rights made simple

Your Parental Rights do NOT depend upon your marriage to the child’s other parent!

There are many ways that parents and children have constitutional rights that are being denied in divorce custody battles. Many of these arguments are difficult to master. This one is simple and gets directly to the point. Any average person can understand this and state this clearly and easily to any divorce court judge. It is this simple:

Divorce between parents provides no basis, rational or compelling, for state jurisdiction over child custody because the rights of parents do not and cannot depend on marriage.

For hundreds of years we had Bastardy laws that said children who were born out of wedlock were not deserving of the same rights as children born of a marriage nor were the parents entitled to the same rights to their bastard children. This is why the term bastard is such a derogatory term. In the 1970s the United States Supreme Court said that laws creating two unequal classes of children or two unequal classes of parents based on nothing more than the marital status of the parents are unconstitutional as they violate the principle of equal protection of the law.

There are an additional series of parental rights cases which demonstrate that parental rights are individual rights that do not depend on marriage at all. Therefore, marriage simply is NOT the basis for parental rights or for the child’s rights to the parents.

By this same principle, divorce custody laws that create one set of children who get access to both parents and one set of children who do not based only on their parent’s marital status are laws that improperly create two unequal classes of children.

The same applies to parents. Divorce custody laws that create a “primary parent” class and a “visitor parent” class based on nothing more than a change in the marital status of those parents violates the principle of equal protection under the law.

The Simple Parental Rights Argument is this:

My fundamental parental rights and my child’s fundamental rights can not depend on the marital status of the parents. Where divorce statutes create two unequal classes of parent or two unequal classes of child they violate the Fourteenth Amendment’s Equal Protection Clause. Where the divorce court asserts child custody jurisdiction solely on the basis of a divorce between parents, the court fails the constitutional test of showing a “compelling state interest” that is “necessary” to achieve a permissible state policy.

States are simply NOT authorized under our Constitution to create two unequal classes of people in this manner particularly where the rights being deprived are fundamental rights regardless of what any state law or state divorce court judge might say to the contrary.

The United States Supreme Court made clear in Troxel v. Granville that parents rights are fundamental:

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 Court in Troxel also made clear that the Trial Court was required to produce an individualized finding supporting its jurisdiction to act and to give special weight to the determination of the fit parent:

As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made. Neither the Washington nonparental visitation statute generally—…—nor the Superior Court in this specific case required anything more. Accordingly, we hold that § 26.10.160(3), as applied in this case, is unconstitutional.

In Griswold v. Connecticut, 381 US 479 (Supreme Court 1965), the Court said that a state’s laws MUST be necessary to achieving a permissible state policy:

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. “Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling,” Bates v. Little Rock, 361 U. S. 516, 524. The law must be shown “necessary, and not merely rationally related, to the accomplishment of a permissible state policy.” McLaughlin v. Florida, 379 U. S. 184, 196. See Schneider v. Irvington, 308 U. S. 147, 161.

Where the rights of parent and child have no rational relationship or dependency upon the marital relationship of the parents, the dissolution of a marriage between parents can provide no compelling state interest or permissible state policy to justify infringing on those rights. Further, infringement of those rights is NOT necessary to protect the child.

What this means is that the State cannot establish jurisdiction to significantly encroach upon the parent’s rights in a divorce action without some compelling interest other than the best interests of the child.

This argument is incredibly powerful and so amazingly simple that any parent of average intelligence can make the argument. This simple argument is really all it takes for most people to make the point that divorce courts are systematically denying the equal protection rights of children and parents.


If you are one of those people who want to understand the details then this remaining section will provide many of those details.

One of the core principles of the equal protection clause is that when a classification is made based on something outside of a person’s control and it bears no relation to their ability to contribute to society such as a person’s race, sex, or the marital status of their parents, that classification is invidious and can-NOT stand in the face of the Equal Protection Clause.

It is clear that parents and children have familial rights respective to each other. It is also clear that these rights are fundamental in nature, they are part of our First Amendment rights, and they are privacy rights. Under the equal protection clause, when a fundamental liberty is being infringed, the strictest standard of review is imposed. This standard of review forces the State or your ex to prove that what they are trying to do is constitutional. It puts them on the defensive, not you, if they are trying to deprive you or your child of fundamental rights. (For a detailed explanation of these rights and legal concepts see our book: NOT In the Child’s Best Interest, or our website www.FixFamilyCourts.com)

There are numerous Supreme Court cases establishing that parental rights are INDIVIDUAL rights not dependent on marriage and that these individual rights deserve constitutional protection under the Equal Protection Clause.

Important Supreme Court cases protecting the individual rights of parents:

Lehr v. Robertson, (1983)

Lehr offers some significant points. It discusses “intangible fibers that connect parent and child” both “parent” and “child” are stated in the singular supporting the idea of an individual parental unit between each parent and each child. It talks of an infinite variety of connections, excluding rights only for traditional nuclear families. It discusses how “unwed” fathers can ensure that their “individual” rights to their children are affirmed or recognized in order to receive constitutional protection. (The reason the unwed father must affirm his parenthood is that it isn’t always clear who the father actually is.) Finally, Lehr clearly says that the equal protection clause prohibits discrimination between parents who are “similarly situated.” The only thing that legally matters in determining similarly situated in divorce is that the parents are fit and have established a relationship with the child.

The intangible fibers that connect parent and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection in appropriate cases. … When an unwed father demonstrates a full commitment to the responsibilities of parenthood by “com[ing] forward to participate in the rearing of his child,” Caban, 441 U. S., at 392, his interest in personal contact with his child acquires substantial protection under the Due Process Clause… We have held that these statutes may not constitutionally be applied in that class of cases where the mother and father are in fact similarly situated with regard to their relationship with the child.

Gomez v. Perez, (1973)

We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother.) Gomez may be the best stated case for our purposes here. Let me explain by simply changing a few words from the quote above, “We therefore hold that once a constitutional right to parental association on behalf of children with their parents is posited there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father is not married to its mother.”

Stanley v. Illinois, (1972)

The important parts of this statement are a reference to cases overturning bastardy laws, “relationships unlegitimized by a marriage ceremony” and the clear statement that “children cannot be denied the right of other children” and the use of the singular form “parent” when describing the importance of parental rights and finally the statement that treating single parents differently from married parents is “inescapably contrary to the Equal Protection Clause.”

Nor has any law refused to recognize those family relationships unlegitimized by a marriage ceremony… children cannot be denied the right of other children. … 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… It follows that denying such a hearing to Stanley and those like him while granting it to other Illinois parents is inescapably contrary to the Equal Protection Clause.

Eisenstadt v. Baird, (1972)

Eisenstadt is very important because it states that privacy rights are individual in nature and cannot depend on marital status. Parental rights are often described by the United States Supreme Court as privacy rights, most notably in Planned Parenthood v. Casey, which Eisenstadt says cannot depend on marital status.

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusions

Meyer v. Nebraska, (1923)

Meyer is very important in that it better defines the element of “liberty” that applies to the right to “establish a home and bring up children” and clearly states that this is an “individual” right. Certainly, the right to equally associate with one’s children is an essential element of “the orderly pursuit of happiness by free men…”

Without doubt, it [liberty] denotes not merely freedom from bodily restraint, but also the right of the individual… to marry, establish a home and bring up children… and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men…

The Bastardy Cases

Your state's family code is the last vestige of the Bastardy Codes in our legal system. Your state's family code is based on the exact same principles that the Supreme Court overturned in these cases. This set of cases are the cases that finally did away with bastardy laws across the entire United States and set the standard for when illegitimacy is a legitimate classification and when it isn’t.

What you need to argue is that your child is similarly situated with illegitimate children because the state is attempting to punish your child with loss of a fit parent for no other reason than that your child's parents made an otherwise lawful and constituitonally protected choice regarding marriage that the state disfavored. The following cases explain what this means:

  • New Jersey Welfare Rights Organization v. Cahill, 411 US 619 (1973)
  • Weber v. Aetna Casualty & Surety Co., 406 US 164 (1972)
  • Richardson v Morris, 409 US 464 (1973)
  • Richardson v. Davis, 409 U. S. 1069 (1972)
  • Richardson v. Griffin, 409 U. S. 1069 (1972)
  • Levy v. Louisiana, 391 US 68 (1968)

Copyright Fix Family Courts, May 6, 2014 — Modified August 25, 2014 – July 30, 2021

As you can see, this article was written in 2014. Our arguments have come a long way and we have provided a much better resource in our book Beginner’s Guide to Family Law.

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