divorce or paternity actions. Both parents have an equal
constitutional right to raise their child when in their home.161
However, when a parent has sole legal custody, these rights change if
they pertain to certain major decisions related to raising a child.162
The court may only interfere if the action rises to the level of
significant harm to the child’s rights or upon a showing of a change
of circumstances sufficient to warrant custody modification.163
Courts start with the presumption that parents will act in the
best interest of their children. “This stewardship conception of
parental rights allows us to posit parental rights – and thus keep the
state from meddling too much in family affairs – without treating the
child as property of the parent.”164 And who better to exercise this
stewardship than the child’s parents? In doing so, parents are
161 In re Adoption of Ta’Niya C., 8 A.3d 745, 754 n.13 (Md. 2010) (noting that
when it comes to “custody (and visitation) disputes,” neither parent “has any
preference over the other” and making a distinction between a parent and a third
party, stating “there is a legal preference” and that “we have recognized that
parents have a fundamental, Constitutionally-based right to raise their children free
from undue and unwarranted interference on the part of the State, including its
courts”); McDermott v. Dougherty, 869 A.2d 751, 770 (Md. 2005) (“In a situation
in which both parents seek custody, each parent proceeds in possession . . . of a
constitutionally-protected fundamental parental right. Neither parent has a superior
claim to the exercise of this right to provide ‘care, custody, and control’ of the
children. Effectively, then, each fit parent’s constitutional right neutralizes the
other parent’s constitutional right . . . .”); see also Rico v. Rodriguez, 120 P.3d 812,
817 (Nev. 2005) (“In a custody dispute between two fit parents, the fundamental
constitutional right to the care and custody of the children is equal.”).
162 A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d 120, 125 (Ind. Ct. App. 2004)
(finding the custodial parent enjoys the right to determine the religious training of
the child as long as the custodial parent does not use it as a means to interfere with
the noncustodial parent’s parenting time and there is no showing of substantial
harm affecting the child’s physical health or emotional development); see also
Hamilton, 270 P.3d at 1027 (holding that the non-custodial parent retains the right
to discipline his child for conduct that occurs while under the supervision of the
non-custodial parent); Baldwin v. Baldwin, 710 A.2d 610, 616 (Pa. Super. Ct.
1998) (Brosky, J., dissenting) (stating that the non-custodial parent has an interest
in sharing in the rearing and love of the child).
163 See, e.g., Fridley v. Fridley, 748 N.E.2d 939, 941 (Ind. Ct. App. 2001); Shade v.
Wright, 805 N. W.2d 1, 4-5 (Mich. Ct. App. 2010).
164 Brennan & Noggle, supra note 3, at 13.