THE CONSTITUTIONAL RIGHT TO BE A PARENT
The rights of parents to the care, custody and nurture of
their children is of such character that it cannot be denied without
violating those fundamental principles of liberty and justice which
lie at the base of all our civil and political institutions, and
such right is a fundamental right protected by this amendment
(First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247;
U.S. D.C. of Michigan, (1985).
The several states has no greater power to restrain individual
freedoms protected by the First Amendment than does the Congress of
the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38,
Loss of First Amendment Freedoms, for even minimal periods of
time,unquestionably constitutes irreparable injury. Though First
Amendment rights are not absolute, they may be curtailed only by
interests of vital importance, the burden of proving which rests on
their government. Elrod v.Burns, 96 S Ct 2673; 427 US 347,
Law and court procedures that are "fair on their faces" but
administered "with an evil eye or a heavy hand" was discriminatory
and violates the equal protection clause of the Fourteenth
Amendment. Yick Wo v. Hopkins, 118 US356, (1886).
Even when blood relationships are strained, parents retain
vital interest in preventing irretrievable destruction of their
family life; if anything,persons faced with forced dissolution of
their parental rights have more critical need for procedural
protections than do those resisting state intervention into ongoing
family affairs. Santosky v. Kramer, 102 S Ct 1388;455 US 745,
Parents have a fundamental constitutionally protected interest
in continuity of legal bond with their children. Matter of Delaney,
617 P 2d 886, Oklahoma (1980). .
The liberty interest of the family encompasses an interest in
retaining custody of one's children and, thus, a state may not
interfere with a parent's custodial rights absent due process
protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn.
Parent's right to custody of child is a right encompassed
within protection of this amendment which may not be interfered with
under guise of protecting public interest by legislative action
which is arbitrary or without reasonable relation to some purpose
within competency of state to effect. Reynold v. Baby Fold, Inc.,
369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US
963, IL, (1977).
Parent's interest in custody of her children is a liberty
interest which has received considerable constitutional protection;
a parent who is deprived of custody of his or her child, even though
temporarily, suffers thereby grievous loss and such loss deserves
extensive due process protection. In the Interest of Cooper, 621 P
2d 437; 5 Kansas App Div 2d 584, (1980).
The Due Process Clause of the Fourteenth Amendment requires
that severance in the parent-child relationship caused by the state
occur only with rigorous protections for individual liberty
interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct
App 7th Cir WI, (1984).
Father enjoys the right to associate with his children which
is guaranteed by this amendment (First) as incorporated in Amendment
14, or which is embodied in the concept of "liberty" as that word is
used in the Due Process Clause of the 14th Amendment and Equal
Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F
Supp 620; DC, WI (1973).
The United States Supreme Court noted that a parent's right to
"the companionship, care, custody and management of his or her
children" is an interest "far more precious" than any property
right. May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843,
A parent's right to care and companionship of his or her
children are so fundamental, as to be guaranteed protection under
the First, Ninth, and Fourteenth Amendments of the United States
Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super,
The Court stressed, "the parent-child relationship is an
important interest that undeniably warrants deference and, absent a
powerful countervailing interest, protection." A parent's interest
in the companionship, care, custody and management of his or her
children rises to a constitutionally secured right, given the
centrality of family life as the focus for personal meaning and
responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208,
Parent's rights have been recognized as being "essential to
the orderly pursuit of happiness by free man." Meyer v. Nebraska,
262 or 426 US 390 ; 43 S Ct 625, (1923).
The U.S. Supreme Court implied that "a (once) married father
who is separated or divorced from a mother and is no longer living
with his child" could not constitutionally be treated differently
from a currently married father living with his child. Quilloin v.
Walcott, 98 S Ct 549; 434 US 246, 255-56, (1978).
The U.S. Court of Appeals for the 9th Circuit (California)
held that the parent-child relationship is a constitutionally
protected liberty interest. (See; Declaration of Independence
--life, liberty and the pursuit of happiness and the 14th Amendment
of the United States Constitution -- No state can deprive any person
of life, liberty or property without due process of law nor deny any
person the equal protection of the laws.) Kelson v. Springfield, 767
F 2d 651; US Ct App 9th Cir, (1985).
The parent-child relationship is a liberty interest protected
by the Due Process Clause of the 14th Amendment. Bell v. City of
Milwaukee, 746 f 2d 1205, 1242-45; US Ct App 7th Cir WI, (1985).
No bond is more precious and none should be more zealously
protected by the law as the bond between parent and child." Carson
v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).
A parent's right to the preservation of his relationship with
his child derives from the fact that the parent's achievement of a
rich and rewarding life is likely to depend significantly on his
ability to participate in the rearing of his children. A child's
corresponding right to protection from interference in the
relationship derives from the psychic importance to him of being
raised by a loving, responsible, reliable adult. Franz v. U.S., 707
F 2d 582, 595-599; US Ct App (1983).
A parent's right to the custody of his or her children is an
element of "liberty" guaranteed by the 5th Amendment and the 14th
Amendment of the United States Constitution. Matter of Gentry, 369
NW 2d 889, MI App Div (1983).
Reality of private biases and possible injury they might
inflict were impermissible considerations under the Equal Protection
Clause of the 14th Amendment. Palmore v. Sidoti, 104 S Ct 1879; 466
Legislative classifications which distributes benefits and
burdens on the basis of gender carry the inherent risk of
reinforcing stereotypes about the proper place of women and their
need for special protection; thus, even statutes purportedly
designed to compensate for and ameliorate the effects of past
discrimination against women must be carefully tailored. the state
cannot be permitted to classify on the basis of sex. Orr v. Orr, 99
S Ct 1102; 4340 US 268 , (1979).
The United States Supreme Court held that the "old notion"
that "generally it is the man's primary responsibility to provide a
home and its essentials" can no longer justify a statute that
discriminates on the basis of gender. No longer is the female
destined solely for the home and the rearing of the family, and only
the male for the marketplace and the world of ideas. Stanton v.
Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).
Judges must maintain a high standard of judicial performance
with particular emphasis upon conducting litigation with scrupulous
fairness and impartiality. 28 USCA ¤ 2411; Pfizer v. Lord, 456 F 2d
532; cert denied 92 S Ct 2411; US Ct App MN, (1972).
State Judges, as well as federal, have the responsibility to
respect and protect persons from violations of federal
constitutional rights. Gross v. State of Illinois, 312 F 2d 257;
The Constitution also protects "the individual interest in
avoiding disclosure of personal matters." Federal Courts (and State
Griswold can protect, under the "life, liberty and pursuit of
happiness" phrase of the Declaration of Independence, the right of a
man to enjoy the mutual care, company, love and affection of his
children, and this cannot be taken away from him without due process
of law. There is a family right to privacy which the state cannot
invade or it becomes actionable for civil rights damages. Griswold
v. Connecticut, 381 US 479, (1965).
The right of a parent not to be deprived of parental rights
without a showing of fitness, abandonment or substantial neglect is
so fundamental and basic as to rank among the rights contained in
this Amendment (Ninth) and Utah's Constitution, Article 1 ¤ 1. In re
U.P., 648 P 2d 1364; Utah, (1982).
The rights of parents to parent-child relationships are
recognized and upheld. Fantony v. Fantony, 122 A 2d 593, (1956);
Brennan v. Brennan, 454 A 2d 901, (1982). State's power to
legislate, adjudicate and administer all aspects of family law,
including determinations of custodial; and visitation rights, is
subject to scrutiny by federal judiciary within reach of due process
and/or equal protection clauses of 14th Amendment...Fourteenth
Amendment applied to states through specific rights contained in the
first eight amendments of the Constitution which declares
fundamental personal rights...Fourteenth Amendment encompasses and
applied to states those
preexisting fundamental rights recognized by the Ninth
Amendment. The Ninth Amendment acknowledged the prior existence of
fundamental rights with it: "The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others
retained by the people." The United States Supreme Court in a long
line of decisions, has recognized that matters involving marriage,
procreation, and the parent-child relationship are among those
fundamental "liberty" interests protected by the Constitution. Thus,
the decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d
147, (1973), was recently described by the Supreme Court as founded
on the "Constitutional underpinning of ... a recognition that the
"liberty" protected by the Due Process Clause of the 14th Amendment
includes not only the freedoms explicitly mentioned in the Bill of
Rights, but also a freedom of personal choice in certain matters of
marriage and family life." The noncustodial divorced parent has no
way to implement the constitutionally protected right to maintain a
parental relationship with his child except through visitation. To
acknowledge the protected status of the relationship as the majority
does, and yet deny protection under Title 42 USC ¤ 1983, to
visitation, which is the exclusive means of effecting that right, is
to negate the right completely. Wise v.