Do Children Have a

Fundamental Right to
Access Both Parents?
A Legal Memorandum

By

Kevin A. Golembiewski, Esq.

Commission Secretary
August 31, 2015
 I. Introduction
Across the United States, individuals and organizations are working to improve the

outcomes of children. Many such efforts focus on ensuring children have a strong

foundation of familial support. Indeed, research shows that children who have greater

family resources and stability are more likely to achieve successful outcomes.1 Perhaps the

most important family resource is a child’s parents. Nevertheless, countless children do not

have access to both of their parents.2 In 2013, 35% of children in the U.S. were living in

single-parent families. 3 While children of single parents undoubtedly can and often do

become exceptional adults, these children are denied critical financial, emotional, and

social resources by virtue of not having access to one of their parents. Moreover, this

deprivation involves more than lost resources, it involves the loss of an intimate, basic

human relationship and, ultimately, the potential of life-long failure.

Efforts to increase children’s access to their parents must focus both on systemic barriers

and explicit policies and practices that impede this access. A litany of policies in the

criminal justice, social welfare, education, and immigration systems have the effect of

limiting children’s access to both their parents. 4 In order to remove these barriers,

1
Marcia J. Carlson and Mary E. Corcoran, Family Structure and Children’s Behavioral
and Cognitive Outcomes, Journal of Marriage and Family 63 (August 2001).
2
“Access” is defined as being able to maintain a consistent relationship with one’s
parents.
3
Children in Single Parent Families by Race, Kids Count (August 2, 2015):
http://datacenter.kidscount.org/data/tables/107-children-in-single-parent-families-
by#detailed/1/any/false/36,868,867,133,38/10,168,9,12,1,13,185/432,431.
4
See Child Well-Being in Philadelphia: Profiles of Children, Families & Fathers, The
Strong Family Commission (September 2014). For example, as stated by David Hansell,

2
advocates must ensure that policymakers and subsequent funding awards prioritize the well

being of children when making decisions that implicate parents. Advocates must also

marshal legal tools that allow them to directly reform existing policies and practices. These

goals can be achieved through rights-based child advocacy. Framing this issue through the

lens of children’s civil rights provides the legitimacy and legal authority needed to

challenge the status quo and force policymakers to prioritize children’s access to their

parents.

A rights-based approach requires that children have a constitutionally protected right of

access to both their parents – a move away from a predominantly “adult-centered”

analysis.5 However, the proposition that children have an independent right to maintain

primary caregiving relationships has never been openly accepted by the Supreme Court of

the United States.6 Nonetheless, there is a foundation of case law and legal principles that

Principal Deputy Assistant Secretary, U.S. Department of Health and Human Services
(HHS), Administration for Children and Families (ACF), before the U.S. House
Committee on Ways and Means on April 29, 2011, social service programs and systems
dedicated to meeting the needs of children are not, and never were, designed or
organized, to maximize fathers’ contributions to their children’s well-being. Services
targeted at fathers are often subject to short-term funding, and tend not to be a primary
component in the main service activities. Carol L. Mcallister, Patrick C. Wilson, Jeffrey
Burton 2004, From Sports Fans To Nurturers: An Early Head Start Program's Evolution
Toward Father Involvement, Fathering, 2004, at 2, 1, 32-59. Additionally, research
indicates several issues contribute to barriers to father involvement, including the burden
added to an already overwhelming workload. American Humane Association. Bringing
Back the Dads: Changing Practices in Child Welfare Systems. Protecting Children, 2011,
at 2.
5See Gilbert A. Holmes, The Tie That Binds: The Constitutional Right of Children to
Maintain Relationships with Parent-Like Individuals, 53 Md. L. Rev. 358, 361 (1994).
6
Anne C. Dailey, Children’s Constitutional Rights, 95 Minn. L. Rev. 2099, 2162 (2011)
(quotations omitted); see also Michael H. v. Gerald D., 491 U.S. 110, 130 (1989) (“We

3
support this right.7 This foundation offers a feasible way forward for establishing a child’s

right to access her parents.

The goal of this memorandum is to explore the legal foundation for the right of children to

access their parents and provide a rubric for establishing the right. The establishment of

such a right can create a vehicle to enable child and family serving systems to better address

the conundrum of social policy, legal doctrine, and psychological issues that determine the

health of America’s families and children.

II. Brief Legal History of Children’s Rights

There is a long history in the U.S. of children being denied various constitutional rights.

This denial is rooted in the judiciary’s reliance on a choice theory of rights.8 Under choice

theory, rights are derived from an individual’s status as an autonomous, decision-making

being. 9 Because children are viewed as lacking the capacity for autonomous decision-

making, they are often deprived of rights afforded to adults. 10 However, over the past

several decades, courts have increasingly acknowledged children’s rights.

have never had occasion to decide whether a child has a liberty interest, symmetrical with
that of her parent, in maintaining her filial relationship.”).
7
See Holmes, supra note 5 at 358.
8
Dailey, supra note 6. at 2100.
9
Id.
10
Id.

4
In 1932, the Supreme Court expressly held that children have constitutional rights. In

Powell v. Alabama, the Court ruled that children have a right to due process of law. 11 In

1967, this right was expanded upon by the Court in Application of Gault.12 Gault held that
13
the Constitution protects children who face commitment to a state institution.

Consequently, juvenile courts must assure a right to counsel, a right against self-

incrimination, a right to notice of charges, and a right to confront and cross-examine

accusers.14

Gault coincided with a social and legal movement for children’s rights. The movement

took force in the 1960’s and 1970’s. 15 During this period, advocates and organizations

argued that children are entitled to the same legal protections as adults. The fight for

children’s rights was compared to efforts of other historically marginalized groups. In “A

‘Bill of Rights’ For Children,” Henry, H. Foster, Jr. states that “[t]he same arguments that

were advanced for and against the abolition of slavery and the emancipation of women

recur when issues arise regarding the moral and legal rights of children.”16

11
287 U.S. 45, 50, 57-58 (1932).
12
Application of Gault, 387 U.S. 1 (1967).
13
Id. at 4.
14
Id. at 33, 41, 55, 56.
15
See Martha Minow, What Ever Happened to Children's Rights?, 80 Minn. L. Rev. 267,
268 (1995); Rosalind Ekman Ladd, Children's Right's Re-Visioned: Philosophical
Readings 2 (1995) (noting that the children's rights movement emerged in the 1960s,
“riding the wave of concern for unfairly treated groups”).
16
Henry H. Foster, Jr., A “Bill of Rights” For Children, Charles C. Thomas Pub. Ltd.
(1974): p. 6.

5
Legal decisions around this time reflected “shifting views of the legal and political status

of children and young people.”17 The Supreme Court assured public school students First

Amendment protections in case involving students protesting the Vietnam War. The Court

also held that children have a right to various procedural protections under the Due Process

Clause when facing school suspension.

At the same time, illustrating continued reservations about the concept of children’s rights,

the Supreme Court made several decisions limiting the rights of children. For example, in

1971, the Court ruled that children do not have a constitutional right to a jury in juvenile

court proceedings, 18 and in 1997, the Court held that no due process proceedings are

required before a teacher uses corporal punishment on a child19

Today, children’s rights continue to be debated in the courts, particularly in the context of

families. Nevertheless, it is undeniable that there has been a steady expansion of children’s

rights in recent decades. This trajectory provides an opportunity for child advocates

committed to strengthening children’s familial rights.

III. The Legal Relationship Between Children and Parents

To date, the legal relationship between children and parents has been primarily defined by

parents’ rights. Parents have a fundamental right to raise their children.20 This includes the

17
Minow, 80 Minn. L. Rev. at 276.
18
McKeiver v. Pa., 403 U.S. 528, 551 (1971).
19
Ingraham v. Wright, 430 U.S. 651, 657 (1977).
20
See Meyer v. Nebraska, 262 U.S. 390 (1923); Troxel v. Granville, 530 U.S. 57, 88
(2000); Lassiter v. Dep't. of Soc. Servs., 452 U.S. 18, 27 (1981) (“This Court's decisions

6
right to have access to their children, and decide how their children will be raised.21

Parental rights are based on choice theory and the intimate nature of the parent/child

relationship.22 As stated by the Supreme Court in M.L.B. v. S.L.J.:

Choices about marriage, family life, and the upbringing of children are
among associational rights this Court has ranked as of basic importance in
our society, rights sheltered by the Fourteenth Amendment against the
State's unwarranted usurpation, disregard, or disrespect.23

Hence, the conclusion that parents have a right to child rearing appears to rely on two

conclusions. First, liberty is defined by the ability to make choices. Protecting individuals

from State action that limits choice in fundamental areas of the human experience is of

“basic importance.” Second, the parent/child relationship is essential to the human

experience similar to marriage or other matters of family life.

The presupposition that choice forms the foundation of liberty explains the historical focus

on parents’, as opposed to children’s, rights in the context of the parent/child relationship.

As noted above, given children are perceived to not have the capacity to engage in

autonomous decision-making, concerns about their liberty do not arise.

have by now made plain beyond the need for multiple citation that a parent’s desire for
and right to ‘the companionship, care, custody, and management of his or her children’ is
an important interest that ‘undeniably warrants deference and, absent a powerful
countervailing interest, protection.”).
21
Troxel, 530 U.S. at 88.
22
As discussed infra, the Constitution’s guarantee of personal privacy gives rise to this
right.
23
M.L.B. v. S.L.J., 519 U.S. 102, 116-17 (1996).

7
At the same time, the interests of children are an important factor in determining the

parameters of parents’ rights. For example, scholars have argued that strong parental rights

are critical for protecting children:

Parents’ strong emotional attachment to their children and considerable

knowledge of their particular needs make parents the child-specific
experts most qualified to assess and pursue their children's best interests in
most circumstances. In contrast, the state's knowledge of and commitment
to any particular child is relatively thin. A scheme of strong constitutional
rights shields the parent expert from the intrusive second-guessing of the
less expert state.24

Conversely, concerns about the well-being of children have also led to limitations on

parents’ rights. Prince v. Massachusetts is instructive. In Prince, state child labor laws

prohibited a parent from allowing her child to proselytize the family’s religion. The parent

argued that the laws impeded her constitutional parental rights. But, the Supreme Court

held that the State’s interest in the health of the child outweighed the parent’s rights.25

Although courts have largely focused on parents’ rights when addressing questions

involving the parent/child relationship, several legal scholars have sought to expand the

conceptualization of the relationship to include a child’s right to retain access to primary

caregivers. These efforts have relied on a developmental theory of rights and a welfare

theory of rights.26

24
Emily Buss, “Parental” Rights, 88 Va. L. Rev. 635, 647 (2002).
25
Prince v. Massachusetts, 321 U.S. 158, 160, 170 (1944).
26
Dailey, supra note 5 at 2135-36, 2143-44.

8
Under a developmental theory of rights, all persons have a right to autonomy and self-

determination. Realizing this right requires a child to develop the capacity for independent

decision-making. A child’s ability to develop this capacity is dependent on opportunities

to access support and resources critical to child development. This support is provided

through caregiving relationships. Accordingly, access to these relationships is essential to

self-determination and such access must be protected.

A welfare theory of rights posits that children are entitled to have their fundamental needs

met and protected. In order to ensure these needs are met, children must have access to

primary caregivers. Therefore, a right of access to caregivers emanates from children’s

fundamental interest in having their needs met.

Importantly, each of these approaches frame a child’s right of access to caregivers as a

means to some other end goal. Under a developmental theory, the right is derivative of

children’s interest in self-determination, and under a welfare theory, the right is a

consequence of concerns about child well-being. Thus, these theories deviate from the

rationale put forth by Courts in establishing rights to familial relationships: the

relationships are essential, intimate parts of the human experience. In departing from this

justification for familial rights, the theories are less supported by legal precedent. To

establish the right of children to access their parents, an approach is needed that is rooted

in the fundamental nature of the parent/child relationship.

9
 IV. Exploring the Legal Foundation

The Supreme Court has recognized a number of relationships, including parents’

relationship to their children, as being protected under the Constitution’s guarantee of

personal privacy. The jurisprudence on these relationships provides a foundation for

establishing a child’s right to access both parents. This foundation is further buttressed by

international law and norms, which are viewed as persuasive authority for constitutional

questions.

In considering the realm of privacy rights protected by the Constitution, the

Supreme Court in Roe v. Wade stated:27

Only personal rights that can be deemed “fundamental” or “implicit in the

concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325
(1937), are included in this guarantee of personal privacy. . . [T]he right
has some extension to activities relating to marriage, Loving v. Virginia,
388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535,
541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454
(White, J., concurring in result); family relationships, Prince v.
Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education,
Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska,
supra.

The characteristics of child rearing and marriage that make these relationships fundamental

are present in a child’s relationship to her parents.

Meyer v. Nebraska was one of the first Supreme Court cases to identify parent’s

childrearing rights as constitutionally protected. In Meyer, the Court explained that parents’

childrearing rights are essential “to the orderly pursuit of happiness” and described the

27
410 U.S. 113, 152-53 (1973).

10
rights as “natural.”28 Childrearing rights are necessary to the pursuit of happiness because

of the natural bond between parents and children. As a result of this bond, the well being

of parents and children are interdependent. Therefore, parents cannot adequately pursue

happiness if they are not empowered to ensure the welfare of their children. Likewise, a

child’s right to access her parents is a natural right that is critical to the child’s pursuit of

happiness. The parent/child bond provides children with companionship, love, and a sense

of belonging. Denying a child this bond leaves an unnatural void that severely impedes her

pursuit of happiness.

Consistent with this analysis, some courts have recognized the importance of the

parent/child bond for both parents and children. In Smith v. City of Fontana, the Ninth

Circuit Court of Appeals stated:

We now hold that this constitutional interest in familial companionship

and society logically extends to protect children from unwarranted state
interference with their relationships with their parents. The companionship
and nurturing interests of parent and child in maintaining a tight familial
bond are reciprocal, and we see no reason to accord less constitutional
value to the child-parent relationship than we accord to the parent-child
relationship.

818 F.2d 1411, 1418 (9th Cir. 1987) overruled on other grounds by Hodgers-Durgin v. de

la Vina, 199 F.3d 1037 (9th Cir. 1999). In addition to confirming the fundamental nature

of the child-parent relationship, Smith provides explicit precedential support for a child’s

right of access to both parents.

28
Meyer, 262 U.S. at 399, 400.

11
As with childrearing, marriage is viewed as a fundamental right. In Loving v. Virginia, the

Supreme Court explained that people have a Constitutional right to marriage because it is

“essential to the orderly pursuit of happiness” and is “fundamental to our very existence

and survival.” 29 These characteristics are attributed to marriage, in part, because of its

relationship to procreation. Marriage serves as the institution that fosters procreation,

which is necessary for humankind’s survival. But, procreation alone is inadequate to

preserve and advance society. In order to ensure a “next generation” of human capital that

maintains society, children must be protected and their well-being nurtured. Parents serve

as the protectors of children and, therefore, play an important role in this process. Thus,

the rationale for marriage as a fundamental right can also be applied to the right of children

to access their parents.

In addition to this foundation of legal precedent, international law and norms lend support

to the establishment of a right of access to parents. Article VII of the United Nations

Convention on the Rights of the Child states “the child shall have . . . the right to know and

be cared for by his or her parents.”30 According to the Supreme Court in Roper v. Simmons,

“[t]he opinion of the world community, while not controlling our outcome, does provide

respected and significant confirmation for our own conclusions.”31 Given the Convention

29
388 U.S. 1, 12 (1967).
30
Notably, other than the United States and Somalia, every member of the United
Nations is a party to the Convention.
31
125 S. Ct. 1183, 1200 (2005).

12
embodies the opinion of the world community, its acknowledgment of a right to access

parents buttresses the legal foundation for this right in the United States.

V. Establishing the Right

Establishing a constitutional right is a dialectical process that involves an inter-play

between the courts and society. The recent movement to establish a right to marriage,

regardless of one’s sexual orientation, is informative. Advocates of this right engaged in a

multi-pronged strategy, involving legal efforts and campaigns designed to garner public

support for marriage equality. Changing norms regarding sexual orientation and marriage

led to small legal victories. These victories helped mobilize efforts to further increase

public support for marriage equality, and this support led to greater legal victories. These

efforts culminated in Obergefell v. Hodges, the Supreme Court decision that formalized

the right to marriage regardless of sexual orientation.

Efforts to form a child’s right of access to both parents must take into account this

dialectical process. Individuals and organizations should engage in public campaigns as

well as more formal organizing efforts designed to achieve legal and policy victories. The

ultimate outcome sought is recognition of a child’s Fourteenth Amendment Due Process

guarantees related to associations and access to both parents, similar to that “long

13
recognized” for parents, including substantive and heightened protection against any

government interference with that fundamental right and liberty interests.32

To realize that goal, the following steps should be prioritized:

a. Educate the public on the state of children’s rights in the context of

familial relationships and the consequences of the limited rights provided
to children in this context.
b. Engage in a public relations campaign to raise awareness of the strong
legal foundation for the right.
c. Organize a grassroots campaign to convince government leaders to adopt
policies and practices that formalize the right of children to access their
parents.

Establishing the right of children to access their parents is both feasible and necessary. A

strong legal foundation exists for this right. Strong leadership is needed to move us

forward.

32
Alessia Bell, Public and Private Child: Troxel v. Granville and the Constitutional
Rights of Family Members, 2001, 36 Harv. L. Rev., 36, at 225.

14