Donald C. Hubin

Department of Philosophy

The Ohio State University



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.




Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s