Whose Children Are They?
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Whose Children Are They?

by Tom Bowden | January 05, 2000

Do parents have the right to decide which friends or extended family their children will spend time with? That’s the specific issue in the case of Troxel v. Granville, scheduled for oral argument January 12 before the Supreme Court. It’s a topic of obvious importance to millions of families, for without the right to control who visits their children, parents cannot possibly govern their children’s upbringing.

But the case presents an even larger issue: Will the Supreme Court reaffirm that the principle of individual rights protects activities, such as child-rearing, not concretely mentioned in the Constitution? Or will the Court add the right to raise one’s children to the growing discard-pile of rights deemed unworthy of protection because the Founding Fathers did not specifically list them? Much more than parental control of visitation hinges on the Court’s choice of constitutional method.

The Troxel case actually consolidates three different disputes, all involving mothers struggling to raise their children in single-parent households, with the fathers missing or deceased. These mothers have been dragged into court by paternal grandparents  — and, in one case, by an ex-boyfriend — under a State of Washington law that permits judges to order visitation by outsiders against a parent’s express wishes if it is deemed “in the best interest of the child.”

But the right to determine a child’s best interests belongs only to its parents, by virtue of the crucial fact that it is their child, not society’s or the State’s. In the absence of demonstrable physical abuse or neglect, parents (including single parents) have the exclusive right to decide what their children will eat, where they will attend school, which morality they will be taught, and with whom they may associate.

Government may properly issue decrees in the best interests of a child only when both parents have relinquished their decision-making rights, as happens for example when a divorcing couple irreconcilably disagrees about where a child should live or attend school. However, the State of Washington law (like similar laws in many other states) improperly dispenses with the requirement of such a forfeiture, thereby making all parental decisions regarding visitation subject to an override by the courts.

Once this collectivist principle is established in law, there is nothing but time and agony between our society and the collectivist hell envisioned millennia ago by the philosopher Plato, who proposed that children be placed at birth in communal houses and brought up according to the wisdom of the community, never even knowing their parents.

Supreme Court precedent supports parents who seek to resist arbitrary governmental control of their children. In the 1923 case of Meyer v. Nebraska, the Court struck down a State law enacted just after World War I that had forbidden the teaching of foreign languages to young children. Rejecting the State’s collectivist premise that such teachings “inculcate in [children] the ideas and sentiments foreign to the best interests of this country,” the Court held that the constitutional right to life and liberty includes, by logical implication, a couple’s right to marry, raise children, and “control the education of their own.”

Two years later, in Pierce v. Society of Sisters, the Court struck down an Oregon statute that had effectively outlawed private schools by making public school attendance mandatory. Holding that the law interfered with “the liberty of parents and guardians to direct the upbringing and education of children under their control,” the Court declared that the “child is not the mere creature of the State.”

Applying similar logic, the Supreme Court of Washington last year held the statute in the Troxel case unconstitutional. It stated that “parents have a right to limit visitation of their children with third persons” and that “to suggest otherwise would be the logical equivalent to asserting that the state has the authority to break up stable families and redistribute its infant population to provide each child with the ‘best family.’”

Will the U.S. Supreme Court likewise affirm that the constitutional right to life and liberty includes the right of parents to raise their children without interference from the State? If so, then the three courageous mothers from the State of Washington will have scored an important victory in the battle for individual rights in America.

About The Author

Tom Bowden

Analyst and Outreach Liaison, Ayn Rand Institute