accepted paternity and was listed on the birth certificate but never sought legitimation under State law. However, the Court excluded this from their reasoning partially because testimony indicated that he was unaware of this requirement until the adoption request was filed. Second, the Trial Court bent over backwards to give Mr. Quilloin a full and complete hearing and there was no challenge to the level of scrutiny applied. Although, an equal protection claim was made it didn’t include discrimination based on sex but instead contested that Mr. Quilloin was treated differently than a separated or divorced father would have been, indicating that they would have greater preference given to their rights. The Court said that [in this fact specific instance] Mr. Quilloin’s circumstances were readily distinguishable from separated or divorced fathers and therefore equal protection was not violated. Much was made of the fact that Mr. Quilloin was not seeking actual custody, which seemed to work against his argument as he didn’t seem committed to the welfare of the child while the mother and stepfather clearly were. I believe the fact that the Trial Court went out of its way to provide a fair hearing worked against Mr. Quilloin in this case. Even though he was not found unfit, I believe that he was seen as being “unwilling” and sought only to be a spoiler in this case. I believe that this case can be seen as a conflict of Fundamental Liberties between the mother and the father where the disparity shown in exercising responsibility was great. I believe that the child’s rights also came into play in terms of ability to inherit from the stepfather and to assume his name as part of a family unit and that provided the extra lift needed in this case. It would have been preferable had the Court framed it in these terms instead of in “best interest” terms; but that was the standard framing at the time. It seems clear that the arguments that worked against Mr. Quilloin in this case can NOT be applied more broadly to parents in divorce. So while this case is informative of the Courts thinking at the extreme of unwed and uninvolved fathers, it does not impact the mainstream issue of fit involved parents in divorce.


442 U.S. 584

(Supreme Court 1979)

This case involves Parent’s Rights as they relate to their child’s rights and the responsibility of the State under parens patriae and in loco parentis [the State acting as parent, e.g. ward of the State]. Specifically, this case involves the Due Process requirements for placing a child into a State run mental health institution. While there is nothing new or ground breaking here, the Court goes into significant detail in outlining these issues. The Court specifies the approach used in testing Due Process claims when Fundamental Liberties are at stake. The Court reiterates its strong support of Parental Rights but also states that a child has strong liberty interest in this case which warrants additional protection. The Court protects the child by requiring, not only, parental consent, but also, medical necessity determined by an admitting physician. The Court also protects the parent-child relationship by NOT requiring an adversarial hearing, pitting child against parent. The Court goes into detail about its views that minors’ rights are necessarily limited and provides great examples. “Simply because the decision of a parent is not agreeable to a child, or because it involves risks, does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.” The Court mentions the issue of an Undue Burden of too much procedure causing harm, although not by that name. The same issue is addressed with natural parents and when the State as in loco parentis acts as the parent, e.g. wards of the State.


455 U.S. 745

(Supreme Court 1982)

This case deals with standards of evidence that may be used to terminate a parents Fundamental Liberty Interest in their child. The State of New York used a “fair preponderance of the evidence” standard. The Court held that this was insufficient and that a “clear and convincing” standard was the minimum standard to which States were to be held. “The absence of dispute reflected this Court’s historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” “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. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” The Court states that the parents and the child share an interest in avoiding an erroneous termination of parental rights. This is the same interest as in divorce. “Yet while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds.” “We cannot believe that it would burden the State unduly to require that its fact finders have the same factual certainty when terminating the parent-child relationship as they must have to suspend a driver’s license.” “The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” This opinion gives us additional ammunition in our fight for Parental Rights in divorce. It also brings up another issue not addressed in this book, that of evidentiary standards used in divorce. Although not addressed here, this is a vital element in our battle that will be developed more on our website and in additional books.


521 U.S. 702

(Supreme Court 1997)

This is a case involving the right or lack thereof to physician assisted suicide. It is extremely instructive in terms of how the Court approaches determining what is and is not a Fundamental Liberty protected by the Fourteenth Amendment. There is also significant discussion on how the Court came to the conclusion that it has authority to conduct substantive Due Process reviews. There isn’t much here that is directly applicable to Parental Rights in divorce, but if you want to really understand how the Court thinks about Substantive Due Process issues, this case is very informative.


These are but a few of the important cases that we cite in our work. We literally have hundreds of cases that we cite for different reasons, all of which help you retain custody of your child.

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