Constitutional Issues of Parentage:

Equality for Fathers and Children

While considering the care, custody and overall welfare of children in the United States, countless fathers and special advocacy groups have challenged the legality of current state laws throughout the nation, which are inherently placed to address such issues. Among the many disputes in this matter, one argument directly asserts that several state-sponsored codes for parentage are in direct violation of provisions within the United States Constitution. Others associated with this dilemma question whether these circumstances officially fall under the protection of the supreme document, and if parentage concerns should become federal affairs; yet, the rest affirm the traditional belief that these cases are not within the jurisdiction of federal protection, including the Constitution, and should be completely left to state decision, as is currently practiced. Consequently, the purpose of the ensuing sections is to provide background information about parentage issues in America, where fatherhood provisions within state revised codes are concerned, analysis of the media, an examination of Amendment Fourteen § 1 of the United States Constitution and ending statements calling for the sensible action of change.

Over the years of our nation’s history, the definitive presumptions of parentage rights have completely changed twice. The first theory, which rampantly operated as a patriarchy, allowed children to become the automatic property of the father in divorce a case. Collateral damage in these instances were great, for the dissociated mother had absolutely no right to raise her children, regardless of whether she was fit to assume a positive position in their lives or any other factors that could be reasonably determined as significant. This unfortunate condition, however, would reverse and shape domestic affairs to be at their current matriarchal state by the early 1900’s, through the establishment of what became collectively accepted as the Tender Years Doctrine. The philosophical views shared within this policy, as adopted from earlier practices within English Common Law, vehemently declared that the most natural placement for a young child was with their mother. In fact, several statements had been prepared by state and local court systems to show unrelenting support for this new strategy, as is evident within the next example, “Mother love is a dominant trait even in the weakest of women, and as a general thing, surpasses the general affection for the common offspring, and moreover, a child needs a mother’s care more than a father’s” (National Council of Juvenile & Family Court Judges, 1984).

Despite the fact that these values were seemingly removed from local codes of law during the 1970’s, and instantly replaced with the premise of acting in the “best interest of the child”, parentage groups are now more active than ever. Pursuant to the rise in such activity, with regards father’s rights and interrelated concerns, several standard sources have exposed the open battles of this domestically related war, including the occasional début with a television talk show, radio broadcasting hour or newspaper article. Especially due to the nature and complexity of these parental issues, free education, through both visual and audio means of media sources, play an invaluable role in the alteration of public opinion. Not surprisingly, however, the most widely used medium to discover knowledge about this equality-based adventure is the internet website. Within a number of these pages, which normally offer open avenues to realize specific regulatory defects within a particular area, the major disputes appear to be whether state and local parentage laws are federally allowed, and if not, the advisable methods to revoke them.

Regardless of any and all claims to the rights, privileges and freedoms of parenthood, a common inspection of the United States Constitution reveals that the safeguards afforded by Amendment Fourteen § 1 are far different from those presented by the domestic codes in many of the states and counties all over America. For reasons of perfect clarity, the aforementioned section of our land’s supreme, legal document explicitly guarantees citizen rights, as well as offers unambiguous, state restriction through the following written words of our forbearers:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const. amend XIV, §1)

Albeit the last segment of this amendment section does not explicitly establish the inclusion of parental rights within its realm of support, it does plainly offer security from unequal treatment under state law. From a practical standpoint, the most equitable application of the intended meaning and spirit of our constitution is all-encompassing in nature, to a point where specific mention of every instance or contingency is not only unnecessary, but also excessive to require.

In collaboration with the previous evaluation, an assortment of court cases has essentially affirmed these principles through the highest levels of our judicial system. One such case came before the Supreme Court of the United States, Troxel v. Granville (2000), where Honorable Justices O’Connor, Rehnquist, Ginsberg, Breyer, Souter and Thomas concurred that “The Fourteenth Amendment’s Due Process Clause has a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests,’ including parents’ fundamental right to make decisions concerning the care, custody, and control of their children” (530 U.S. 57). Contradictory to these rights, the Ohio Revised Code (1998) states, “An unmarried female who gives birth to a child is [automatically] the sole residential parent and legal custodian of the child” (§ 3109.042). Without guaranteed rights to the unmarried father, in essence, the ideals confirmed by our land’s highest court members is not only negated, but are also unjustly restricted from those of a particular sex.

After reviewing the evidence presented, it appears that society has changed its views, regarding parentage issues, from one extreme to another several times. Once the presumptions of natural history and incumbent theories are removed, which often contain incomplete of facts or are visibly subjective in nature, an unfortunate pattern materializes that exposes several deficiencies between federal and state governmental practices. Specifically, the United States Senate and House of Representatives are derelict of their duty to enforce the intended attitude and significance of Amendment Fourteen § 1 of the United States Constitution, with respect to just parentage laws in our nation. Correspondingly, states throughout the country have placed fathers in an unfair position that alienates them from their own children, using revised codes that essentially exclude by gender. It is my opinion that these state actions are not only substandard, but are also complete contradictions to the clear guarantees given by the supreme document of our land and prejudiced against those who society has accepted as Americans and neighbors.

The fact that the United States Constitution does not emphatically address parentage rights is unimportant, for according to the United States Supreme Court, e.g. Troxel v. Granville (2000) these rights are inherently primary for all parents. While noted as naturally existent, this is reasonable support towards the interpretation of constitutional protection from state dissent. Though it is logical for some aspects of state policy to be determined without outside intrusion, as described with in Amendment 10 of the constitution, a responsible test for all sections of state revised code would be its alignment with the carefully planned citizenship rights afforded to its constituents. The previously given paradigm, from the Ohio Revised Code (1998) § 3109.042, is a classic example the unfair treatment experienced at the hands of state legislators throughout the United States. Given that our forefathers had presumably intended for us to perpetuate equality within the union, parentage matters should be the next constitutional issue to see substantial relief.

References

National Council of Juvenile & Family Court Judges. (1984). Tender Years Doctrine. Juvenile and Family Court Journal(1), 35: 5-16. doi: 10.1111/j.1755-6988.1984.tb01774.x

Ohio Revised Code. (1998, January 1). Law Writer - ORC- Chapter 3109.042 - Custody Rights of Unmarried Mother. Retrieved November 25, 2010, from LAWriter Ohio Laws and Rules: http://codes.ohio.gov/orc/3109.042

Troxel v. Granville, 530 U.S. 57 (June 5, 2000). Retrieved November 25, 2010, from Cornell University Law School at: http://www.law.cornell.edu/supct/html/99-138.ZS.html

U.S. Const. amend. XIV, § 1. Retrieved November 25, 2010, from The U.S. Constitution Online at: http://www.usconstitution.net/const.html#Am14