Fundamental Right to Parent

Susan O'Toole Edmonds Lawyer

It may seem obvious, but many people do not realize that parenting is a fundamental right under the United States and Washington State Constitutions. One area that the fundamental right to parent can play out is in protection order hearings that involve children. If a parent applies for a protective order preventing the other parent from seeing the children, the fundamental right to parent should be considered by the Court concerning whether to grant the order and, if applicable, the scope of said order.

Criminal Law Cases

The constitutional prohibition on the fundamental right to parent applies across all types of law, including criminal law and family law. Appeals courts have sent criminal law cases involving no-contact orders that include children back to be rewritten when the scope or duration is not justifiable given the fundamental right to parent one’s children. See, e.g., In re Pers. Restraint of Rainey, 168 Wn.2d 367 (20210); State v. Ancira, 107 Wn.App. 650 (2001). In Rainey, the Court of Appeals noted that court orders that impinge on fundamental rights such as the right to parent are subject to strict scrutiny, i.e., they must be “sensitively imposed,” “narrowly drawn,” and “carefully reviewed.” In State v. Warren, the court held that for NCOs affecting parental rights to be constitutional, there must be “no reasonable” alternative to achieve the state’s interests, including the interests in protecting children and in public order. 165 Wn.2d 17 (2008).  

Family Law Cases

The Constitution of the United States and the Constitution of the State of Washington do not just apply to criminal court proceedings, but to all court proceedings, including family law proceedings. Thus, the fundamental right to parent is also recognized in the family law court arena, and in statute. For example, RCW 26.09.002 states:

Policy. Parents have the responsibility to make decisions and perform other parental functions necessary for the care and growth of their minor children. In any proceeding between parents under this chapter, the best interests of the child shall be the standard by which the court determines and allocates the parties’ parental responsibilities. The state recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests. Residential time and financial support are equally important components of parenting arrangements. The best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care. Further, the best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm.

Case law also supports the application of the fundamental right to parent in the family law context. For example, the Court in Underwood v. Underwood, 181 WnApp 608, 612 (2014) noted “[p]arents have a fundamental liberty interest in the ‘care, custody and management of their children,’” citing to In re Dependency of J.H.,  117 Wn.2d 460, 473 (1991). See also, Santosky v. Kramer, 455 US 745, 753, 102 S.Ct 1388, 71 L.Ed. 2d 599 (1982). Thus, courts are required to consider whether protection orders involving children and parents meet the requirements of strict scrutiny, and are narrowly tailored to advance a compelling state interest. Further, “[u]nder this standard, the state may interfere only it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” In re Custody of Smith, 137 Wn.2d 1, 15, (1998) quoting Wisconsin v. Yoder, 406 U.S. 205m 234m 92 S, Ct 1526m 32 L. Ed. 2d 15 (1972).

Fundamental Right to Parent – The Takeaway

Obviously, the Family Law Court has the responsibility to protect children from real and true dangers, and the RCW 26.09.191 factors for parenting plans, the new protection order statutes, and many other mandates to the Family Law Court provide protections for children in situations where it is needed. However, Courts may need to consider on a case-by-case basis whether DVPOs and other protection orders between parents and their children impact the fundamental right to parent in an unconstitutional way.

Considerations

Parents who are seeking DVPOs or other restraining orders preventing the other parent from having contact with the children should consider the fundamental right to parent in their protection order application. Further, parents who have had their parenting time limited in severe ways should consider whether they could make an argument that the protection order too severely impinges on their fundamental right to parent. For more information or to schedule a consultation email us at info@beresfordlaw.com or give me a call at (425) 776-4100.

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