Constitutional limits on family law: marriage, parental rights, termination, and child-support contempt

Black-letter propositions

1. 01

   The right to marry is of fundamental importance, and a state law that significantly interferes with it receives critical examination of the state interests advanced (Zablocki v. Redhail).

2. 02

   A state statute that bars marriage by persons under a support obligation unless a court approves, on a showing that the support is paid and the children are not likely to become public charges, violates the Equal Protection Clause because it unnecessarily impinges on the right to marry.

3. 03

   A state statute that prevents marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses (Loving v. Virginia).

4. 04

   The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state (Obergefell v. Hodges).

5. 05

   The Due Process Clause protects parents' fundamental right to make decisions concerning the care, custody and control of their children (Troxel v. Granville).

6. 06

   There is a presumption that fit parents act in their children's best interests, and a court applying a visitation statute that lets any third party petition must give special weight to a fit parent's determination of the child's best interests.

7. 07

   A state visitation statute that permits a court to overturn any decision by a fit custodial parent whenever a third party petitions, based solely on the judge's view of the child's best interest, violates due process as applied.

8. 08

   A state may not presume that unmarried fathers are unsuitable and neglectful parents, and it must give an unwed father a hearing on his fitness, on individualized proof, before removing his children (Stanley v. Illinois).

9. 09

   The denial to unwed fathers of the hearing on fitness given to all other parents whose custody is challenged by the state is a denial of equal protection.

10. 10

    Before a state may sever completely and irrevocably the rights of parents in their natural child, due process requires that the state support its allegations by at least clear and convincing evidence, and a fair preponderance standard is unconstitutional (Santosky v. Kramer).

11. 11

    The due process right to fundamentally fair procedures in a state-initiated parental rights termination proceeding does not evaporate because the parents have not been model parents or have lost temporary custody to the state.

12. 12

    The Due Process Clause does not automatically require appointed counsel for an indigent noncustodial parent at a civil contempt hearing on child-support, even if incarceration is possible, if the opposing parent is not represented and the state provides alternative safeguards: notice that ability to pay is critical, a fair opportunity to present and dispute relevant information, and express findings on ability to pay (Turner v. Rogers).

Use this attack sequence under time

Common wrong turns

• Termination of parental rights requires at least clear and convincing evidence, not a preponderance.
• An unwed father cannot be presumed unfit and must get a hearing on fitness.
• Turner v. Rogers does not require counsel in every civil contempt case, but the state must provide substitute safeguards.

Worked example

A state statute allows any person to petition for visitation with a child at any time, and a judge orders visitation with the grandparents over the objection of a fit mother, saying only that visitation would be in the child's best interests.

Practice this topic

Marriage

In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court held that Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses. In Zablocki v. Redhail, 434 U.S. 374 (1978), the Court held that a Wisconsin statute that barred marriage by persons with unmet child support obligations without court approval violated equal protection, because the right to marry is of fundamental importance and the statute significantly interfered with it, requiring critical examination of the state's interests.

In Obergefell v. Hodges, 576 U.S. 644 (2015), the Court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.

Parents' rights

In Troxel v. Granville, 530 U.S. 57 (2000), a plurality of the Court concluded that a Washington statute permitting any person to petition for visitation, as applied to a fit mother, violated her due process right to make decisions concerning the care, custody and control of her daughters. The plurality reasoned that there is a presumption that fit parents act in their children's best interests, and that the trial court gave no special weight to the mother's determination and effectively placed on her the burden of disproving that visitation would be in the children's best interests.

In Stanley v. Illinois, 405 U.S. 645 (1972), the Court held that under the Due Process Clause an unwed father was entitled to a hearing on his fitness as a parent before his children were taken from him, that parental unfitness must be established on individualized proof and cannot merely be presumed, and that denying unwed fathers the hearing given to other parents denied equal protection.

Termination and child-support contempt

In Santosky v. Kramer, 455 U.S. 745 (1982), the Court held that a state must give natural parents fundamentally fair procedures when it moves to terminate their rights, that a fair preponderance of the evidence standard violates due process in such a proceeding, and that due process requires that the state support its allegations by at least clear and convincing evidence, leaving the precise burden equal to or greater than that standard to state law.

In Turner v. Rogers, 564 U.S. 431 (2011), the Court held that the Due Process Clause does not automatically require the state to provide counsel at civil contempt proceedings to an indigent noncustodial parent subject to a child-support order, even if the parent faces incarceration, where the opposing parent is not represented and the state provides alternative procedural safeguards equivalent to adequate notice of the importance of the ability to pay, a fair opportunity to present and dispute relevant information, and express court findings on the ability to comply.

Frequently asked questions