Donald C. Hubin
Department of Philosophy
The Ohio State University
ABSTRACT
The U.S. Supreme Court regards parental rights as fundamental. Such a status
should subject any legal procedure that directly and substantively interferes with the
exercise of parental rights to strict scrutiny. On the contrary, though, despite their
status as fundamental constitutional rights, parental rights are routinely suspended or
revoked as a result of procedures that fail to meet even minimal standards of procedural
and substantive due process. This routine and cavalier deprivation of parental rights
takes place in the context of divorce where, during the pendency of litigation, one
parent is routinely deprived of significant parental rights without any demonstration
that a state interest exists—much less that there is a compelling state interest that
cannot be achieved in any less restrictive way. In marked contrast to our current
practice, treating parental rights as fundamental rights requires a presumption of joint
legal and physical custody upon divorce and during the pendency of divorce litigation.
The presumption may be overcome, but only by clear and convincing evidence that such
an arrangement is harmful to the children.
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