Interesting Minor’s Counsel Issues & Parental Constitutional Rights
My name is Jon D. Alexander, Esq. and I am an Orange County, California Divorce Attorney. This article is the ninth article in a series outlining the divorce process in California. Please be aware that this article is not intended as and should not be relied upon as legal advice or as the creation of an attorney-client relationship.
In our last article I explained that counsel is sometimes appointed for a child during a divorce proceeding. Well, along with that appointment come interesting issues. Children may, under certain circumstances, choose the attorney who will represent them. If a child is of sufficient age and maturity a court may allow him to select his attorney. Note, that a Guardian ad litem should not be appointed unless the child is a party or the proceeding is in juvenile court.
Besides issues of proper minor’s counsel many other issues arise in the context of custody and determining who will decide the health, education, and welfare rights of a child. Parental constitutional rights have been at the forefront of several interesting cases. Take Palmore v. Sidoti. In this case, Mom and Dad divorce. Mom has custody. Mom starts dating a black man. Dad asks for change of custody based solely upon the new boyfriend’s skin color. Dad claims that the child will suffer detriment because they are located in a small town where most people do not like blacks.
The case was heard by the U.S. Supreme Court. The Court held that Dad’s private bias is not a proper inquiry for removal from a parent and that the constitution cannot control such prejudices nor tolerate them. The Supreme Court refused to allow Dad’s racism as a basis for altering custody. But there have been other cases where controversies such sexual orientation, physical disabilities, mental illness, religion, and immigration status have affected custody.
Take for example In re Marriage Of (”IRMO”) Weiss, where the parents had a previous agreement about religion, but a fight arose regarding which religion the child should be instructed. The trial court ruled that the mother’s prior agreement to raise the kids under the father’s religion would be upheld. However, the court tempered its ruling by allowing the mother to instruct the children regarding her religion as long as the timing of such instruction did not conflict with the father’s religion. The Appellate Court agreed and affirmed the trial court. The Appellate Court held that it’s proper to restrict instruction to children of a particular religion only when such instruction constitutes a substantial threat of present or future physical or emotional harm to the child. And the harm must be current, present, and actual harm, not just potential harm.
In Newdow vs. US Congress a mother was seeking an order that would prevent her Ex from using her kid to get standing to attack the “Under God” language in the pledge of allegiance (child’s school class recited “Under God” language when reciting the Pledge). The issue was whether a father who has no decision-making power regarding health, education or welfare, may exercise any rights to argue a constitutional claim for his child. The Court held that the answer is yes.
The Court held that Dad, although not vested with health, education and welfare rights decision power, does retain his right to make a constitutional challenge for his child. This, however, brings up some questions. What about a child with special needs? Who is vested with the authority to make this decision? The sole legal custodial parent? Or may the non-custodial parent assert it? Courts outside California have held that Parents retain these Constitutional rights pursuant to federal law and cannot be divested of them by a state family law court.
In my next few articles, we will begin an exploration of non-parental custody rights (e.g. Grandparents rights and others) including some relevant and interesting case law. In the meantime, if you have any divorce or family law related questions please contact me at your convenience. You can reach me directly at my website linked below or you may email me Jon at oc-familylawyers.com.
Published by: Jon D. Alexander, Esq. on May 29th, 2009 | Filed under Legal
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