Federal courts may have jurisdiction over some custody issues

I am looking into the possibility of federal court jurisdiction over custody issues.

A helpful reader writes:

I forwarded to you a news item about a federal lawsuit challenging the way child custody decisions are made by state family courts.

The lawsuit alleges that the practice of awarding sole custody to one parent violates the federal constitutional rights of the non-custodial parent (NCP).

The lawsuit is sponsored by a group of NCPs whose website is here.

The sponsors have prepared a model lawsuit which they hope to file in each state, led by a named plaintiff resident in that state (I think they have 41 so far). Then they hope to merge the separate suits into a single national class action. ...

The lawsuit was written by non-lawyers, and it shows. It's hard to see how even the most sympathetic judge could find a valid cause of action buried in there. Even if the lawsuit lacks any legal merit, however, it could still help focus public attention on the injustices being done in custody courts.

The lawsuit assumes that the U.S. Constitution recognizes and protects the right of parents to the custody of their children, and to direct their upbringing. Such a right has been mentioned in a handful of Supreme Court decisions but it is not well defined, to say the least. Robert Bork criticized the creation of this right, saying it was analogous to Dred Scott and Roe v. Wade.

The most recent case asserting this right is Troxel v. Granville (2000). (Also here.)

This was an oddball case with a fractured court: Scalia and Thomas were on opposite sides, and O'Connor and Kennedy were on opposite sides.

Troxel v. Granville holds that state courts cannot award custody or visitation to a non-parent against the wishes of a child's only parent (absent a finding that the parent is unfit). In that case, the child had only one surviving parent.

What the NCPs seek is a holding that parents, assuming both are fit, have an equal right to custody and state courts cannot deprive either parent of his or her equal right to custody.

It seems to me that the only hope of establishing that principle would be to invoke and extend the decision in Troxel v. Granville. I have not read the Troxel case closely enough to see if that is feasible. ...

I forwarded to you from LEXIS the federal class action, Nicholson v. Williams, 203 F.Supp.2d 153 (March 18, 2002). The decision was by Jack Weinstein, a notorious judicial supremacist and lover of class actions who once tried to hold the entire gun industry liable for gun injuries.

What is useful about this opinion is several pages of discussion about the source of federal law over family custody and the basis for federal court jurisdiction over state court decisions.

The decision is now on appeal to the 2nd Circuit which "certified" a question of state law to NY state courts. With the recent response from NY, the 2nd Circuit will now proceed to its decision.

None of these cases involve splitting custody between two fit parents but it would seem to be a short step from the relevant principles.

Judge Weinstein summarized the Troxel case:

"It cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their [**218] children." Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).

In Troxel, the Court struck down aWashington statute which allowed state courts to rule on petitions by nonparental persons for visitation rights by reference to a court determination of the "best interests of the child" without necessarily considering the parent's position. Id. at 67. A plurality of the Court held that " [HN30] the Due Process Clause does not permit a State to infringe on the fundamental right of the parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made." Id. at 72--73. Because the "sweeping breadth" of the statute furnished sufficient grounds to find it unconstitutional, the Troxel Court explicitly left undecided the question of whether the state was required to show harm or potential harm to a child before overcoming a parental decision on what was in the best interest of the child. Id. at 73.

I am not an NCP. Not yet, anyway. If I become one, then I may want to join this federal lawsuit.