The Fundamental Right to Parent Part I

by Annette Burns on November 30, 2012

One issue any parenting coordinator, mental health professional or judge in family court struggles with is the extent of the court’s authority to make parenting decisions for someone’s children.    Ideally, no one but a parent would make decisions about a child, subject only to safety and health issues that affect society in general.    But in family cases, the court is often confronted with two parents who are in complete disagreement with each other, and if the disagreement isn’t resolved, the child will suffer.    Common areas for concern include the choice of schools (there have been situations where each parent actually sends the child to a different school on different days) and medical decisions (where a child is either not getting required medical care while with one parent or is receiving conflicting or duplicate medical care and medications between the two parents’ households).      The most basic of conflicts is where the child lives.   If both parents assert a right to have their child on Friday, no one questions the court’s authority to state where the child will live on Friday.   The other types of decisions are a logical extension of the need for some neutral person or entity to make the decision that can’t be agreed by the parents.

A Town Hall discussion on these issues and the competing concerns took place at the AzAFCC Sedona conference in 2011, and the Town Hall notes of that session help to define the issue.

Arizona Statutes address this issue.  ARS 1-601, “Parents’ rights protected“, states:

A. The liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right.

B. This state, any political subdivision of this state or any other governmental entity shall not infringe on these rights without demonstrating that the compelling governmental interest as applied to the child involved is of the highest order, is narrowly tailored and is not otherwise served by a less restrictive means.

Arizona Revised Statutes 25-103 states Arizona’s public policy regarding parents and children:

A. It is declared that the public policy of this state and the general purposes of this title are:

1. To promote strong families;

2. To promote strong family values.

B. It also is the declared public policy of this state and the general purpose of this title that absent evidence to the contrary, it is in a child’s best interest:

1. To have substantial, frequent, meaningful and continuing parenting time with both parents.

2. To have both parents participate in decision-making about the child.

C. A court shall apply the provisions of this title in a manner that is consistent with this section.  (My emphasis added)

As both parents have a fundamental right to parent a child, and as both parents should participate in decision-making about the child, then what happens when the two parents don’t agree?  Courts in general struggle to “narrowly tailor” their infringement on parental rights.

As pointed out in the Town Hall notes, sometimes the court’s solution is to name which parent makes the final decision on a disputed issue.       But does naming one parent as decision-maker over the other shift the balance of power unnecessarily and cause future problems?   Is it better for the court to be the tie-breaker as infrequently as possible, leaving the parents to attempt to agree on any decisions they possibly can?

A couple of examples of courts taking authority over parents’ disagreements in specific areas follow.   The Alaska Supreme Court determined that it is appropriate for a trial court to order one parent to execute forms necessary to obtain a passport for a child.    PATRAWKE_v_Liebes_Alaska_Supreme_Court_2012

A Georgia court recently noted that a court has jurisdiction to modify parenting plan provisions as to which parent makes the decision on school choice for the child.   While the parents had originally agreed in a Parenting Plan that Mother would have final decision-making about the choice of school, the court could change that based on a material change in circumstances.   Fox_v_KORUCU

These cases are but two recent examples of courts taking on decisions for a child where the parents won’t.   I’ll follow up with more specific examples of areas where courts have had to step in.

 

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