A FATHER’S FUNDAMENTAL (CONSTITUTIONAL) RIGHTS
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The following is an exact quote from the Illinois Supreme Court summarizing decisions of the U.S. Supreme Court that are controlling upon ALL states.Grandparents’ and unwed fathers’ rights are also discussed below.
Lulay v Lulay
193 Ill. 2d 455 739 N.E. 2d 521 250 Ill. Dec 758 (DECIDED Oct 26, 2000)
The
fourteenth amendment [***23] to the United States Constitution
provides that no state shall "deprive any person of life, liberty, or property,
without due process of law."
The due
process clause "includes a substantive component that 'provides heightened protection
against government interference with certain fundamental rights and liberty interests.'
" Troxel, 530 U.S. at , 147 L. Ed. 2d at 56, 120 S. Ct. at 2059-60, quoting
Washington v. [**530] Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d
772, 787, 117 S. Ct. 2258, 2267 (1997).
As the United States Supreme Court stated in Troxel, the "liberty interest at issue
in this
case-the
interest of parents in the care, custody, and control of their children-is perhaps the
oldest of the fundamental liberty [*471] interests recognized by
this Court." Troxel, 530 U.S. at , 147 L. Ed. 2d at 56, 120 S. Ct. at 2060
(reviewing Court decisions that have recognized and explained the fundamental interest of
parents in the upbringing of their children); accord People v. R.G., 131 Ill. 2d 328,
342-43, 137 Ill. Dec. 588, 546 N.E.2d 533 (1989) (upholding the constitutionality of the
"Minors Requiring Authoritative Intervention" [***24]
statutes (see Ill. Rev. Stat. 1987, ch. 37, par. 803-1 et seq.) and recognizing that,
under United States Supreme Court precedent, "parents have a liberty interest in
bearing and raising their children").
In Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625
(1923), the Court held unconstitutional a statute that prohibited the teaching of certain
foreign languages at an elementary school. The Court reasoned that
the due
process clause protects the rights of parents to "establish a home and bring up
children" and "to control the education of their own." Meyer, 262
U.S. at 399, 401, 67 L. Ed. at 1045, 1046, 43 S. Ct. at 626, 627. Two years later, in Pierce
v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 69 L.
Ed. 1070, 45 S. Ct. 571 (1925), the Court held unconstitutional a statute that required
parents to send their children to public schools, reasoning that the statute interfered
with the liberty right of parents "to direct the upbringing and education of children
under their control." The Pierce Court explained that the "child is not the
mere creature of the State; those who nurture [***25] him and
direct his destiny have the right, coupled with the high duty, to recognize and prepare
him for additional obligations." Pierce, 268 U.S. at 535, 69 L. Ed. at 1078, 45
S. Ct. at 573.
Years later, the fundamental right of parents to raise their children remained an
important focus in the jurisprudence of the United State Supreme Court. In Stanley v.
Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 [*472] (1972), the Court held unconstitutional a statute that declared that, upon
the death of the mother, children of unwed fathers became wards of the state. The
Court reasoned: "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 lacking when appeal is made to liberties which derive merely from shifting
economic arrangements.' [Citation.]" Stanley, 405 U.S. at 651, 31 L. Ed. 2d
at 558, 92 S. Ct. at 1212.
Soon after, in Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526
(1972), [***26] the Court held, albeit primarily on the basis of
the first amendment right to free exercise of religion, that a state's compulsory
education law did not apply to a group of Amish children. The Court emphasized: "The
history and culture of Western civilization reflect a strong tradition of parental concern
for the nurture and upbringing of their children. This primary role of the parents in the
upbringing of their children is now established beyond debate as an enduring American
tradition." Yoder, 406 U.S. at 232, 32 L. Ed. 2d at 35, 92 S. Ct. at
1541-42; see also Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 606,
102 S. Ct. 1388, 1394 (1982) (determining the standard of proof necessary in termination
of parental rights case and noting the Court's "historical recognition that freedom
of personal choice in matters of family life is a fundamental liberty interest protected
by the Fourteenth Amendment"); Parham v. J.R., 442 U.S.
584, 602, 61 L. Ed. 2d 101, 118, 99 S. Ct. 2493, 2504 (1979) (stating that "our
jurisprudence historically has reflected [**531] Western
civilization concepts of the family as a unit with broad parental authority [***27] over minor children"). In light of this extensive [*473] precedent, the Court in Troxel concluded that "
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." Troxel, 530 U.S. at , 147 L. Ed. 2d at 57, 120 S. Ct. at
2060.
Section 607(b)(1) allows grandparents to petition for court-ordered visitation with the
grandchildren when both parents have decided not to allow such visitation. By allowing the
State to interfere with the parents' decision in this regard, section 607(b)(1) impinges
upon the fundamental constitutional right of parents to make decisions regarding the
upbringing of their children.
The State and the grandmother, Gail Lulay, argue that, even if section 607(b)(1) impinges
upon a fundamental right, the statute does not significantly interfere with the
fundamental right, and therefore, we should apply the rational basis test in reviewing the
constitutionality of section 607(b)(1). See R.G., 131 Ill. 2d at 343 (stating that
only statutes that "significantly interfere" with a fundamental right [***28] are subject to strict scrutiny), citing Zablocki v.
Redhail, 434 U.S. 374, 386-88, 54 L. Ed. 2d 618, 630-31, 98 S. Ct.
673, 681-82 (1978). The State contends that section 607(b)(1) does not give grandparents
the absolute right to visitation. Rather, the statute merely creates a procedure by which
grandparents may petition for visitation under certain circumstances. The State points out
that section 607(b)(1) states only that a court "may grant reasonable visitation
privileges" (emphasis added) ( 750 ILCS 5/607(b)(1) (West 1998)) and that the
grandparents have the burden of proving that visitation is in the child's best interests
and welfare.
In light of the nature of the fundamental right at stake, the State's and the
grandmother's argument is not persuasive.
Encompassed
within the well-established fundamental right of parents to raise their children is [*474] the right to determine with whom their children should
associate. See Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285, 291 (N.D. 1999)
(stating that "deciding when, under what conditions, and with whom their children may
associate is among the most important rights and [***29]
responsibilities of parents," in holding that its most recent grandparent visitation
statute was unconstitutional). It is the role of parents to nurture their children and to
influence and shape their children's character. As the United States Supreme Court has
recognized, "it is cardinal with us that the custody, care and nurture of the child
reside first in the parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder." Prince v. Massachusetts,
321 U.S. 158, 166, 88 L. Ed. 645, 652, 64 S. Ct. 438, 442 (1944). This "preparation
for obligation" includes the parents' determination of who will be instrumental in
the development of their child's personality and character. Section 607(b)(1) allows the
State to usurp the decisionmaking function of parents with respect to the relationships
that their children will have. This decisionmaking function lies at the core of parents'
liberty interest in the care, custody, and control of their children. To hold that section
607(b)(1) is not a significant interference with the fundamental right of parents to raise
their children would be to effectively obliterate that [***30]
fundamental right.
The significant interference that section 607(b)(1) has on parents' fundamental right is
further evidenced by the procedure contemplated by the statute. The grandparents may file
a petition for visitation under certain circumstances; in this case, where the parents are
divorced. The parent or parents are then haled into court. The parents must presumably
hire attorneys, and then present evidence and [**532] defend their
decision regarding the visitation before a trial court. The parents' authority over their
children is necessarily diminished by [*475] this procedure. This
can only be characterized as a significant interference with parents' fundamental right to
make decisions regarding the upbringing of their children. Indeed,
the "burden of litigating a domestic relations proceeding can itself
be 'so disruptive of the parent-child relationship that the constitutional right of a
custodial parent to make certain basic determinations for the child's welfare becomes
implicated.' " Troxel, 530 U.S. at , 147 L. Ed. 2d at 62, 120 S. Ct. at 2065, quoting
530 U.S. at , 147 L. Ed. 2d at 78, 120 S. Ct. at 2079 (Kennedy, J., dissenting).
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Many useful documents and tactics not available here or elsewhere are found in the "CUSTODY/DIVORCE KIT" available by clicking the following link.To enhance the chances of winning your case, you need to see ALL the aids provided by: THE FATHERS RIGHTS FOUNDATION
LINK TO THE GUIDE TO FATHERS RIGHTS FOR INFORMATION ON OBTAINING FATHERS’ AND UNWED FATHERS’ RIGHTS