This is my third post on a recent (and important) decision from the Kansas Supreme Court. I suggest you read the first two posts before this one so you know what’s going on. I’m trying to minimize repetition.
The case at issue is one of those intra-lesbian mother disputes that has appeared on the blog with unfortunate frequency. Two women–a couple–decide to start a family and have children together. Because of the way law is structured, one woman has an easy path to legal parenthood–she is both genetically related to the child and gives birth. In the problem cases, the women split up and the one with clear legal rights tries to deny the legal status of the other woman. It’s important to distinguish these from the broader category of cases where the women split up and disagree about custody. Legal parents disagree about custody and go to court to litigate it somewhat frequently. What distinguishes the cases I’m thinking of is that one woman asserts that the other is not a legal parent.
Anyway, I’ve already discussed the way in which the court found parental rights in the second woman. Now I want to focus on the court’s discussion of an objection raised by the original parent (here that is Goudschaal)–that recognition of the second parent violates the first parent’s constitutionally protected parental rights. This is a critical objection that must be seriously considered, both because it invokes the US Constitution and because it is common to almost all the cases in this category.
There is little doubt that the original parent (the woman who gives birth) has constitutionally protected parental rights. Further, it is widely understood that component of the protected parental rights is the right to decide who a child spend times with. So, for example, if I am a legal parent than I have the right to decide which friends/relatives my child spends time with. A court cannot intervene unless there is a sufficient basis to overcome my rights. In sum, Goudschaal’s assertion here is that the court’s determination that Frazier is a legal parent infringes on her rights to control who the child sees.
The court considers the argument and rejects it. In doing so it provides what I htink is one of the clearest articulations of the counter-argument:
[W]hat Goudschaal overlooks is the fact that she exercised her due process right to decide upon the care, custody, and control of her children and asserted her preference as a parent when she entered into the coparenting agreement with Frazier. If a parent has a constitutional right to make the decisions regarding the care, custody, and control of his or her children, free of government interference, then that parent should have the right to enter into a coparenting agreement to share custody with another without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children.
(Page 28-29.) In other words, recognition of Gaudschaal’s rights virtually requires recognition of the agreement she made because that agreement was an exercise of her rights.
The court offers a second reason why Gaudschaal’s invocation of rights must fail:
So what Goudschaal really wants is to renege on the coparenting agreement without regard to the rights of or harm to the children, all in the name of constitutionally protected parental rights. Surely, her constitutional rights do not stretch that far.
(Page 29.) Here again, as I noted yesterday, the court does something laudable–it considers the interests of the children.
There are, of course, limits to constitutionally protected parental rights as there are limits to all constitutional rights. In order to define the scope of rights the state must articulate other interests that might legitimately limit the rights asserted. And surely the rights of the children–a proper concern of the state–must limit the rights of a parent. (This is most obvious in the case of physical discipline. A parent does not have the right to use unlimited force against her child because the state’s interest in the well-being of the child curtails the parental right.)
So here the court’s ruling hinges on its appreciation of the interests of the children involved. As the court says, parental rights cannot be extended to the point where they are exercised at the expense of harm to the children.
I think there’s room for one more post here–which I hope to get to tomorrow. I’d like to take a step back from the details of the opinion and think about how the case fits into the larger picture. But for now, I’m done.