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It is not uncommon in our practice to represent a parent fighting to simply maintain a relationship with their children in a divorce or custody action. Too often a parent attempts to eliminate contact between the other parent and their children based on one reason or another. The impact of this effort can sometimes result in a de facto termination of the target parent’s rights to their children. It is the position of The Smith Firm that if a court is going to consider terminating contact between a parent and child, they must find detriment to the child by clear and convincing evidence if the contact isn’t terminated. This position is disputed within the family law bar, however, we believe the law supports this argument.

Parental rights are Constitutionally protected and fundamental.

It is accepted constitutional doctrine that the due process clause of the Fourteenth Amendment protects interests that are recognized as constituting life, liberty, or property. Courts have deemed parental rights to be a fundamental liberty interest. The United States Supreme Court has frequently emphasized the importance of the family and considered parental rights ‘essential’ under the protection of the Fourteenth Amendment of the United States Constitution. In the case of Skinner v. Oklahoma, the Supreme Court called the right to family “one of the basic civil rights of man.” In another case (May v. Anderson) dealing with custody rights the Supreme Court recognized parental rights as “Rights far more precious than property rights.”

The Oklahoma Supreme Court has held that parental rights are vastly important and to be treated with deference. In Bass v. Justus, The Oklahoma Court has stated that “Parents have a fundamental, constitutionally protected interest in the continuity of the legal bond between themselves and their children. The integrity of familial status is a value to be regarded with great solicitude.” The Oklahoma Court of Appeals, in the case of French v. McKenrick, stated that “Parents have a fundamental, constitutionally protected interest in the continuity of the legal bond between themselves and their children.”

In the case of In Re C.L.D., the Oklahoma Court of Civil Appeals reaffirmed the long held legal tenant that “the relationship of parents to their children [is] a fundamental constitutionally protected right.” In that case the Court stated, “The Oklahoma Supreme Court has consistently held that ‘the right of a parent to care, custody, companionship and management of his or her child is a fundamental right protected by the federal and state constitutions.’”

The Oklahoma Supreme Court also referred to the “natural right” of parents in Craig v. Craig, stating:

A divorced parent has a “natural right” to visit his or her minor child. This natural right is not taken away unless evidence shows that the parent has forfeited this right, or that the exercise of it would be detrimental to the child’s welfare. The natural right possessed by a parent to the custody and control of the child, or visitation with the child in the absence of custody, springs from the parental status, and is constitutionally protected because of that status and the parent-child relationship and because of the privacy rights inherent in the Constitution.

Craig v. Craig, 2011 OK 27, ¶ 15, 253 P.3d 57, 61.

As a fundamental and protected interest, the requirements of procedural due process apply. The interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment, and “Once it is determined that due process applies, [however,] the question remains what process is due.” Morrissey v. Brewer. Prior to the Court terminating contact between parent and child, due process requires clear and convincing evidence of detriment to the child if contact is not terminated. This should be the standard applied in any case in which the court is going to terminate a parent’s contact with their children.

Actions to terminate parental rights require “clear and convincing” evidence.

It is well settled that proceedings to terminate parental rights require “clear and convincing” evidence. In parental termination cases, the state must show by clear and convincing evidence that the child’s best interest is served by the termination of parental rights. This standard of proof “balances the parents’ fundamental freedom from family disruption with the state’s duty to protect children within its borders. The Court’s review should require the presence of clear and convincing evidence prior to any court terminating a right as fundamental as contact between a parent and child.

In Oklahoma, the termination of parental rights by the District Attorney requires a showing of “clear and convincing” evidence, however, family law courts are applying a lesser standard to achieve practically the same end result of terminating parent-child contact.

The U.S. Supreme Court case of Santosky v. Kramer, is the seminal case regarding the standard of review to apply when terminating a parent’s right to a relationship with their children. The Santosky Court reviewed a decision to terminate a parent’s rights under a preponderance of the evidence standard and held that, “In parental rights termination proceeding, [the] private interest affected weighs heavily against use of preponderance of the evidence standard at state-initiated permanent neglect proceeding.”

The Santosky Court provides guidance to any Court considering terminating a parent’s right to contact with their minor children. The trial court should not be allowed to substitute one constitutionally intolerable standard simply because the case is a divorce proceeding when the effective outcome of the decision is the same as that which was overturned in the Santosky case. The standard of proof necessary to effectively eliminate a parent’s contact with their minor children should be heightened to reflect the fundamental nature of the right being impacted. There should be a heightened degree of confidence in the decision.

In Oklahoma, the case of In re WA., is a guideline ruling because the Department of Human Services (“DHS”) based its request to terminate a parent’s right to be parent on the child’s best interest. The Oklahoma Court of Civil Appeals found in favor of the parent in the case, stating “that an order terminating parental rights must ‘identify the specific statutory basis relied on’ and must ‘contain the specific findings required by that statutory provision.’”

It is this author’s opinion and argument that a divorce litigant should not be allowed to achieve the de facto termination of a litigant’s parental rights, under laws applied to divorce and custody cases, without the same protections afforded to the target parent that would be afforded them in a juvenile proceeding initiated under parental termination proceedings. A clear and convincing standard should apply to any proceeding in law which will result in the termination of a parent’s right to a relationship with their child(ren).

Oklahoma courts have long held that a parent’s right to a relationship with his or her minor child is a natural right. The Oklahoma Supreme Court in In re McMenamin, stated:

A parent possesses certain natural rights with respect to his child whose custody is given to the other parent. The right to visit the child is one. This natural right should not be deniedhim unless the evidence conclusively shows that his conduct is of such nature that he has forfeited the right to access to the child.

In re McMenamin.

The Oklahoma Supreme Court has articulated and affirmed this same natural right between parent and child since 1936. The court, in Craig v. Craig, stated that the right of a parent to visit their child “springs from the parental status.” Parental status confers a right to visitation among other “natural rights” to a parent of a minor child.

Parents should not be allowed to do through a custody proceeding what couldn’t be done in a deprived proceeding by the state.

The clear threat to procedural due process and the rights of parents is that courts have been doing through divorce and custody cases what the state couldn’t do through a parental termination proceeding. The dissent by Justice Simms within Matter of Termination of Parental Rights, is of particular interest in any case in which a parent sets out to alienate, then terminate, a parent’s relationship with their child(ren). He states:

This proceeding was brought to terminate father’s parental rights, and the identity of the initiating party was irrelevant to its consequences to him. He stood to lose his rights to his child just as surely as if the action were brought by the state through the district attorney. The fact that this termination procedure was initiated by an individual rather than the State of Oklahoma, does not change it from being “state action” at its most significant, and the majority’s holding that the availability of a jury trial depends on the identity of the complaining party, creates a denial of equal protection of the law. States may not create artificial boundaries for suitors within the same class. This is particularly true here, where we are dealing with rights which are “[f]ar more precious than property rights,” they have been deemed “essential”, and the “basic civil rights of man.”

Matter of Termination of Parental Rts., 1993 OK 10.

Justice Simms gives clear warning of disparate treatment of parents who find their rights terminated, as did Justice Opala before him in A.E. v. State. Both justices warned that treating a parent differently under the law simply because they find themselves in a family law courtroom as opposed to a juvenile court would violate federal and state constitutional guarantees. It should be clear that one must not be allowed to do through a divorce what they would be prohibited from doing otherwise.

It is the continuing position of The Smith Firm that a family law court’s application of a preponderance of the evidence standard to terminate contact between a parent and child that the extensive procedural protections generally granted to parents are rendered meaningless, and such a decision does violence to, or is at least very difficult to reconcile with, past statements of both the United States Supreme Court and the Oklahoma Supreme Court.

If you are a parent who has lost contact with your children as a result of an order issued in a family law court, the lawyers of The Smith Firm are here to review your case and determine what steps may be available to assist you. Contact us at (405) 843-1000 of at firm@thesmtihfirm.net.

Parents in family law courts should not be allowed to do what couldn’t be done by the state in a parental termination proceeding. #custody #parentalrights