How are parents' constitutionally protected beliefs and behaviors weighed against children's best interests in child custody decisions?

The Fourteenth Amendment of the United States' Constitution protects against the state's taking a person's life, liberty, or property, without due process of law. This is also known as the Due Process Clause.

The Supreme Court has interpreted this in the family law context to encompass "the right of the individual...to marry, establish a home and bring up children,...and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390 (1923). And more recently, the "liberty interest...the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental liberty interests recognized by this Court...It is cardinal with us that the custody, care and nurture of the child reside first in the parents..." Troxel v. Granville, 530 U.S. 57 (2000) (citations omitted).

This constitutional right to parent without government oversight overlaps with other constitutional interests. For example, freedom of religion and speech (First Amendment), right to travel and so live where a parent chooses (Fifth Amendment), and right to live one's life as one chooses (Fourteenth Amendment discussed above). So, a parent has constitutional rights to believe and behave as he or she chooses, provided such behaviors are legal.

But are these constitutional rights absolute - and without limitation?

In contested parenting and child custody litigation, the court must determine what custodial arrangement is in the children's best interests. This includes deciding physical custody/parenting time (so, where a child lives and when a child spends time with each parent), legal custody/decision making (so, who makes decisions about a child's health, education, and religious upbringing), and any conditions necessary to protect a child from actual harm when with a parent.

The court (and, so, the State) is entitled to decide parenting and child custody for parents who cannot agree because the State is entitled to act as parents patiae, to protect the health, safety, and welfare of its citizens who cannot take care of themselves, such as minor children. Boswell v. Boswell, 352 Md. 204 (1998). Otherwise put, the State is entitled to step in to protect minor children and to put the children's rights above the parents'.

Consistent with the State's prioritization of children over parents, the governing standard for courts to deciding parenting and child custody is the "best interests of the child". In Maryland, parental fitness is a required "best interests" consideration, among many others. One Maryland appellate opinion even recognized "the physical, spiritual and moral well-being of the child" as a "best interests" factor. Hild v. Hild, 221 Md. 349 (1960). As of this writing, the most recent statement of Maryland's "best interests" factors is contained in Maryland Rule 9-204.1, effective January 1, 2020.

A parents' behavior, if lawful, is an exercise of constitutional rights. Those constitutional rights extend to how a parent raises his or her child. However, parental constitutional rights take a back seat to the child's best interests IF the parents' behavior itself has an adverse effect upon or actual harm to the wellbeing of the child. The courts refer to this as a "nexus".

The nexus approach requires courts first to identify if there is actual harm. If there is actual harm, then the court must consider whether the harm is connected to the parent's behavior. And, the courts have taken this one (somewhat troubling) step further by recognizing that the actual harm need not have actually occurred yet. Specifically that a court need not "sit idly by and wait until a child is actually harmed...If there is sound evidence demonstrating that a child is likely to be harmed down the road, but there is no present concrete finding of harm, a court may still consider a child's future best interests and restrict visitation. The need for a factual finding of harm to the child requires that the court focus on evidence-based factors and not on stereotypical presumptions of future harm."

Yes. Boswell v. Boswell tells us that "n a custody or visitation dispute, the question should be 'hat is the effect of this parental behavior on the children?' not, `s this behavior good or bad?'". A more recent decision, Azizova v. Suleymanov, a November 19, 2019 Court of Special Appeals opinion, on the subject of judicial bias in child custody decisions, states: "Unequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child...In between, a trial judge must determine whether a particular issue related to a parent presents harm to the health and welfare of a child or affects the child's development, and whether there is a nexus between the parental issue and any adverse impact on the child's overall well-being...In situations, however, where a trial judge, while assessing a particular factor, has been guided by their personal beliefs in fashioning an outcome rather than by the evidence, we and our colleagues on the Court of Appeals have vacated that decision."

At its simplest, in child custody litigation, the Judge's or Magistrate's decision is a substitution of the jurist's judgment for the parents' about what is in the child's best interests. This required substitution of judgment is fraught with the potential for stereotyping and bias. Especially when a parent's constitutionally protected behavior may be offensive or non-traditional.

For example, what if a parent participates in a hate group or uses hate speech? Or, parent interests include non-traditional, stigmatized, or potentially risky behavior? Pornography? Sexually non-traditional or risky behavior? Religious or political extremism? Non-traditional medical beliefs? Smoking? Guns? What if a parent wants to raise their children with like beliefs and behaviors (again, assuming that legal both for parent and child)?

And, this risk for stereotyping and bias is by no means unique to the jurist hearing and deciding the case. Rather, this potential risk arises from everyone in the courtroom. The parents themselves, their attorneys (if represented), as well as fact and expert witnesses. Not because people are bad. But, because the human brain is designed to think that way.

In addition to the nexus to actual harm to the child standard discussed above, there are other ways of insulating against stereotyping and bias. Chiefly, the ethical standards governing attorneys, Judges, and Magistrates.

Maryland Rule 19-301.16 allows attorneys to decline or terminate client representation when "the client insists upon action or inaction that the attorney considers repugnant or with which the attorney has a fundamental disagreement". Otherwise stated, attorneys should not represent clients if the attorney's beliefs fundamentally undermine the attorney's representation and duty of loyalty. This calls for attorney awareness and self-selection from representation if the attorney is not well suited to the client and facts of the case.

If representation is undertaken, Maryland Rule 19-302.1 and its comment permit the attorney to "exercise independent professional judgment and render candid advice. In rendering advice, an attorney may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." and "It is proper for an attorney to refer to relevant moral and ethical considerations in giving advice. Although an attorney is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied." I interpret these to call upon the attorney to inform the client of the potential optics and ramifications of the client's conduct and the challenges that may arise from the client's behavior within the best interests child custody legal standard.

Perhaps more importantly, Maryland attorneys are prohibited from engaging in bias or prejudice under Maryland Rule 19-308.4, which designates as professional misconduct: "knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this section". Attorneys are mandated to refrain from bias and prejudice because as the comment to this Section of the Rule states, "a commitment to equal justice under the law lies at the very heart of the legal system. As a result, even when not otherwise unlawful, an attorney who, while acting in a professional capacity, engages in the conduct described in section (e) of this Rule and by so doing prejudices the administration of justice commits a particularly egregious type of discrimination. Such conduct manifests a lack of character required of members of the legal profession." Attorneys are held to a higher standard, and presentation of their cases before the court must reflect this.

Likewise, Maryland Rule 18-102.3 governing Judges states:

(a) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(b) In the performance of judicial duties, a judge shall not, by words or conduct, manifest bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. A judge shall require attorneys in proceedings before the court, court staff, court officials, and others subject to the judge's direction and control to refrain from similar conduct. (emphasis added)

(c) The restrictions of section (b) of this Rule do not preclude judges or attorneys from making legitimate references to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

So Judges are entitled to direct, control, and limit the biased or prejudiced presentations of litigants and their attorneys if attempting to call upon the court to exercise bias and stereotypes in its decision making.

Magistrates are likewise governed by near identical ethical standards found in Maryland Rule 18-202.3:

(a) A judicial appointee shall perform the duties of the position, including administrative duties, without bias or prejudice.

(b) In the performance of the judicial appointee's duties, a judicial appointee shall not, by words or conduct, manifest bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. A judicial appointee shall require attorneys in proceedings before the judicial appointee, court staff, court officials, and others subject to the judicial appointee's direction and control to refrain from similar conduct. (emphasis added)

(c) The restrictions of section (b) of this Rule do not preclude judicial appointees or attorneys from making legitimate references to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

A comment further elaborates: "A judicial appointee must avoid conduct that may reasonably be perceived as prejudiced or biased. Examples of manifestations of bias or prejudice include epithets, slurs, demeaning nicknames, negative stereotyping, attempted humor based upon stereotypes, threatening, intimidating, or hostile acts, suggestions of connections between race, ethnicity, or nationality and crime, and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and attorneys in the proceeding, the media, and others an appearance of bias or prejudice."

Every parent is unique because of their beliefs and behaviors. In result, each family is unique. Parental constitutional rights protect this uniqueness. But, not absolutely and without boundaries. Rather, it is the nexus of harm standard that requires a weighing of parental constitutional rights against the child's best interests. A further check is the ethical obligations of courts and attorneys not to stereotype parents and families, especially when confronted with unfamiliar or uncomfortable parental behaviors and beliefs. "How can we make this family more like us?" (whatever "us" is) is NOT what we should be asking ourselves. Rather, we need to be careful and mindful of the interplay between constitutional parental rights, the potential for stereotyping and bias, and the best interests of the child standard.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

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