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Cornell Journal of Law and Public Policy

Keywords

Parental rights, Domestic relations

Abstract

The Supreme Court recognized long ago that the United States Constitution protects parental rights, even though those rights are not expressly mentioned anywhere in that document. However, in many of the relevant cases, the Court recognizes the importance of parental rights on the one hand and undercuts the breadth or robustness of those very rights on the other. The Court’s parental rights jurisprudence has consistently sent mixed messages, which has exacerbated the degree to which states differ with respect to how readily those rights may be overridden.

Part I of this Article discusses the Court’s parental rights jurisprudence, noting how the Court consistently both reaffirms and undercuts the robustness of parental rights in many of the relevant decisions. Part II examines state courts’ analyses of statutes permitting non-parental custody or visitation, noting how the Court’s mixed messages have resulted in very different protections for parental rights among the states. The Article concludes that the Court’s ambiguous messaging has created confusion and inconsistency in the states—the interests of parent and child are treated quite differently across the states not merely because of differences in legislative priorities, but because of varying and contradictory analyses of the degree to which the United States Constitution protects parental rights. This lack of clarity has likely resulted in parents’ judgments about their children’s best interests sometimes being overridden too readily, and also likely resulted in states being unnecessarily limited with respect to the ways that they can promote their compelling interest in helping children thrive. The Court’s confusing messaging undermines the interests of parents, children, and society as a whole, and must be clarified at the earliest opportunity.

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