such complex family cases, while balancing individual rights, that
courts need to retain the essence of the Constitution and not impose
their own substantive values over the rights of the individual.
The Thirteenth and Fourteenth Amendments, adopted in 1865
and 1868 respectively, were a response to the deprivation of rights by
the states,50 declaring that no person can be deprived of life, liberty,
or property without the due process of law.51 The Supreme Court
emphasized, in Parham v. J.R.,52 the necessity of balancing “the
family as a unit with broad parental authority over minor children”
and “children hav[ing] a substantial and protectable liberty
interest.”53 The family and each of its members are constitutionally
protected from governmental intrusion. As a result, “the Court
concluded that parents retain a ‘substantial, if not dominant, role in
the decision . . . absent a finding of neglect or abuse.’”54
Consequently, courts must carefully weigh the constitutional rights of
the family and not impose their own values and morals onto the
upbringing of the children.
Even the best interest standard, without a balancing of rights,
can be devoid of objective value in visitation disputes as well.55
Without a balancing of rights, there is concern that a judge will
impose his or her subjective values and bias.56 So, some judges put
50 Several southern states were not willing to enforce the Thirteenth Amendment
abolishing slavery and involuntary servitude. See Gordon Leidner, The Thirteenth
Amendment, GREAT AM. HIST.,
http://www.greatamericanhistory.net/amendment.htm (last visited May 28, 2013).
The Fourteenth Amendment acknowledged a constitutional right and provided, for
those affected, a cause of action against the states that refused to enforce the
Thirteenth Amendment. The Civil Rights Cases, 109 U.S. 3, 11 (1883).
51 U.S. CONST. amend. V.
52 Parham v. J.R., 442 U.S. 584, 631-32 (1979) (Brennan, J., concurring).
53 Kristin Henning, The Fourth Amendment Rights of Children at Home: When
Parental Authority Goes Too Far, 53 WM. & MARY L. REV. 55, 80 (2011).
55 See Alessia Bell, Note, Public and Private Child: Troxel v. Granville and the
Constitutional Rights of Family Members, 36 HARV. C.R.-C.L. L. REV. 225, 254
(2001) (“In the name of the child’s best interests, courts have denied custody based
on a parent’s sexual orientation, race, financial status, or presumed promiscuity.”).