OPEXPOSECPS_familylaw_draft

A Non-lawyers compilation as to what the US SUPREME COURT has said about child custody, with opinions.  To be used as a supplemental to the OPSEXPOSECPS, but relevant to the family court system and the many abuses that take place within; To look at existing laws, and use these apply them in the state courts, or expand upon them as part of advocacy, to create new theories, or to create a meaningful discourse as to the present abuses at law.  Draft #1. public revision #1 (minor spelling fixes, additional constitutional rights included). spelling errors happen.

CONTENT:
I.  Intro to Anonymous

II.  Important relevant Vocabulary

III.  Some Basic questions, with answers and opinions

IV.  Selection of SCOTUS rulings on child custody.


I. INTRO
I cannot represent you, nor help you file or draft complaints nor motions, nor accept funds for putting out legal opinions nor for expressing "legal" advocacy, nor can I help you find counsel.  If you have questions, ask the lawyers at avvo or retain your own counsel, or use a search engine and search your home area and free legal aid.  Decisions and statutes can change, so some of these opinions may no longer be valid but for the narrow purpose of this document they are assumed to still be valid.  Assuming they are still valid, what the supreme court says about your constitutional rights is the law of the land and lower judges are obligated to follow.    Nonetheless, if a case is obsolete or a theory is invalid, if you raise the issue then it is for your opponent, or for the court, to show otherwise and their failure to so is a valid waiver.  If a court disagrees with you, then you have raised it in the trial courts for appellate review which can be used in your state to create boundaries for which judges may not cross-although it is suspected that they are crossing these boundaries already.  What is important is to be able to have a discourse about what the law is both inside the court room and on the outside;  To protect our own liberty interest and fairness, and to ensure the judges play by the rules.

*********************************************
What is Anonymous? Anonymous is not a group, it is not a person. It is an idea. Specifically it is the idea, that all of us deserve FREEDOM.
Freedom of thought, of speech, of expression, of knowledge, of belief.
The Freedom to determine the course and destination of our own lives.
If your share this IDEA, THAN YOU ARE ANONYMOUS.

You have likely heard many things about Anonymous, some of them are true and some of them are not.
We are not hackers.
We are not terrorists.
We are not violent.
We are citizens of the world who bear witness to tyranny, oppression and censorship.
We are activists who seek to change the system and the cycle of corruption.
We seek to create transparency in governments and all institutions of public service.
We resist those who seek to violate our rights as human beings.
As a collective of autonomous individuals however,
WE HAVE NO LEADERS who dictate the methods of resistance.
Some of us are indeed hackers, who use our skills to make critical information available to the public.
Some of us organize protests and rallies.
Some of us volunteer our time to feed those who can’t feed themselves.
We are your neighbours, your friends, and your relatives.
We prepare your food, repair your appliances, write your books, compose your music, and create your technology.
We are your postal workers, barbers, store clerks and lawyers.
We are socialists, capitalists, we are atheists and we are religious, WE ARE EVERYONE
and we are no one.
NONE OF US ARE AS POWERFUL AS ALL OF US.


II. VOCABULARY (starts with #)

#"id" or idem
a previously reference citation in the original document

#"supra"
Supra (Latin for "above") is an academic and legal citation signal used when a writer desires to refer a reader to an earlier-cited authority. For
example, an author wanting to refer to a source in his or her third footnote would cite: See supra note 3.

#ne exeat right
an equitable writ preventing another party from leaving the state or country.

author's opinion:  Even if you can take your child out of state, it is a good idea to get your plans spelled out, agreed to, and signed. You don't need someone vindictively trying to say you kidnapped your own kids.  Also keep a record if anything causes a delay, if you get a flat tire you'll want a receipt, or get trapped by a flood, tornado, etc, then, if it is safe to do so, take pictures.

#equity:
these are court made laws inherited from courts of chancery.  Typically, in the USA, they are issued when:

1. A party facing an imminent and irreparable injury in the absence of its issuance is likely to success on the merits on its issuance.

2. That the court shall consider the interest of both parties

3. The court must weigh the public interest

4. He who comes into a court of equity, must have clean hands.  Those who have done wrongdoing cannot gain in the court of equity.

5. The standard of review is pretty low, preponderance of the evidence.  It is possible, and unlawful, for a court to use this standard in determining
child custody.


see also [url]http://law.justia.com/cases/federal/district-courts/FSupp/815/328/1584781/[/url]
these axiom lead us to other concepts.

1a.  That equity is improper when there exist an adequate remedy at law-as the court is without jurisdiction.  see Tyler v. Magwire 84 U.S. 253 (1872) [/url]https://supreme.justia.com/cases/federal/us/84/253/[url].  see also judiary act of 1789 section 16.  the "at law" may simply invoke a liberty, for example with offensive speech the adequate remedy is to avert ones eyes not to enjoin the speech so they can suceed without the issuance of equity.  See Bolger v young drug products.  When a defendant has a right to a trial by jury, a case in equity will not be sustained to preserve the 7th amendment.  See Schoenthal v irving trust.  [url]https://supreme.justia.com/cases/federal/us/287/92/case.html[/url]
1b.  That mere apprehension of injury is not enough

1c.  if the equity is not meritorious, it is improper to issue or punish.  Be advised that many judges amd politicians don't care is the equity lacks merit when issuing or dealing punishment.

1d.  Some courts have recognized that when a fix dollar amount is set, that equity is improper.  This may be per 1a, in that a remedy exists in civil tort.  Though this doesn't appear to be fully recognized in all states.

2notea.  While a court can force someone to do something or not to so something, they are generally prohibited from infringing upon certain constitutional rights such as the freedom of speech and assembly.  Though those who violate equity do so at their own peril, judicial review must come prior to an equitable violation.  See for example the difference in Thomas v Collins [url]https://supreme.justia.com/cases/federal/us/323/516/case.html[/url] and Walker v city of Birmingham [url]https://supreme.justia.com/cases/federal/us/388/307/case.html[/url] where one was a true prior restraint and protected in the absence of a clear and present danger, but the later a valid time manner or place restriction and unprotected.  It is best to seek judicial review, as there are too many
abuses and people van be given 10 year felony convictions per the observation in 1c, for things that would otherwise be contempt or not even rising to the level of contempt.

2noteb. The injunction provisions imposing "fixed buffer zone" limitations are constitutional, but the provisions imposing "floating buffer zone" limitations violate the First Amendment. [url]https://supreme.justia.com/cases/federal/us/519/357/case.html[/url]  However there is a right to residential privacy, so an order demanding that you not rest on a sidewalk in front of a persons may have some legal traction.  See Frisby v Schultz [url]https://supreme.justia.com/cases/federal/us/487/474/[/url]

2notec. Injunctions against speech may not be issued ex parte.  see Carroll v princess Anne.  Again, something the courts and politicians ignore.  [url]https://supreme.justia.com/cases/federal/us/393/175/case.html[/url]

2noted.  Injunctions on speech and even personal liberties must be narrowly tailored; it must censor no more protected speech than is necessary to achieve a compelling governmental interest.  see Carrol v Princess anne [url]https://supreme.justia.com/cases/federal/us/393/175/case.html#183[/url]

2notee.  When at 2d and 1a, if the courts cannot enjoin protected speech nor and unprotected speech is already covered by statute, what can they enjoin?  While the courts and the governments may still time manner or place restrictions provide it gives ample alternative channels of communication (and the telephone is a captive audience which can be regulated, and an alternative may be US mail), "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." see Bantom books v Sullivan
[url]https://supreme.justia.com/cases/federal/us/372/58/case.html[/url].

2notef.  'The term "prior restraint" is used "to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984) (emphasis added). Temporary
restraining orders and permanent injunctions-i. e., court orders that actually forbid speech activities-are classic examples of prior restraints.' Alexander v united states.  [url]https://supreme.justia.com/cases/federal/us/509/544/case.html#550[/url]

2noteg.  DO NOT VIOLATE EQUITY.  These rules are provided so that you may help prepare a defense in a court of equity, or to modify, appeal, or dissolve equity.  If you violate equity, even though it may be legal and even though the government is prohibited from prosecuting speech outside of unprotected categories (see us v stevens [url]https://supreme.justia.com/cases/federal/us/559/08-769/opinion.html[/url]), odds are you are going to be railroaded to 5-10 years in prison and may not be able to obtain a bond.  Our politicians and judges are criminals, and you'll just be lead to slaughter.  The USDOJ authorizes this tyranny through the OVW, see 42 USC 3796-hh, and the USDOJ is the only federal enforcement arm of the criminal laws for which the judges are violating.


#chancery:
a court that is authorized to make laws, known as equity


#ICARA (International Child Abduction Remedies Act)
[url]https://travel.state.gov/content/dam/childabduction/International_Child_Abduction_Remedies_Act.pdf[url]

#ICWA (Indian child welfare act)
[url]https://www.law.cornell.edu/uscode/text/25/chapter-21[/url]

#full faith and credit doctrine
[url]https://www.law.cornell.edu/constitution/articleiv[/url]


#parens patriae
[url]http://dictionary.law.com/Default.aspx?selected=1444[/url]

#in loco parentis
[url]https://www.law.cornell.edu/wex/in_loco_parentis[/url]

#partus sequitur ventrem
The idea that the child will have the rights of the mother.  Often seen in slavery and in immigration.
[url]http://legal-dictionary.thefreedictionary.com/Partus+sequitur+ventrem[/url]
see also Pirate v Dalby [url]https://supreme.justia.com/cases/federal/us/1/167/[/url]

#Parental Kidnaping Prevention Act of 1980
see [url]https://www.law.cornell.edu/uscode/text/28/1738A[/url]

#habeas corpus
A write to challenge the detention of someone by the state orother private party.  They can be used to challenge a conviction, the living conditions,
or to set a bond, to to secure visitation rights-possibly more.  This gets determined by a judge.

#de homine repliagiando
Similar to a habeas corpus, rarely used and should be advanced in a corrupt judicual system whereby the jury can decide instead of a judge.

see also the trial of Francis Jenkes [url]http://www.constitution.org/trials/howell/06_howells_state_trials.pdf[/url] after which the parliment passed  the habeas corpus acts of 1676 [url]http://www.constitution.org/eng/habcorpa.htm[/url] see also Pirate v Dalby [url]https://supreme.justia.com/cases/federal/us/1/167/[/url]


#prosecutors/litigators/witness/absolute immunity
The concept words spoken in the office of a court are immune from civil and criminal actions, including judicial funcions.  It should be noted that, Prosecutors and judges are not afforded immunity in the criminal law.  Also if you lie under oath, you can be charged with false statements or perjury.

burns v reed [url]https://supreme.justia.com/cases/federal/us/500/478/case.html#490[/url]
see also Brisco v Lahue finding police officers can lie under oath and be immmune from libel.
[url]https://supreme.justia.com/cases/federal/us/460/325/case.html[/url]
see also [url]http://www.lommen.com/pdf/phi-cole-execsense-immunities-of-lawyers-3-13.aspx[/url]
Judges can be criminally prosecuted.

#interlocutory appeal
the appeal of a court order that does not result in a final disposition.  While the rules may vary and not every state has apellate courts, you will likely need to obtain a certificate of immediate review from the judge.  Also you'll need to file a notice of appeal.

#discretionary appeal
the appeal of a court order that does result in a final disposition.  While the rules may vary and not every state has apellate courts, again you'll need to file a notice of appeal.



#"next friend"
The ability of a person to petition o behalf of another who is either an incompetent or a minor.
[url]https://www.law.cornell.edu/wex/next_friend[/url]

#motions to modify, or vacate,  dissolve, set aside the verdict
Various motions to change or end various court orders.  See the rules of your own state.

#42 usc 1983
see [ur]https://www.law.cornell.edu/uscode/text/42/1983[/url]
  This is a federal civil rights actions that can be used against tortfeasors (individually) and their office (official capacity) when they violate your clearly established constitutional rights with a deliberate indifference.  Private parties can be treated as state actors, see Brentonwood academies v Tennessee Secondary school Athletic Assn [url]https://supreme.justia.com/cases/federal/us/531/288/case.html[/url].  Be sure to name
defendants in their ndividual and official capacity.  Individuals may have qualified immunity.  Their officers may have sovereign immunity if they are the state without a valid waiver.  Municipalities can be liable under the municipal liability test.  See Monell v Social services dept
[url]https://supreme.justia.com/cases/federal/us/436/658/case.html[/url].  It is best if you can find counsel, and 42 usc 1988 allows prevailing party attorneys fees so some may take these cases pro se.  There is a wide variety of uses of these, not just suing for damages.  You can even sue a state
prior to violating the law and seek equitable relief and have a 3 paneled district court declare a law unconstitutional, or forbid a enforcement of a statute.  See steffel v Thomas [url]https://supreme.justia.com/cases/federal/us/415/452/case.html[/url].  But do not violate the law before a court issues the order.  42 usc 1983 can also be used to enjoin a state prosecution, but that is exceedingly rare.  Compare Dombroski v Pfister
[url]https://supreme.justia.com/cases/federal/us/380/479/case.html[/url]to younger v Harris
[url]https://supreme.justia.com/cases/federal/us/401/37/case.html[/url].

These are not to be used to bring or challenge a domestic relations cases into federal court.  There are other proceedures that could bring a domestic
relations case to federal court such as ICARA or ICWA, of 28 USC 1441.

Second, 1983 litigation can be very complex and difficult to prevail.  By all means find an attorney.

#28 U.S.C. §§ 2281
Authorized a 3 panel district court to review a suit in equity to declare a state law unconstitutional, this was repealed in 1976.

#28 U.S.C. § 1257
[url]http://codes.lp.findlaw.com/uscode/28/IV/81/1257[/url]
Gives the US supreme court authority to hear cases of the top state courts, often from the state supreme courts (In new york the state supreme court is
not the highest state court for example).

#28 USC 2201
[url]https://www.law.cornell.edu/uscode/text/28/2201[/url]
spells out the criteria to be heard in federal court.  Please note that domestic relations (divorce, alimony, child custody) are exceptions)

#28 USC 2202
[url]https://www.law.cornell.edu/uscode/text/28/2202[/url]
authorizes further relief after a declaration has been given

#28 USC 1441
[url]https://www.law.cornell.edu/uscode/text/28/1441[/url]
removes a state civil prosecution into federal court.

#42 USC 2000(cc)-2 also known as RLUIPA
[url]https://www.law.cornell.edu/uscode/text/42/2000cc%E2%80%932[/url]
(a)Cause of action
A person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
(b)Burden of persuasion
If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of religion.
(c)Full faith and credit
Adjudication of a claim of a violation of section 2000cc of this title in a non-Federal forum shall not be entitled to full faith and credit in a Federal court unless the claimant had a full and fair adjudication of that claim in the non-Federal forum.
(d)Omitted
(e)Prisoners
Nothing in this chapter shall be construed to amend or repeal the Prison Litigation Reform Act of 1995 (including provisions of law amended by that Act).
(f)Authority of United States to enforce this chapter
The United States may bring an action for injunctive or declaratory relief to enforce compliance with this chapter. Nothing in this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General, the United States, or any agency, officer, or employee of the United States, acting under any law other than this subsection, to institute or intervene in any proceeding.
(g)Limitation
If the only jurisdictional basis for applying a provision of this chapter is a claim that a substantial burden by a government on religious exercise affects, or that removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, the provision shall not apply if the government demonstrates that all substantial burdens on, or the removal of all substantial burdens from, similar religious exercise throughout the Nation would not lead in the aggregate to a substantial effect on commerce with foreign nations, among the several States, or with Indian tribes.



#14th amendment

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.


#5th amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

#1st amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

#6th amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

#7th amendment
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. - See more at: http://constitution.findlaw.com/amendment7.html#sthash.YEX0Y9Me.dpuf

#11th amendment
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

but see [url]https://supreme.justia.com/cases/federal/us/134/1/case.html[/url where a citizen of the same state cannot drag the state into court without that state's consent.

author opinion: The courts may be touching the state's treasury when the state is require to pay for blood test (seen below), or pay for defendant's attorneys.  If a state refused to do these jobs, this would effectively be an example of nullification by the states.  Ideally the concept of sovereign immunity, which is technically in the constitution itself, should be abolished.


#fit or unfit to be parents
To be determined by your state.  The supreme court has noted in vague terms, "Accordingly, so long as a parent adequately cares for his or her children
(i. e., is fit)" in Troxel v. Granville  530 U.S. 57 (2000).  But what does "adequately cares" mean?  Nothing from google/justia suggests a federal answer.  So does "adequate care get defines by the state or as words of common understanding?  That is for the states to perhaps figure out.  The american heritage dictionary at this time defines adequate as "Sufficient to satisfy a requirement or meet a need.", a definition from said dictionary for cares could be said "To provide needed assistance or watchful supervision".  So together, "Sufficient to satisfy To provide needed assistance or watchful supervision".  Note: I would use "and" instead of "or".  but what is the "needed assistence" for a minor beyond food, medical, clothing, shelter, and education?  Would it evolve into internet access for school work, the ability of parents to help kids do their home work, failing to curb childhood obesity, instilling religious values at the detriment of their social skills, failing to teach Spanish or English? Meyers v Nebarska and Wisconsin v Yoder may give us some insight as to education and technology-but mind you that the Amish rights may derive from religious rights which are not to be confused with equal protection, but may serve as to undermine a state's compelling interest.  I don't think removing an obese kid from his parents would be viable or healthy as a general rule.


#"best interest"
  Here the court is trying to determine what is the best interest of the child, this presumably can be done in one of two ways.  If the parents are separated, if the parents have been deemed unfit or abandoned.

#Custody
A child is in custody at all times until the age of 18.  Whether the custody is of one or both parents, a foster parent, or a state institution.

#long arm statutes
The statutes that give a courts jurisdiction over someone out of state.  These can vary wildly, and you'll have to check the laws of the state the trial court is in.

#substantive due process
  These are your constitutional rights that a government may not take away without due process of law.

#procedural due process
  These are the processes that must be followed before a government may take away your life, liberty of property rights.  These can vary wildly.

#Property rights.
Traditionally seen as property rights.  The supreme court in the civil rights cases of 1883, mentioned that your property rights also includes your civil rights [url]https://supreme.justia.com/cases/federal/us/109/3/case.html#13[/url]


III.  BASIC QUESTIONS AND ANSWERS


##Can a judge choose the mother over the father by default?
They are not supposed to, that would be a violation of equal protection.  See  Caban v. Mohammed 441 U.S. 380 (1979) which holds Gender-based distinctions "must serve important governmental objectives and must be substantially related to achievement of those objectives" in order to withstand judicial scrutiny under the Equal Protection Clause. Craig v. Boren, 429 U. S. 190, 429 U. S. 197 (1976)."  Caban also holds that, "Contrary to appellees' argument and to the apparent presumption underlying § 111, maternal and paternal roles are not invariably different in importance. Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, this generalization concerning parent-child relations would become less acceptable as a basis for legislative distinctions as the age of the child increased. The present case demonstrates that an unwed father may have a relationship with his children fully comparable to that of the mother. "

So any judge that as a matter of practice just lets the mother have her way by default, should be removed from office, by vote, by impeachment, or by federal prosecution.

##can my grandparents force visitation rights?
  So long as the parents are deemed fit, the parent must be given a special weight in in any procedure that tries to force visitations from the grandparents.  The court does say what these special weights are, but reflects the decisions f a fit parent to decide the best interest of her children.   In a case where the father of the child died, even the grandparents couldn't force visitations.  see Troxel v. Granville  530 U.S. 57 (2000).  Now if a parent was found to be unfit or was arrested, a grandparent may choose to seek custody as close relative.  If your in laws are nuts, it would probably be a good idea to move far away from them to reduce the odds that they will become vindictive.

##Are your children your property?
in May v. Anderson 345 U.S. 528 (1953) the supreme court held that custody children are more precious than property.  That doesn't really explain it, but there is nonetheless a liberty interest. see Santosky v. Kramer 455 U.S. 745 (1982). Is a liberty interest a civil right and thus property?  I haven't found the answer.

##Can these rulings be applied in other hearings that may affect my kids such as protection orders?
In Illinois, protection orders have been declared part of the gamesmanship of a divorce.  That is well belong the criteria that the supreme court has established in bantam books, supra.  If the court of equity for a protection order effectively terminates your right to see your kids, even though you still remain the parent, it may be premature to run to the federal courts seeking equity. as you must exhaust your state remedies first  Prior to any ruling, if you are indigent you need to raise, in the pre-trial, that an adverse ruling such as this could be used to terminate your access to your kids, and that you should demand that the state provide you counsel and to demurrer issues of custody and visitations out of the court of equity as the standard of review is too low for matters of child custody and visitation.  In some states though, child custody may still be equity, so it is still important to demand that the court employs a clear and convincing evidence standard (or even beyond reasonable doubt if your state recognize that standard).  A protection order typically employs a preponderance of the evidence standard, this fails to meet the minimal due process requirements when visitations and custody may be involved. see Santosky v. Kramer 455 U.S. 745 (1982).  Furthermore, you could demurrer on grounds that an adequate remedy exist in formal child custody hearing that employs the proper due process standards and that the use of the courts of equity for a protection order is improper,.  As seen in May v Anderson, that custody of children are more precious than property, the Santosky v Kramer finding that an intermediate burden of proof is the minimum requires when there are matters involved that are more than money.

Author opinions:  So get that case removed from the protection order courts, where the judges, by the way, are criminals; each and every last one of them violate 18 USC 242 when they enjoin speech and assembly.  So if you want into a court of equity, be prepared for the appeal process;  as family courts are, for the most part, operated by nothing short of criminals and the USDOJ are too lazy, too incompetent, and too in bed with them to prosecute.

##What type of due process is required?
In termination hearings they need a clear and convincing evidence standard, and if you are poor they must provide you with counsel, and free transcripts for an appeal. I have found no showing that the supreme court hasn't ruled that state provided attorneys are necessary for pure custody disputes between parents, but in Lassiter v department of social services, the SCOTUS held "[T]he [government] has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision. For this reason, the State may share the indigent parent's interest in the availability of appointed counsel."  So I would think one could argue that the states are required to appoint counsel for indigent parents.  Also per Stanley v Illinois, The state may not presume that the parents are unfit, so ex parte orders should be held to be invalid.

Mind you that if the state does want to take away your child on an ex parte basis, without lawyers, and with a burden of proof less than even a preponderance of evidence, they may charge both parents with a crime-particularly a charge which one cannot bond out of or when a courts abuse your poverty.

authors opinions:  It is my view that warrant should be replaced with summons, except for people who are "dangerous", but that is for the legislature and the courts to decide.  The purpose of pre-trial detention, aside from dangerous people, is about ensuring that people go to the criminal courts
when required.  Remember that in Marcus v search warrants 367 U.S. 717 (1961), even obscene literature is entitled to a due process hearing before being seized by a warrant-but those accused of a crime presently do not prior to being seized.

##Which is the dominating factor, the best interest of a child, or the wants of fit parents?
The supreme court fails to address where there exist a conflict of mixed fit natural [and legitimized] parents, so a mixed interest, unless there is a treaty involved, gets decided by the state and the judge. I think that someone could assert an equal protection to have full shared custody and make their own independent decisions of the kids provided both parents are found fit, but I could see a court may look to the child's education-so living in the same school district would be a positive, or the ability to deliver and drop off your kid to school when required.


authors opinion:  Providing the parents(s) have not been found to be unfit [the state cannot presume they are unfit Stanley v. Illinois, 405 U.S. 645 (1972), also holding that a person must have a due process hearing prior to the kids being taken], the parents are presumed to have the best interest for the child and the courts will not ordinarily question this. see Troxel v. Granville  530 U.S. 57 (2000).  So other than purposes of continued medical treatment in which the harm would be imminent (one parent seeking treatment followed by the other refusing treatment), if both parents are fit the state should stay out of the best interest question whenever possible.  Choice of religious schools may be another conflict, but letting a judge decide is effectively an establishment of a religion.  If the parents are fit they can work it out between them, and if not and the child ends up missing school then perhaps the fitness can be question.


##Can I use habeas corpus procedures in my state?
You'll have to check the laws of your own state, but many states allow it.  the the following url, and manipulate it so your state is in quotes in the search criteria
[url]https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=child+visitation+%22habeas+corpus%22+site:justia.com%2Fcases%2Fohio
[/url]

[url]https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=%22habeas+corpus%22+site:justia.com%2Fcodes%2Fohio[/url]

authors opinion:  If your case is more emotional and/or you have a crooked judge, such as a high profile medical kidnapping, you may want to consider a writ de homine replegiando which is essentially a habeas corpus that gets decided by jury.


##Is an out of state procedure valid in my state?
It depends if that state has jurisdiction over you, also refer to 28 usc 1738A.  If the state never had jurisdiction, see if you can file a motion to set aside the verdict.

again manipulate this url to see how the courts have ruled on the long arm statutes in the filing state.
[url]https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=site%3Ajustia.com%2Fcases%2Fohio%20%22long%20arm%20statute%22[/url]
Also see the international shoe case which calls for fundamental fairness.  [url]https://supreme.justia.com/cases/federal/us/326/310/case.html[/url]


##What do I have to do to maintain a liberty interest in my right to raise my kid?
Per Lehr v. Robertson  463 U.S. 248 (1983), the supreme court has recognized establishing any custodial, personal, or financial relationship as being relevant to the test of whether a parent has abandoned a child.  The court doesn't say at a minimum how many of these must be met, just that there was none of these present.  But even a non-custodial parent doesn't automatically have their parental rights terminated, nor am I aware that has a court terminated a persons parental rights as an alternative to escaping jail for failure to pay child support (when unable to pay). In Quilloin v. Walcott 434 U.S. 246 (1978) where these were not present, the supreme court acknowledge Quilloin's failure to to explain why they were exempt from carrying our certain parental duties-which suggest explaining a deficiency may be an option.  In Lassiter v. Department of Social Svcs. 452 U.S. 18 (1981), counsel was denied on the basis that Lasiter had not expressed interest in attending the hearing and these failure to appears consequently lead up to the termination of parental rights.  So attending hearings is mandatory.

The supreme court hasn't defined how long of a period of being absence this is. But had Lassiter, who was locked away for murder, attender her hearings she would have been allowed counsel to attempt to protect her parental rights.  Lots of bad things can happen to people from false imprisonments, to being hit by a bus, to suffering extreme depression from a loss that could cause periods of abandonment.  In Santosky v. Kramer 455 U.S. 745 (1982), the court noted that even parents retain their liberty interest in their kids even if at some point a child does go into a temporary home or the parents haven't been model parents.


##What factors could be used to increase the burden of proof to beyond a reasonable doubt?
check your own statutes, court rules, and case laws if your own state requires this burden.  The bar minimum per child custody is a clear and convincing evidence.


##What are my parental rights if my child is with my ex, in a foster home, in a juvenile detention center, in an adult correctional center or prison, in a hospital, court ordered boarding school?
Ideally you should get a lawyer, even if court appointed. From there you may consider motions to dissolve, modify, or set aside the verdict.  Request a new trial, or have him revoke any plea.  Or consider a writ of habeas corpus or de homine replegiando.


##How do I ensure these standards are applied on the bench/jury trial?
The best way is to put them in a motion prior to the last date to file motions in your bench trial.  They get put on the record and preserved for appeal.  Issues and arguments not raised in the trial court can often be considered waived on appeal.  Also don't assume that your judge knows anything about the law.  There is an old saying based upon an observation, "everybody is presumed to know the law except His Majesty's judges, who have a Court of Appeals set over them to put them right."


##Whose interest prevails? the parents, the guardians, or the kids? the interest of the fit natural [and legitimized] parent(s) prevails, after that it is the best interest of the kids.

##Whose case is this?
If you are a natural [and legitimized] parent, if you are a party to the suit the suit is yours.  If you are not a party to the suit, you may seek what your rights are as an interested party.

##Is a foster home a state institution?
The federal codes do not specifically define the full scope of what a state institution is.  So the definition would then rest in the state, or case laws, and if not there then the dictionary.

##Does a foster family have sovereign immmunity?
  Traditionally they would be seen as private parties and except from say 1983 actions, but one could try to test what the courts would say about foster families serving in place of a traditional role of the state.  I am not aware if the courts have rules on this, and I would presume the courts would say no unless it were a group home.  But still poeple can be sued outside of a 1983 action, so exclusion from 1983 liability doesn't answer the question as to sovereign immunity from civil suits.  You would have to check your own state laws and statutes.

##Are the county/city CPS/DFS an arm of the county or the state?
In some states yes, not sure about all states. To try to get some idea of how your circuit and yoru state defines state actors and the roles of cps, try to manipulate the two urls to your state and your CPS.

federal: [ur]https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=site:justia.com%2Fcases%2Ffederal%2Fdistrict-courts%2Fohio+
%22child+protective+services%22+%22arm+of+the+state%22[/ur]
state: [ur]https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=site:justia.com%2Fcases%2Ffederal%2Fdistrict-courts%2Fohio+
%22child+protective+services%22+%22sovereign+immunity%22[/url]


##How does the state where a proceeding take place define residence or domicile?
For a federal definition see: Mississippi Choctaw Indians v. Holyfield  490 U.S. 30 (1989)
for a state definition see and manipulate the url: [url]https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=site%3Ajustia.com
%2Fcases%2Fohio%20%22domicile%22[/url]

authors opinion: remember state trial court judges are usually not legal experts and they are hardly as cerebral as we would like to think of lawyers in general; they probably sucked at the law which is why they chose a safe job on the bench where most people plead guilty and they don't have to do
anything called work.  Alternatively they are social justice warriors who are pushing their own agenda, and didn't have the ability to do so as attorneys.  So choosing the best legal definition that applies to you may help in the trial court.  The same applies to other legal definitions, and if
you are up against an attorney they will often produce a one liner from a case law and take it wildly out of context.  It would then be your duty to add context to their citation to then undermine their legal argument.

authors second opinion:  When an attorney cites a case law, it is a good idea to look at the arguments that lead up to that decision to also add context to it.  You can also review other cases that cited that case, called shapardizing,  to see how courts after that decision have treated it.  If it is given negative treatment, let the court know it inmotion.  If you think you can create what is called a distinction, that is recognizing that the case law is ordinarily valid but the circumstances in the present case are substantially different to carve out, then do.  Creating a distinction may also be asserting a constitutional right where a defendant in the previous case failed to do so.  Also lawyers will try to create the impression that some words, like say intimidate, should be used as words of common understanding-which if you fail to counter it may cost you your case.  So you'll have to look specifically to the very legal definition they use.  In the case of the word "intimidation", see Virginia v black.  You may also see things like the word "annoy" which is not proscribable, see coates v city of Cincinnati.  If such statutes are still on the books, check to see if the state courts has tried to salvage them or if they left the statute wide open for constitutional challenge.

##If in failure to maintain family custody with my kids, can I maintain my culture with my kids(s)?
This was recognized as a compelling governmental interest behind the indian child welfare act.  Equal protection would seem to demand that if a non-custodial parent expressed an interest in preserving his culture, that the state would try to comply.  However, the indian child welfare act allowed
the Indian tribes to have their own tribunals.  The federal government hasn't given other cultures their own tribunals.


authors opinions:  I would think that it is fair that if your child is forced to go into foster care, that under the equal protection clause that the state tries to find someone compatable with your ethnic or religious culture.  I would think that specifying a church or a social cultural group may give the state some direction as to where to look for an compatible foster family.

##What if my spouse is Indian and our child is domiciled on a reservation and we lose our parental rights?
under 24 USC 1911(a), if the child resides or is domiciled at a reservation, the tribe maintains exclusive jurisdiction.  Under 1911(c), a state proceeding involving an Indian child shall offer the Indian custodian or the tribe itself an opportunity to intervene.

##does my state recognize dual fatherhood? (not to be confused with gay parents)
search case law.  reference to Michael H. v. Gerald D.  491 U.S. 110 (1989), in which the supreme court agreed with the rules of california to deny a  biological father the ability to legitimize his son and assert his rights as a natural parent, where the child was born to a mother who was already
married to another man.

##under what circumstances can you refuse to let cps inspect?
authors opinion:  I don't know.  Obviously if they have a warrant they have a right, or if a person is receiving governmental aid they must unless they lose the benefits,  someone on probation/parole may have to check the terms of their freedom.

##In determining if my ex or I has custody, can a court use my profanity, my statements about my ex online, my poverty, my medicinal marijuana or my gun ownership against me?

author's opinion:  This is another state issue that this time invokes constitutional rights.  A state may certainly regulate say alcohol, see California v Larue.  The dissent in  Fcc v pacifica foundation, recognized that maybe a parent wanted their children to be familair woth George Carlin's 7 dirty words.  In butler v michigan, the courts refused to let speech be reduced to what is permissible onto to the sandbox.  What if the mother fears her ex will break in and kill her but no proof?  And if the mother a parent is a jerk, certainly other people will be saying it and not just the parent. So denying one party from saying it is speaker based discriminating (see coates v city of cincinatti), and denying a party from
expressing their views is both content and view point discrimination (see RAV v city of st paul, or texas v johnson). The 14th amendment extends your constitutional rights to the states, New york times v the united states notes that this includes government itself including the courts of equity.  So when a constitutional amendment says congress may not infringe, it is essentually saying that the courts may not infringe either.  So some of these "best interest" of the child considerations should not be used against someone in any court unless there is a showing that the parent is unfit (i.e. leaving loaded guns where they are accessible to children), and to the extent that the state extorts your kids for your constitutional or "civil rights", I don't think the state has virtually no morality in conducting extortion and that extortion should be grounds for prosecution under 18 usc 242.  Remember, your "civil rights" are your property. As far as medical marijuana at the time of this writing at the federal level it is still
illegal.


##If two undocumented people are married at the time of their child's birth which happens outside of the US, and that child's biological father is an American, is the biological father barred from asserting that his daughter is a us citizen?
You'll have to see what your state says about situations similar to those in Michael H. v. Gerald D.  491 U.S. 110 (1989).

author opinion:  I would think that if the "child" was under 18, that the courts may choose to have the child be with his legal parents if situations similar to the case above.  If the "child" was an adult, I would think a court could be more flexible to the wishes of the "child" since the "child" is no longer bound to the wishes of the legal parents under normal circumstances and would no longer be invasive.

*******************************************************************
Lehr v. Robertson  463 U.S. 248 (1983)


1. Appellant's rights under the Due Process Clause were not violated. Pp. 463 U. S. 256-265.

(a) Where an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," Caban v. Mohammed, 441 U. S. 380, 441 U. S. 392, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. But the mere existence of a biological link does not merit equivalent protection. If the natural father fails to grasp the opportunity to develop a relationship with his child, the Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie. Pp. 463 U. S. 256-263.

(b) Here, New York has adequately protected appellant's inchoate interest in assuming a responsible role in the future of his child. Under New York's special statutory scheme, the right to receive notice was completely within appellant's control. By mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any adoption proceedings. The State's conclusion that a more open-ended notice requirement would merely complicate the adoption process, threaten the privacy interests of unwed mothers, create the risk of unnecessary controversy, and impair the desired finality of adoption decrees cannot be characterized as arbitrary. The Constitution does not require either the trial judge or a litigant to give special notice to nonparties who are presumptively capable of asserting and protecting their own rights. Pp. 463 U. S. 263-265.

2. Nor were appellant's rights under the Equal Protection Clause violated. Because he has never established a substantial relationship with his child, the New York statutes at issue did not operate to deny him equal protection. Cf. Quilloin v. Walcott, 434 U. S. 246. Appellee mother had a continuous custodial responsibility for the child, whereas appellant never established any custodial, personal, or financial relationship with the child. In such circumstances, the Equal Protection Clause does not prevent a State from according the two parents different legal rights. Caban v. Mohammed, supra,
distinguished. Pp. 463 U. S. 265-268.


@258:   Thus, the "liberty" of parents to control the education of their children that was vindicated in Meyer v. Nebraska, 262 U. S. 390 (1923), and Pierce v. Society of Sisters, 268 U. S. 510 (1925), was described as a "right, coupled with the high duty, to recognize and prepare [the child] for additional obligations." Id. at 268 U. S. 535. The linkage between parental duty and parental right was stressed again in Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944), when the Court declared it a cardinal principle "that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."In these cases, the Court has found that the relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection.

Smith v. Organization of Foster Families  431 U.S. 816 (1977)
@837
he record in this case indicates that nearly 60% of the children in foster care in New York City have experienced more than one placement, and about 28% have experienced three or more. App. 189a. See also Wald 645-646; Mnookin I 625-626. The intended stability of the foster-home management is further damaged by the rapid turnover among social work professionals who supervise the foster care arrangements on behalf of the State. Id. at 625; Rein, Nutt, & Weiss 41; Kadushin 420. Moreover, even when it is clear that a foster child will not be returned to his natural parents, it is rare that he achieves a stable home life through final termination of parental ties and adoption into a new permanent family. Fanshel, Status Changes of Children in Foster Care: Final Results of the Columbia University Longitudinal Study, 55 Child Welfare 143, 145, 157 (1976); Mnookin II 275-277; Mnookin I 612-613. See also n 23, supra.

Cleveland Board of of Education v. LaFleur  414 U.S. 632 (1974)
"This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. "

@645
"It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents. It may also be that Stanley is such a parent, and that his children should be placed in other hands. But all unmarried fathers are not in this category; some are wholly suited to have custody of their children."

Id. at 405 U. S. 654 (footnotes omitted). Hence, we held that the State could not conclusively presume that any particular unmarried father was unfit to raise his child; the Due Process Clause required a more individualized determination. See also United States Dept. of Agriculture v. Murry, 413 U. S. 508; id. at 413 U. S. 514-517 (concurring opinion); Bell v. Burson, 402 U. S. 535; Carrington v. Rash, 380 U. S. 89.

*************************
Prince v. Massachusetts  321 U.S. 158 (1944)
@166
 Previously, in Pierce v. Society of Sisters, 268 U. S. 510, this Court had sustained the parent's authority to provide religious with secular schooling, and the child's right to receive it, as against the state's requirement of attendance at public schools. And in Meyer v. Nebraska, 262 U. S. 390, children's rights to receive teaching in languages other than the nation's common tongue were guarded against the state's encroachment. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Pierce v. Society of Sisters, supra. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.

But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. Reynolds v. United States, 98 U. S. 145; Davis v. Beason, 133 U. S. 333. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's wellbeing, the state, as parens patriae, may restrict the parent's control by requiring school attendance, [Footnote 9] regulating or prohibiting the child's labor [Footnote 10] and in many other ways. [Footnote 11] Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. [Footnote 12] The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y. 201, 68 N.E. 243. [Footnote 13] The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare, and that this includes, to some extent, matters of conscience and religious conviction.


********************
U.S. Supreme Court  Stanley v. Illinois, 405 U.S. 645 (1972)


1. Under the Due Process Clause of the Fourteenth Amendment petitioner was entitled to a hearing on his fitness as a parent before his children were taken from him. Pp. 405 U. S. 647-658.

(a) The fact that petitioner can apply for adoption or for custody and control of his children does not bar his attack on the dependency proceeding. Pp. 405 U. S. 647-649.

(b) The State cannot, consistently with due process requirements, merely presume that unmarried fathers in general, and petitioner, in particular, are unsuitable and neglectful parents. Parental unfitness must be established on the basis of individualized proof. See Bell v. Burson, 402 U. S. 535. Pp. 405 U. S. 649-658.

2. The denial to unwed fathers of the hearing on fitness accorded to all other parents whose custody of their children is challenged by the State constitutes a denial of equal protection of the laws.

@561
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements." Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 95 (1949) (Frankfurter, J., concurring).


@562
For its part, the State has made its interest quite plain: Illinois has declared that the aim of the Juvenile Court Act is to protect "the moral, emotional, mental, and physical welfare of the minor and the best interests of the community" and to"strengthen the minor's family ties whenever possible, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal. . . ." Ill.Rev.Stat., c. 37, § 701-2. These are legitimate interests, well within the power of the State to implement. We do not question the assertion that neglectful parents may be separated from their children.


@652-653
Indeed, if Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family.

@564-565
It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents. [Footnote 6] It may also be that Stanley is such a parent, and that his children should be placed in other hands. But all unmarried fathers are not in this category; some are wholly suited to have custody of their children. [Footnote 7] This much the State readily concedes, and nothing in this record indicates that Stanley is or has been a neglectful father who has not cared for his children. Given the opportunity to make his case, Stanley may have been seen to be deserving of custody of his offspring. Had this been so, the State's statutory policy would have been furthered by leaving custody in him.

@567-568
The State's interest in caring for Stanley's children is de minimis if Stanley is shown to be a fit father. It insists on presuming, rather than proving, Stanley's unfitness solely because it is more convenient to presume than to prove. Under the Due Process Clause, that advantage is insufficient to justify refusing a father a hearing when the issue at stake is the dismemberment of his family.
**************************************************
May v. Anderson 345 U.S. 528 (1953)
The question presented is whether, in a habeas corpus proceeding attacking the right of a mother to retain possession of her minor children, an Ohio court must give full faith and credit to a Wisconsin decree awarding custody of the children to their father when that decree is obtained by the father in an ex parte divorce action in a Wisconsin court which had no personal jurisdiction over the mother. For the reasons hereafter stated, our answer is no.

@532 "It is well settled that habeas corpus is not the proper or appropriate action to determine, as between parents, who is entitled to the custody of their minor children."

@533
Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state where a mother is neither domiciled, resident nor present may cut off her immediate right to the care, custody, management, and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody.
@534
 In the instant case, we recognize that a mother's right to custody of her children is a personal right entitled to at least as much protection as her right to alimony.
@534
 We find it unnecessary to determine the children's legal domicile because, even if it be with their father, that does not give Wisconsin, certainly as against Ohio, the personal jurisdiction that it must have in order to deprive their mother of her personal right to their immediate possession.

***********************************
Quilloin v. Walcott 434 U.S. 246 (1978)

@255-256
Appellant contends that, even if he is not entitled to prevail as a matter of due process, principles of equal protection require that his authority to veto an adoption be measured by the same standard that would have been applied to a married father. In particular, appellant asserts that his interests are indistinguishable from those of a married father who is separated or divorced from the mother and is no longer living with his child, and therefore the State acted impermissibly in treating his case differently. We think appellant's interests are readily distinguishable from those of a separated or divorced father, and accordingly believe that the State could permissibly give appellant less veto authority than it provides to a married father.

Although appellant was subject, for the years prior to these proceedings, to essentially the same child support obligation as a married father would have had, compare § 74-202 with § 74-105 and § 30-301, he has never exercised actual or legal custody over his child, and thus has never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child. Appellant does not complain of his exemption from these responsibilities and, indeed, he does not even now seek custody of his child. In contrast, legal custody of children is, of course, a central aspect of the marital relationship, and even a father whose marriage has broken apart will have borne full responsibility for the rearing of his children during the period of the marriage. Under any standard of review, the State was not foreclosed from recognizing this difference in the extent of commitment to the welfare of the child.

For these reasons, we conclude that §§ 74-203 and 74-403(3), as applied in this case, did not deprive appellant of his asserted rights under the Due Process and Equal Protection Clauses.

***********************************
Wisconson v Yoder US 205


Contrary to the suggestion of the dissenting opinion of MR. JUSTICE DOUGLAS, our holding today in no degree depends on the assertion of the religious interest of the child, as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it is their right of free exercise, not that of their children, that must determine Wisconsin's power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point, since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and, indeed, the record is to the contrary. [Footnote 21] The state's position from the outset has been that it
is empowered to apply its compulsory attendance law to Amish parents in the same manner as to other parents -- that is, without regard to the wishes of the child. That is the claim we reject today.

Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious upbringing and education of their minor children recognized in this Court's past decisions.
It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom comparable to those raised here and those presented in Pierce v. Society of Sisters, 268 U. S. 510 (1925). On this record, we neither reach nor decide those issues.

The State's argument proceeds without reliance on any actual conflict between the wishes of parents and children. It appears to rest on the potential that exemption of Amish parents from the requirements of the compulsory education law might allow some parents to act contrary to the best interests of their children by foreclosing their opportunity to make an intelligent choice between the Amish way of life and that of the outside world. The same argument could, of course, be made with respect to all church schools short of college. There is nothing in the record or in the ordinary course of human experience to suggest that non-Amish parents generally consult with children of ages 14-16 if they are placed in a church school of the parents' faith.

Indeed, it seems clear that, if the State is empowered, as parens patriae, to "save" a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the State will, in large measure, influence, if not determine, the religious future of the child. Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. If not the first, perhaps the most significant statements of the Court in this area are found in Pierce v. Society of Sisters, in which the Court observed:

"Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

The duty to prepare the child for "additional obligations," referred to by the Court, must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship. Pierce, of course, recognized that, where nothing more than the general interest of the parent in the nurture and education of his children is involved, it is beyond dispute that the State acts "reasonably" and constitutionally in requiring education to age 16 in some public or private school meeting the standards prescribed by the State.

However read, the Court's holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a "reasonable relation to some purpose within the competency of the State" is required to sustain the validity of the State's requirement under the First Amendment. To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. But, in this case, the Amish have introduced persuasive evidence undermining the arguments the State has advanced to support its claims in terms of the welfare of the child and society as a whole. The record strongly indicates that accommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.

In the face of our consistent emphasis on the central values underlying the Religion Clauses in our constitutional scheme of government, we cannot accept a parens patriae claim of such all-encompassing scope and with such sweeping potential for broad and unforeseeable application as that urged by the State.

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Caban v. Mohammed 441 U.S. 380 (1979)

@388
Gender-based distinctions "must serve important governmental objectives and must be substantially related to achievement of those objectives" in order to withstand judicial scrutiny under the Equal Protection Clause. Craig v. Boren, 429 U. S. 190, 429 U. S. 197 (1976).

@389
Contrary to appellees' argument and to the apparent presumption underlying § 111, maternal and paternal roles are not invariably different in importance. Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, this generalization concerning parent-child relations would become less acceptable as a basis for legislative distinctions as the age of the child increased. The present case demonstrates that an unwed father may have a relationship with his children fully comparable to that of the mother.

@391
The State's interest in providing for the wellbeing of illegitimate children is an important one. We do not question that the best interests of such children often may require their adoption into new families who will give them the stability of a normal, two-parent home. Moreover, adoption will remove the stigma under which illegitimate children suffer. But the unquestioned right of the State to further these desirable ends by legislation is not, in itself, sufficient to justify the gender-based distinction of § 111. Rather, under the relevant cases applying the Equal Protection Clause, it must be shown that the distinction is structured reasonably to further these ends. As we repeated in Reed v. Reed, 404 U.S. at 404 U. S. 76, such a statutory "classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U. S. 412, 253 U. S. 415 (1920)."

@392
The New York Court of Appeals, in In re Malpica-Orsini, supra, suggested that the requiring of unmarried fathers' consent for adoption would pose a strong impediment for adoption, because often it is impossible to locate unwed fathers when adoption proceedings are brought, whereas mothers are more likely to remain with their children. Even if the special difficulties attendant upon locating and identifying unwed fathers at birth would justify a legislative distinction between mothers and fathers of newborns, [Footnote 11] these difficulties need not persist past infancy. When the adoption of an older child is sought, the State's interest in proceeding with adoption cases can be protected by means that do not draw such an inflexible gender-based distinction as that made in § 111. [Footnote 12] In those cases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child. Indeed, under the statute as it now stands. the surrogate may proceed in the absence of consent when the parent whose consent otherwise would be required never has come forward or has abandoned the child. [Footnote 13] See, e.g., In re Orlando F., 40 N.Y.2d 103, 351

@394
In sum, we believe that § 111 is another example of "overbroad generalizations" in gender-based classifications. See Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 211 (1977); Stanton v. Stanton, 421 U. S. 7, 421 U. S. 115 (1975). The effect of New York's classification is to discriminate against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child. The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children. Section 111 both excludes some loving fathers from full participation in the decision whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the paternal rights of fathers. We conclude that this undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship to the State's asserted interests.

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Pierce v. Society of Sisters  268 U.S. 510 (1925)

2. The Oregon Compulsory Education Act (Oreg. Ls., § 5259) which, with certain exemptions, requires every parent, guardian or other person having control of a child between the ages of eight and sixteen years to send him to the public school in the district where he resides, for the period during which the school is held for the current year, is an unreasonable interference with the liberty of the parents and guardians to direct the upbringing of the children, and in that respect violates the Fourteenth Amendment. P. 268 U. S. 534.

@532
After setting out the above facts, the Society's bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents' choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that, unless enforcement of the measure is enjoined the corporation's business and property will suffer irreparable injury.
@535
under their control: as often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.


********************************************
Meyer v. Nebraska  262 U.S. 390 (1923)
@399
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men

@400-401
The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted. The Ordinance of 1787 declares, "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life, and nearly all the States, including Nebraska, enforce this obligation by compulsory laws.

Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. The calling always has been regarded as useful and honorable, essential, indeed, to the public welfare. Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment.

The challenged statute forbids the teaching in school of any subject except in English; also the teaching of any other language until the pupil has attained and successfully passed the eighth grade, which is not usually accomplished before the age of twelve. The Supreme Court of the State has held that "the so-called ancient or dead languages" are not "within the spirit or the purpose of the act." Nebraska District of Evangelical Lutheran Synod v. McKelvie, 187 N.W. 927. Latin, Greek, Hebrew are not proscribed; but German, French, Spanish, Italian and every other alien speech are within the ban. Evidently the legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.

@403
As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child's health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child.


*****************************************************
FCC v. Pacifica Foundation  438 U.S. 726 (1978) (brenan dissent, not binding)
@770
 As surprising as it may be to individual Members of this Court, some parents may actually find Mr. Carlin's unabashed attitude towards the seven "dirty words" healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words. Such parents may constitute a minority of the American public, but the absence of great numbers willing to exercise the right to raise their children in this fashion does not alter the right's nature or its existence. Only the Court's regrettable decision does that.


********************************
Block v. Rutherford 468 U.S. 576 (1984)
@559
The significant injury to familial relations wrought by the jail's policy of denying contact visitation means that that policy must be tested against a  legal standard more constraining than the rule announced in Wolfish. Our cases leave no doubt that persons' freedom to enter into, maintain, and cultivate familial relations is entitled to constitutional protection. E.g., Santosky v. Kramer, 455 U. S. 745, 455 U. S. 753 (1982). Among the relationships that we have expressly shielded from state interference are bonds between spouses, see Zablocki v. Redhail, 434 U. S. 374 (1978), and between parents and their children, see Wisconsin v. Yoder, 406 U. S. 205 (1972); Stanley v. Illinois, supra. The special status of these relationships in our constitutional scheme derives from several considerations: the fact that traditionally they have been regarded as sacrosanct, [Footnote 2/5] the important role they have played in fostering diversity and pluralism in our culture, [Footnote 2/6] and their centrality to the emotional life of many persons.

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Bellotti v. Baird 443 U.S. 622 (1979)

@638-639
Unquestionably, there are many competing theories about the most effective way for parents to fulfill their central role in assisting their children on the way to responsible adulthood. While we do not pretend any special wisdom on this subject, we cannot ignore that central to many of these theories, and deeply rooted in our Nation's history and tradition, is the belief that the parental role implies a substantial measure of authority over one's children. Indeed,"constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society." Ginsberg v. New York, supra at 390 U. S. 639.

Properly understood, then, the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter. Legal restrictions on minors, especially those supportive of the parental role, may be important to the child's chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding. [Footnote 17] Under the Constitution, the State can"properly conclude that parents and others, teachers for example, who have [the] primary responsibility for children's wellbeing are entitled to the support of laws designed to aid discharge of that responsibility." Ginsberg v. New York, 390 U.S. at 390 U. S. 639.

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Butler v. Michigan  352 U.S. 380 (1957) (bookstore case, not child custody)

@382-383
It is clear on the record that appellant was convicted because Michigan, by § 343, made it an offense for him to make available for the general reading public (and he in fact sold to a police officer) a book that the trial judge found to have a potentially deleterious influence upon youth. The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig. Indeed, the Solicitor General of Michigan has, with characteristic candor, advised the Court that Michigan has a statute specifically designed to protect its children against obscene matter "tending to the corruption of the morals of youth." * But the appellant was not convicted for violating this statute.

We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society. We are constrained to reverse this conviction.


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Elk Grove Unified School Dist. v. Newdow  542 U.S. 1 (2004)
@?
   One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations. Long ago we observed that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 136 U. S. 586, 593– 594 (1890). See also Mansell v. Mansell, 490 U. S. 581, 587 (1989) (“[D]omestic relations are preeminently matters of state law”); Moore v. Sims, 442 U. S. 415, 435 (1979) (“Family relations are a traditional area of state concern”). So strong is our deference to state law in this area that we have recognized a “domestic relations exception” that “divests the federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U. S. 689, 703 (1992). We have also acknowledged that it might be appropriate for the federal courts to decline to hear a case involving “elements of the domestic relationship,” id., at 705, even when divorce, alimony, or child custody is not strictly at issue:


@?
  In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff’s claimed standing. When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. There is a vast difference between Newdow’s right to communicate with his child—which both California law and the First Amendment recognize—and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court.
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Turner v. Rogers, et al.  564 U.S. ___ (2011)
@?  The “private interest that will be affected” argues strongly for the right to counsel that Turner advocates. That interest consists of an indigent defendant’s loss of personal liberty through imprisonment. The interest in securing that freedom, the freedom “from bodily restraint,” lies “at the core of the liberty protected by the Due Process Clause.” Foucha v. Louisiana, 504 U. S. 71, 80 (1992). And we have made clear that its threatened loss through legal proceedings demands “due process protection.” Addington v. Texas, 441 U. S. 418, 425 (1979).

   Given the importance of the interest at stake, it is obviously important to assure accurate decisionmaking in respect to the key “ability to pay” question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt, Hicks, 485 U. S., at 635, n. 7, reinforces the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding. See, e.g., Dixon, 509 U. S., at 696 (proof beyond a reasonable doubt, protection from double jeopardy); Codispoti v. Pennsylvania, 418 U. S. 506, 512–513, 517 (1974) (jury trial where the result is more than six months’ imprisonment). And since 70% of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less, the issue of ability to pay may arise fairly often.
@?
  Doing so, we find three related considerations that, when taken together, argue strongly against the Due Process Clause requiring the State to provide indigents with counsel in every proceeding of the kind before us.

   First, the critical question likely at issue in these cases concerns, as we have said, the defendant’s ability to pay. That question is often closely related to the question of the defendant’s indigence. But when the right procedures are in place, indigence can be a question that in many—but not all—cases is sufficiently straightforward to warrant determination prior to providing a defendant with counsel, even in a criminal case. Federal law, for example, requires a criminal defendant to provide information showing that he is indigent, and therefore entitled to state-funded counsel, before he can receive that assistance. See 18 U. S. C. §3006A(b).

   Second, sometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel. See Dept. of Health and Human Services, Office of Child Support Enforcement, Understanding Child Support Debt: A Guide to Exploring Child Support Debt in Your State 5, 6 (2004) (51% of nationwide arrears, and 58% in South Carolina, are not owed to the government). The custodial parent, perhaps a woman with custody of one or more children, may be relatively poor, unemployed, and unable to afford counsel. Yet she may have encouraged the court to enforce its order through contempt. Cf. Tr. Contempt Proceedings (Sept. 14, 2005), App. 44a–45a (Rogers asks court, in light of pattern of nonpayment, to confine Turner). She may be able to provide the court with significant information. Cf. id., at 41a–43a (Rogers describes where Turner lived and worked). And the proceeding is ultimately for her benefit.

   A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would “alter significantly the nature of the proceeding.” Gagnon, supra, at 787. Doing so could mean a degree of formality or delay that would unduly slow payment to those immediately in need. And, perhaps more important for present purposes, doing so could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive. The needs of such families play an important role in our analysis. Cf. post, at 10–12 (opinion of Thomas, J.).

   Third, as the Solicitor General points out, there is available a set of “substitute procedural safeguards,” Mathews, 424 U. S., at 335, which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (1) notice to the de-fendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay. See Tr. of Oral Arg. 26–27; Brief for United States as Amicus Curiae 23–25. In presenting these alternatives, the Government draws upon considerable experience in helping to manage statutorily mandated federal-state efforts to enforce child support orders. See supra, at 10. It does not claim that they are the only possible alternatives, and this Court’s cases suggest, for example, that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient. Cf. Vitek, 445 U. S., at 499–500 (Powell, J., concurring in part) (provision of mental health professional). But the Government does claim that these alternatives can assure the “fundamental fairness” of the proceeding even where the State does not pay for counsel for an indigent defendant.

   While recognizing the strength of Turner’s arguments, we ultimately believe that the three considerations we have just discussed must carry the day. In our view, a categorical right to counsel in proceedings of the kind before us would carry with it disadvantages (in the form of unfairness and delay) that, in terms of ultimate fairness, would deprive it of significant superiority over the alternatives that we have mentioned. We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).

   We do not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody. See supra, at 10. Those proceedings more closely resemble debt-collection proceedings. The government is likely to have counsel or some other competent representative. Cf. Johnson v. Zerbst, 304 U. S. 458, 462–463 (1938) (“[T]he average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel” (emphasis added)). And this kind of proceeding is not before us. Neither do we address what due process requires in an unusually complex case where a defendant “can fairly be represented only by a trained advocate.” Gagnon, 411 U. S., at 788; see also Reply Brief for Petitioner 18–20 (not claiming that Turner’s case is especially complex).

IV

   The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated.
Under these circumstances Turner’s incarceration violated the Due Process Clause.


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Lassiter v. Department of Social Svcs. 452 U.S. 18 (1981)  (mother was in prison for murder)
@27 This Court's decisions 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." Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651. Here the State has sought not simply to infringe upon that interest, but to end it. If the State prevails, it will have worked a unique kind of deprivation. Cf. May v. Anderson, 345 U. S. 528, 345 U. S. 533; Armstrong v. Manzo, 380 U. S. 545. A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one. [Footnote 3]

Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision. For this reason, the State may share the indigent parent's interest in the availability of appointed counsel.

@33
 Finally, a court deciding whether due process requires the appointment of counsel need not ignore a parent's plain demonstration that she is not interested in attending a hearing. Here, the trial court had previously found that Ms. Lassiter had expressly declined to appear at the 1975 child custody hearing, Ms. Lassiter had not even bothered to speak to her retained lawyer after being notified of the termination hearing, and the court specifically found that Ms. Lassiter's failure to make an effort to contest the termination proceeding was without cause. In view of all these circumstances, we hold that the trial court did not err in failing to appoint counsel for Ms. Lassiter.

@33-34
In its Fourteenth Amendment, our Constitution imposes on the States the standards necessary to ensure that judicial proceedings are fundamentally fair. A wise public policy, however, may require that higher standards be adopted than those minimally tolerable under the Constitution. Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but in dependency and neglect proceedings as well.

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Troxel v. Granville  530 U.S. 57 (2000)

@68-69
Accordingly, so long as a parent adequately cares for his or her children (i. e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. See, e. g., Flores, 507 U. S., at 304.
@70
 In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.

@72 - 73
Considered together with the Superior Court's reasons for awarding visitation to the Troxels, the combination of these factors demonstrates that the visitation order in this case was an unconstitutional infringement on Granville's fundamental right to make decisions concerning the care, custody, and control of her two daughters. The Washington Superior Court failed to accord the determination of Granville, a fit custodial parent, any material weight. In fact, the Superior Court made only two formal findings in support of its visitation order. First, the Troxels "are part of a large, central, loving family, all located in this area, and the [Troxels] can provide opportunities for the children in the areas of cousins and music." App. 70a. Second, "[t]he children would be benefitted from spending quality time with the [Troxels], provided that that time is balanced with time with the childrens' [sic] nuclear family." Ibid. These slender findings, in combination with the court's announced presumption in favor of grandparent visitation and its failure to accord significant weight to Granville's already having offered meaningful visitation to the Troxels, show that this case involves nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her children's best interests. The Superior Court's announced reason for ordering one week of visitation in the summer demonstrates our conclusion well: "I look back on some personal experiences .... We always spen[t] as kids a week with one set of grandparents and another set of grandparents, [and] it happened to work out in our family that [it] turned out to be an enjoyable experience. Maybe that can, in this family, if that is how it works out." Verbatim Report 220-221. As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a "better" decision could be made.

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Santosky v. Kramer 455 U.S. 745 (1982)
@748
 The New York Family Court Act § 622 (McKinney 1975 and Supp.1981-1982) (Fam.Ct.Act) requires that only a "fair preponderance of the evidence" support that finding. Thus, in New York, the factual certainty required to extinguish the parent-child relationship is no greater than that necessary to award money damages in an ordinary civil action.

Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.


@753-754
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

@756
This Court has mandated an intermediate standard of proof -- "clear and convincing evidence" -- when the individual interests at stake in a state proceeding are both "particularly important" and "more substantial than mere loss of money." Addington v. Texas, 441 U.S. at 441 U. S. 424. Notwithstanding "the state's civil labels and good intentions,'" id. at 441 U. S. 427, quoting In re Winship, 397 U.S. at 397 U. S. 365-366, the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with "a significant deprivation of liberty" or "stigma." 441 U.S. at 441 U. S. 425, 426.

@757
Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.
@759-761
The factfinding does not purport -- and is not intended -- to balance the child's interest in a normal family home against the parents' interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home. Rather, the factfinding hearing pits the State directly against the parents. The State alleges that the natural parents are at fault. Fam.Ct.Act § 614.1.(d). The questions disputed and decided are what the State did -- "made diligent efforts," § 614.1.(c) -- and what the natural parents did not do -- "maintain contact with or plan for the future of the child." § 614.1.(d). The State marshals an array of public resources to prove its case and disprove the parents' case. Victory by the State not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children.

At the factfinding, the State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. See Fam.Ct.Act § 631 (judge shall make his order "solely on the basis of the best interests of the child," and thus has no obligation to consider the natural parents' rights in selecting dispositional alternatives). But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.  Thus, at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures.

However substantial the foster parents' interests may be, cf. Smith v. Organization of Foster Families, 431 U.S. at 431 U. S. 845-847, they are not implicated directly in the factfinding stage of a state-initiated permanent neglect proceeding against the natural parents.


@762-764
At such a proceeding, numerous factors combine to magnify the risk of erroneous factfinding. Permanent neglect proceedings employ imprecise substantive standards that leave determinations unusually open to the subjective values of the judge. See Smith v. Organization of Foster Families, 431 U.S. at 431 U. S. 835, n. 36. In appraising the nature and quality of a complex series of encounters among the agency, the parents, and the child, the court possesses unusual discretion to underweigh probative facts that might favor the parent. Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups, id. at 431 U. S. 833-835, such proceedings are often vulnerable to judgments based on cultural or class bias.

The State's ability to assemble its case almost inevitably dwarfs the parents' ability to mount a defense. No predetermined limits restrict the sums an agency may spend in prosecuting a given termination proceeding. The State's attorney usually will be expert on the issues contested and the procedures employed at the factfinding hearing, and enjoys full access to all public records concerning the family. The State may call on experts in family relations, psychology, and medicine to bolster its case. Furthermore, the primary witnesses at the hearing will be the agency's own professional caseworkers, whom the State has empowered both to investigate the family situation and to testify against the parents. Indeed, because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination.

The disparity between the adversaries' litigation resources is matched by a striking asymmetry in their litigation options. Unlike criminal defendants, natural parents have no "double jeopardy" defense against repeated state termination efforts. If the State initially fails to win termination, as New York did here, see n 4, supra, it always can try once again to cut off the parents' rights after gathering more or better evidence. Yet even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts.

Coupled with a "fair preponderance of the evidence" standard, these factors create a significant prospect of erroneous termination. A standard of proof that, by its very terms, demands consideration of the quantity, rather than the quality, of the evidence may misdirect the factfinder in the marginal case. See In re Winship, 397 U.S. at 397 U. S. 371, n. 3 (Harlan, J., concurring). Given the weight of the private interests at stake, the social cost of even occasional error is sizable.


@765-767
The Appellate Division approved New York's preponderance standard on the ground that it properly "balanced rights possessed by the child . . . with those of the natural parents. . . ." 75 App.Div.2d at 910, 427 N.Y.S.2d at 320. By so saying, the court suggested that a preponderance standard properly allocates the risk of error between the parents and the child. [Footnote 14] That view is fundamentally mistaken.

The court's theory assumes that termination of the natural parents' rights invariably will benefit the child. [Footnote 15] Yet we have noted above that the parents and the child share an interest in avoiding erroneous termination. Even accepting the court's assumption, we cannot agree with its conclusion that a preponderance standard fairly distributes the risk of error between parent and child. Use of that standard reflects the judgment that society is nearly neutral between erroneous termination of parental rights and erroneous failure to terminate those rights. Cf. In re Winship, 397 U.S. at 397 U. S. 371 (Harlan, J., concurring). For the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo. [Footnote 16] For the natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family. A standard that allocates the risk of error nearly equally between those two outcomes does not reflect properly their relative severity.

C

Two state interests are at stake in parental rights termination proceedings -- a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings. A standard of proof more strict than preponderance of the evidence is consistent with both interests.

"Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision" at the factfinding proceeding. Lassiter v. Department of Social Services, 452 U.S. at 452 U. S. 27. As parens patriae, the State's goal is to provide the child with a permanent home. See Soc.Serv.Law § 384-b.1.(a)(i) (statement of legislative findings and intent). Yet while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds. [Footnote 17] § 384-b.1.(a)(ii). "[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents." Stanley v. Illinois, 405 U.S. at 405 U. S. 652.

@767
The State's interest in finding the child an alternative permanent home arises only "when it is clear that the natural parent cannot or will not provide a normal family home for the child." Soc.Serv.Law § 384-b.1.(a)(iv) (emphasis added). At the factfinding, that goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home.

@769-770
A majority of the States have concluded that a "clear and convincing evidence" standard of proof strikes a fair balance between the rights of the natural parents and the State's legitimate concerns. See n 3, supra. We hold that such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. We further hold that determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts. Cf. Addington v. Texas, 441 U.S. at 441 U. S. 433.

*************************
U.S. Supreme Court In re Winship, 397 U.S. 358 (1970)
@366
"[a] proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution."

@368
In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault -- notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, "that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process . . . the case against him must be proved beyond a reasonable doubt."
***************************
In re Gault 387 U.S. 1 (1967)
Held:

1. Kent v. United States, 383 U. S. 541, 383 U. S. 562 (1966), held "that the [waiver] hearing must measure up to the essentials of due process and fair treatment." This view is reiterated, here in connection with a juvenile court adjudication of "delinquency," as a requirement which is part of the Due Process Clause of the Fourteenth Amendment of our Constitution. The holding in this case relates only to the adjudicatory stage of the juvenile process, where commitment to a state institution may follow. When proceedings may result in incarceration in an institution of

Page 387 U. S. 2

confinement, "it would be extraordinary if our Constitution did not require the procedural regularity and exercise of care implied in the phrase due process.'" Pp. 387 U. S. 12-31.

2. Due process requires, in such proceedings, that adequate written notice be afforded the child and his parents or guardian. Such notice must inform them "of the specific issues that they must meet," and must be given "at the earliest practicable time, and, in any event, sufficiently in advance of the hearing to permit preparation." Notice here was neither timely nor adequately specific, nor was there waiver of the right to constitutionally adequate notice. Pp. 387 U. S. 31-34.

3. In such proceedings, the child and his parents must be advised of their right to be represented by counsel and, if they are unable to afford counsel, that counsel will be appointed to represent the child. Mrs. Gault's statement at the habeas corpus hearing that she had known she could employ counsel, is not "an intentional relinquishment or abandonment' of a fully known right." Pp. 387 U. S. 34-42.

4. The constitutional privilege against self-incrimination is applicable in such proceedings:

"an admission by the juvenile may [not] be used against him in the absence of clear and unequivocal evidence that the admission was made with knowledge that he was not obliged to speak, and would not be penalized for remaining silent."

"[T]he availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. . . . [J]uvenile proceedings to determine 'delinquency,' which may lead to commitment to a state institution, must be regarded as 'criminal' for purposes of the privilege against self-incrimination."

Furthermore, experience has shown that "admissions and confessions by juveniles require special caution" as to their reliability and voluntariness, and "[i]t would indeed be surprising if the privilege against self-incrimination were available to hardened criminals, but not to children."

"[S]pecial problems may arise with respect to waiver of the privilege by or on behalf of children, and . . . there may well be some differences in technique -- but not in principle -- depending upon the age of the child and the presence and competence of parents. . . . If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary. . . ."

Gerald's admissions did not measure up to these standards, and could not properly be used as a basis for the judgment against him. Pp. 387 U. S. 44-56.

5. Absent a valid confession, a juvenile in such proceedings must be afforded the rights of confrontation and sworn testimony of witnesses available for cross-examination. Pp. 387 U. S. 56-57.

6. Other questions raised by appellants, including the absence of provision for appellate review of a delinquency adjudication, and a transcript of the proceedings, are not ruled upon. Pp. 387 U. S. 57-58.

@13
[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.
@13
These relate to the proceedings by which a determination is made as to whether a juvenile is a "delinquent" as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution.

@14-17 (historical view)
From the inception of the juvenile court system, wide differences have been tolerated -- indeed insisted upon -- between the procedural rights accorded to adults and those of juveniles. In practically all jurisdictions, there are rights granted to adults which are withheld from juveniles. In addition to the specific problems involved in the present case, for example, it has been held that the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to trial by jury. [Footnote 12] It is frequent practice that rules governing the arrest and interrogation of adults by the police are not observed in the case of juveniles. [Footnote 13]

The history and theory underlying this development are well known, but a recapitulation is necessary for purposes of this opinion. The Juvenile Court movement began in this country at the end of the last century. From the juvenile court statute adopted in Illinois in 1899, the system has spread to every State in the Union, the District of Columbia, and Puerto Rico. [Footnote 14] The constitutionality of Juvenile Court laws has been sustained in over 40 jurisdictions against a variety of attacks. [Footnote 15]

The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. They were profoundly convinced that society's duty to the child could not be confined by the concept of justice alone. They believed that society's role was not to ascertain whether the child was "guilty" or "innocent," but "What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career." [Footnote 16] The child -- essentially good, as they saw it -- was to be made "to feel that he is the object of [the state's] care and solicitude," [Footnote 17] not that he was under arrest or on trial. The rules of criminal procedure were therefore altogether inapplicable. The apparent rigidities, technicalities, and harshness which they observed in both substantive and procedural criminal law were therefore to be discarded. The idea of crime and punishment was to be abandoned. The child was to be "treated" and "rehabilitated," and the procedures, from apprehension through institutionalization, were to be "clinical", rather than punitive.

These results were to be achieved, without coming to conceptual and constitutional grief, by insisting that the proceedings were not adversary, but that the state was proceeding as parens patriae. [Footnote 18] The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning is murky, and its historic credentials are of dubious relevance. The phrase was taken from chancery practice, where, however, it was used to describe the power of the state to act in loco parentis for the purpose of protecting the property interests and the person of the child. [Footnote 19] But there is no trace of the doctrine in the history of criminal jurisprudence. At common law, children under seven were considered incapable of possessing criminal intent. Beyond that age, they were subjected to arrest, trial, and in theory to punishment like adult offenders. [Footnote 20] In these old days, the state was not deemed to have authority to accord them fewer procedural rights than adults.

The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty, but to custody." He can be made to attorn to his parents, to go to school, etc. If his parents default in effectively performing their custodial functions -- that is, if the child is "delinquent" -- the state may intervene. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the "custody" to which the child is entitled. [Footnote 21] On this basis, proceedings involving juveniles were described as "civil," not "criminal," and therefore not subject to the requirements which restrict the state when it seeks to deprive a person of his liberty.

@22
[T]the President's Commission on Crime in the District of Columbia. This Commission's Report states:

"In fiscal 1966, approximately 66 percent of the 16- and 17-year-old juveniles referred to the court by the Youth Aid Division had been before the court previously. In 1965, 56 percent of those in the Receiving Home were repeaters. The SRI study revealed that 61 percent of the sample Juvenile Court referrals in 1965 had been previously referred at least once, and that 42 percent had been referred at least twice before." Id. at 773.  Certainly these figures and the high crime rates among juveniles to which we have referred (supra, n 26), could not lead us to conclude that the absence of constitutional protections reduces crime, or that the juvenile system, functioning free of constitutional inhibitions as it has largely done, is effective to reduce crime or rehabilitate offenders.

@22-25 (how records were treated in 1967)

Further, we are told that one of the important benefits of the special juvenile court procedures is that they avoid classifying the juvenile as a "criminal." The juvenile offender is now classed as a "delinquent." There is, of course, no reason why this should not continue. It is disconcerting, however, that this term has come to involve only slightly less stigma than the term "criminal" applied to adults. [Footnote 31] It is also emphasized that, in practically all jurisdictions, statutes provide that an adjudication of the child as a delinquent shall not operate as a civil disability or disqualify him for civil service appointment. [Footnote 32] There is no reason why the application of due process requirements should interfere with such provisions.

Beyond this, it is frequently said that juveniles are protected by the process from disclosure of their deviational behavior. As the Supreme Court of Arizona phrased it in the present case, the summary procedures of Juvenile Courts are sometimes defended by a statement that it is the law's policy "to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past." This claim of secrecy, however, is more rhetoric than reality. Disclosure of court records is discretionary with the judge in most jurisdictions. Statutory restrictions almost invariably apply only to the court records, and even as to those, the evidence is that many courts routinely furnish information to the FBI and the military, and on request to government agencies and even to private employers. [Footnote 33] Of more importance are police records. In most States, the police keep a complete file of juvenile "police contacts" and have complete discretion as to disclosure of juvenile records. Police departments receive requests for information from the FBI and other law enforcement agencies, the Armed Forces, and social service agencies, and most of them generally comply. [Footnote 34] Private employers word their application forms to produce information concerning juvenile arrests and court proceedings, and, in some jurisdictions, information concerning juvenile police contacts is furnished private employers as well as government agencies.

@27-28

Ultimately, however, we confront the reality of that portion of the Juvenile Court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence -- and of limited practical meaning -- that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a "receiving home" or an "industrial school" for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes "a building with whitewashed walls, regimented routine and institutional hours. . . ."[Footnote 38] Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and "delinquents" confined with him for anything from waywardness [Footnote 39] to rape and homicide.

In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase "due process." Under our Constitution, the condition of being a boy does not justify a kangaroo court.

@36-37
Probation officers, in the Arizona scheme, are also arresting officers. They initiate proceedings and file petitions which they verify, as here, alleging the delinquency of the child, and they testify, as here, against the child. And here the probation officer was also superintendent of the Detention Home.  The probation officer cannot act as counsel for the child. His role in the adjudicatory hearing, by statute and, in fact, is as arresting officer and  witness against the child. Nor can the judge represent the child. There is no material difference in this respect between adult and juvenile  proceedings of the sort here involved. In adult proceedings, this contention has been foreclosed by decisions of this Court. [Footnote 57] A proceeding  where the issue is whether the child will be found to be "delinquent" and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, [Footnote 58] to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child "requires the guiding hand of counsel at every step in the proceedings against him."

@41-42  (mind you this case was not treated as a "criminal" case, until the supreme court said it was)
At the habeas corpus proceeding, Mrs. Gault testified that she knew that she could have appeared with counsel at the juvenile hearing. This knowledge is not a waiver of the right to counsel which she and her juvenile son had, as we have defined it. They had a right expressly to be advised that they might retain counsel and to be confronted with the need for specific consideration of whether they did or did not choose to waive the right. If they were unable to afford to employ counsel, they were entitled, in view of the seriousness of the charge and the potential commitment, to appointed counsel unless they chose waiver. Mrs. Gault's knowledge that she could employ counsel was not an "intentional relinquishment or abandonment" of a fully known right.

@44
In reviewing this conclusion of Arizona's Supreme Court, we emphasize again that we are here concerned only with a proceeding to determine whether a minor is a "delinquent" and which may result in commitment to a state institution. Specifically, the question is whether, in such a proceeding, an admission by the juvenile may be used against him in the absence of clear and unequivocal evidence that the admission was made with knowledge that he was not obliged to speak and would not be penalized for remaining silent. In light of Miranda v. Arizona, 384 U. S. 436 (1966), we must also consider whether, if the privilege against self-incrimination is available, it can effectively be waived unless counsel is present or the right to counsel has been waived.

**********************************
Kent v. United States  383 U.S. 541 (1966)

Held: The Juvenile Court order waiving jurisdiction and remitting petitioner for trial in the District Court was invalid. Pp. 383 U. S. 552-564.

(a) The Juvenile Court's latitude in determining whether to waive jurisdiction is not complete. It "assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a 'full
investigation.'"
(b) The parens patriae philosophy of the Juvenile Court "is not an invitation to procedural arbitrariness."

(c) As the Court of Appeals for the District of Columbia Circuit has held, "the waiver of jurisdiction is a critically important'action determining vitally important statutory rights of the juvenile."

(d) The Juvenile Court Act requires "full investigation," and makes the Juvenile Court records available to persons having a "legitimate interest in the protection . . . of the child. . . ." These provisions, "read in the context of constitutional principles relating to due process and the assistance of counsel," entitle a juvenile to a hearing, to access by his counsel to social records and probation or similar reports which presumably are considered by the Juvenile Court, and to a statement of the reasons for the Juvenile Court's decision sufficient to enable meaningful appellate review thereof. Pp. 383 U. S. 557-563.

(e) Since petitioner is now 21, and beyond the jurisdiction of the Juvenile Court, the order of the Court of Appeals and the judgment of the District Court are vacated, and the case is remanded to the District Court for a hearing de novo, consistent with this opinion, on whether waiver was appropriate when ordered by the Juvenile Court.

"If that court finds that waiver was inappropriate, petitioner's conviction must be vacated. If, however it finds that the waiver order was proper when originally made, the District Court may proceed, after consideration of such motions as counsel may make and such further proceedings, if any, as may be warranted, to enter an appropriate judgment."

@650-653
We are of the opinion that the Court of Appeals misconceived the basic issue and the underlying values in this case. It did note, as another panel of the same court did a few months later in Black and Watkins, that the determination of whether to transfer a child from the statutory structure of the Juvenile Court to the criminal processes of the District Court is "critically important." We hold that it is, indeed, a "critically important" proceeding. The Juvenile Court Act confers upon the child a right to avail himself of that court's "exclusive" jurisdiction. As the Court of Appeals has said, "[I]t is implicit in [the Juvenile Court] scheme that noncriminal treatment is to be the rule -- and the adult criminal treatment the exception which must be governed by the particular factors of individual cases."

Harling v. United States, 111 U.S.App.D.C. 174, 177-178, 295 F.2d 161, 164-165 (1961).

Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver, including, of course, a statement of the relevant facts. It may not "assume" that there are adequate reasons, nor may it merely assume that "full investigation" has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal, or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of "full investigation" has been met, and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.

Correspondingly, we conclude that an opportunity for a hearing, which may be informal, must be given the child prior to entry of a waiver order. Under Black, the child is entitled to counsel in connection with a waiver proceeding, and, under Watkins, counsel is entitled to see the child's social records. These rights are meaningless -- an illusion, a mockery -- unless counsel is given an opportunity to function.

The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice. Appointment of counsel without affording an opportunity for hearing on a "critically important" decision is tantamount to denial of counsel. There is no justification for the failure of the Juvenile Court to rule on the motion for hearing filed by petitioner's counsel, and it was error to fail to grant a hearing.

We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial, or even of the usual administrative hearing, but we do hold that the hearing must measure up to the essentials of due process and fair treatment. Pee v. United States, 107 U.S.App.D.C. 47, 50, 274 F.2d 556, 559 (1959).

With respect to access by the child's counsel to the social records of the child, we deem it obvious that, since these are to be considered by the Juvenile Court in making its decision to waive, they must be made available to the child's counsel. This is what the Court of Appeals itself held in Watkins. There is no doubt as to the statutory basis for this conclusion, as the Court of Appeals pointed out in Watkins. We cannot agree with the Court of Appeals in the present case that the statute is "ambiguous." The statute expressly provides that the record shall be withheld from "indiscriminate" public inspection, "except that such records or parts thereof shall be made available by rule of court or special order of court to such persons . . . as have a legitimate interest in the protection. . . of the child. . . ."

D.C.Code § 11- 929(b) (1961), now § 11-1586(b) (Supp. IV, 1965). (Emphasis supplied.) [Footnote 30] The Court of Appeals has held in Black, and we agree, that counsel must be afforded to the child in waiver proceedings. Counsel, therefore, have a "legitimate interest" in the protection of the child, and must be afforded access to these records.

@653
There is no irrebuttable presumption of accuracy attached to staff reports. If a decision on waiver is "critically important," it is equally of "critical importance" that the material submitted to the judge -- which is protected by the statute only against "indiscriminate" inspection -- be subjected, within reasonable limits having regard to the theory of the Juvenile Court Act, to examination, criticism and refutation. While the Juvenile Court judge may, of course, receive ex parte analyses and recommendations from his staff, he may not, for purposes of a decision on waiver, receive and rely upon secret information, whether emanating from his staff or otherwise.

@654-655
Ordinarily, we would reverse the Court of Appeals and direct the District Court to remand the case to the Juvenile Court for a new determination of waiver. If, on remand, the decision were against waiver, the indictment in the District Court would be dismissed. See Black v. United States, supra. However, petitioner has now passed the age of 21, and the Juvenile Court can no longer exercise jurisdiction over him. In view of the unavailability of a redetermination of the waiver question by the Juvenile Court, it is urged by petitioner that the conviction should be vacated and the indictment dismissed. In the circumstances of this case, and in light of the remedy which the Court of Appeals fashioned in Black, supra, we do not consider it appropriate to grant this drastic relief. [Footnote 33] Accordingly, we vacate the order of the Court of Appeals and the judgment of the District Court and remand the case to the District Court for a hearing de novo on waiver, consistent with this opinion. [Footnote 34] If that court finds that waiver was inappropriate, petitioner's conviction must be vacated. If, however, it finds that the waiver order was proper when originally made, the District Court may proceed, after consideration of such motions as counsel may make and such further proceedings, if any, as may be warranted, to enter an appropriate judgment. Cf. Black v. United States, supra.

******************************
Parham v. J.R. 442 U.S. 584 (1979)

Held: The District Court erred in holding unconstitutional the State's procedures for admitting a child for treatment to a state mental hospital, since, on the record in this case, Georgia's medical factfinding processes are consistent with constitutional guarantees. Pp. 442 U. S. 598-621.

(a) Testing challenged state procedures under a due process claim requires a balancing of (i) the private interest that will be affected by

Page 442 U. S. 585

the official action; (ii) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (iii) the state's interest, including the function involved and the fiscal and administrative burden that the additional or substitute procedural requirement would entail. Cf. Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335; Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 848-849. Pp. 442 U. S. 599-600.

(b) Notwithstanding a child's liberty interest in not being confined unnecessarily for medical treatment, and assuming that a person has a protectible interest in not being erroneously labeled as mentally ill, parents -- who have traditional interests in and responsibility for the upbringing of their child -- retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse. However, the child's rights and the nature of the commitment decision are such that parents do not always have absolute discretion to institutionalize a child; they retain plenary authority to seek such care for their children, subject to an independent medical judgment. Cf. Pierce v. Society of Sisters, 268 U. S. 510; Wisconsin v. Yoder, 406 U. S. 205; Prince v. Massachusetts, 321 U. S. 158; Meyer v. Nebraska, 262 U. S. 390. Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, distinguished. Pp. 442 U. S. 600-604.

(c) The State has significant interests in confining the use of costly mental health facilities to cases of genuine need, in not imposing unnecessary procedural obstacles that may discourage the mentally ill or their families from seeking needed psychiatric assistance, and in allocating priority to the diagnosis and treatment of patients as soon as they are admitted to a hospital, rather than to time-consuming pre-admission procedures. Pp. 442 U. S. 604-606.

(d) The risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a "neutral factfinder" to determine whether the statutory requirements for admission are satisfied, see Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 271; Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 489, and to probe the child's background. The decisionmaker must have the authority to refuse to admit any child who does not satisfy the medical standards for admission. The need for continuing commitment must be reviewed periodically. Pp. 442 U. S. 606-607.

(e) Due process does not require that the neutral factfinder be law-trained or a judicial or administrative officer; nor is it necessary that the admitting physician conduct a formal or quasi-formal adversary hearing or that the hearing be conducted by someone other than the admitting physician. While the medical decisionmaking process may not be error-free, nevertheless the independent medical decisionmaking process, which includes a thorough psychiatric investigation followed by additional periodic review of a child's condition, will identify children who should not be admitted; risks of error will not be significantly reduced by a more formal, judicial-type hearing. Pp. 442 U. S. 607-613.

(f) Georgia's practices, as described in the record, comport with minimum due process requirements. The state statute envisions a careful diagnostic medical inquiry to be conducted by the admitting physician at each regional hospital. Georgia's procedures are not "arbitrary" in the sense that a single physician or other professional has the "unbridled discretion" to commit a child to a regional hospital. While Georgia's general administrative and statutory scheme for the voluntary commitment of children is not unconstitutional, the District Court, on remand, may consider any individual claims that the initial admissions of particular children did not meet due process standards, and may also consider whether the various hospitals' procedures for periodic review of their patients' need for institutional care are sufficient to justify continuing a voluntary commitment. Pp. 442 U. S. 613-617.

(g) The differences between the situation where the child is a ward of the State of Georgia and the State requests his admission to a state mental hospital, and the situation where the child's natural parents request his admission, do not justify requiring different procedures at the time of the child's initial admission to the hospital. Pp. 442 U. S. 617-620.

@600-617
In applying these criteria, we must consider first the child's interest in not being committed. Normally, however, since this interest is inextricably linked with the parents' interest in and obligation for the welfare and health of the child, the private interest at stake is a combination of the child's and parents' concerns. [Footnote 11] Next, we must examine the State's interest in the procedures it has adopted for commitment and treatment of children. Finally, we must consider how well Georgia's procedures protect against arbitrariness in the decision to commit a child to a state mental hospital.

(a) It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment, and that the state's involvement in the commitment decision constitutes state action under the Fourteenth Amendment. See Addington v. Texas, 441 U. S. 418, 441 U. S. 425 (1979); In re Gault, 387 U. S. 1, 387 U. S. 27 (1967); Specht v. Patterson, 386 U. S. 605 (1967). We also recognize that commitment sometimes produces adverse social consequences for the child because of the reaction of some to the discovery that the child has received psychiatric care. Cf. Addington v. Texas, supra at 441 U. S. 425-426.

This reaction, however, need not be equated with the community response resulting from being labeled by the state as delinquent, criminal, or mentally ill and possibly dangerous. See ibid.; In re Gault, supra at 387 U. S. 23; Paul v. Davis, 424 U. S. 693, 424 U. S. 711-712 (1976). The state, through its voluntary commitment procedures, does not "label" the child; it provides a diagnosis and treatment that medical specialists conclude the child requires. In terms of public reaction, the child who exhibits abnormal behavior may be seriously injured by an erroneous decision not to commit. Appellees overlook a significant source of the public reaction to the mentally ill, for what is truly "stigmatizing" is the symptomatology of a mental or emotional illness. Addington v. Texas, supra at 441 U. S. 429. See also Schwartz, Myers, & Astrachan, Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 Archives of General Psychiatry 329 (1974). [Footnote 12] The pattern of untreated, abnormal behavior -- even if nondangerous -- arouses at least as much negative reaction as treatment that becomes public knowledge. A person needing, but not receiving, appropriate medical care may well face even greater social ostracism resulting from the observable symptoms of an untreated disorder. [Footnote 13]

However, we need not decide what effect these factors might have in a different case. For purposes of this decision, we assume that a child has a protectible interest not only in being free of unnecessary bodily restraints but also in not being labeled erroneously by some persons because of an improper decision by the state hospital superintendent.

(b) We next deal with the interests of the parents who have decided, on the basis of their observations and independent professional recommendations, that their child needs institutional care. Appellees argue that the constitutional rights of the child are of such magnitude, and the likelihood of parental abuse is so great, that the parents' traditional interests in and responsibility for the upbringing of their child must be subordinated at least to the extent of providing a formal adversary hearing prior to a voluntary commitment.

Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is "the mere creature of the State" and, on the contrary, asserted that parents generally "have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations." Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925). See also Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 213 (1972); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 400 (1923). Surely, this includes a "high duty" to recognize symptoms of illness and to seek and follow medical advice. The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries *447; 2 J. Kent, Commentaries on American Law *190.

As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents "may at times be acting against the interests of their children," as was stated in Bartley v. Kremens, 402 F.Supp. 1039, 1047-1048 (ED Pa.1975), vacated and remanded, 431 U. S. 119 (1977), creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests. See Rolfe & MacClintock 348-349. The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.

Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. See Wisconsin v. Yoder, supra at 406 U. S. 230; Prince v. Massachusetts, supra at 321 U. S. 166. Moreover, the Court recently declared unconstitutional a state statute that granted parents an absolute veto over a minor child's decision to have an abortion. Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976). Appellees urge that these precedents limiting the traditional rights of parents, if viewed in the context of the liberty interest of the child and the likelihood of parental abuse, require us to hold that the parents' decision to have a child admitted to a mental hospital must be subjected to an exacting constitutional scrutiny, including a formal, adversary, pre-admission hearing.

Appellees' argument, however, sweeps too broadly. Simply because the decision of a parent is not agreeable to a child, or because it involves risks, does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. Here, there is no finding by the District Court of even a single instance of bad faith by any parent of any member of appellees' class. We cannot assume that the result in Meyer v. Nebraska, supra, and Pierce v. Society of Sisters, supra, would have been different if the children there had announced a preference to learn only English or a preference to go to a public, rather than a church, school. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents' authority to decide what is best for the child. See generally Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L J. 645, 664-668 (1977); Bennett, Allocation of Child Medical Care Decisionmaking Authority: A Suggested Interest Analysis, 62 Va.L.Rev. 285, 308 (1976). Neither state officials nor federal courts are equipped to review such parental decisions.

Appellees place particular reliance on Planned Parenthood, arguing that its holding indicates how little deference to parents is appropriate when the child is exercising a constitutional right. The basic situation in that case, however, was very different; Planned Parenthood involved an absolute parental veto over the child's ability to obtain an abortion. Parents in Georgia in no sense have an absolute right to commit their children to state mental hospitals; the statute requires the superintendent of each regional hospital to exercise independent judgment as to the child's need for confinement. See supra at 442 U. S. 591.

In defining the respective rights and prerogatives of the child and parent in the voluntary commitment setting, we conclude that our precedents permit the parents to retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse, and that the traditional presumption that the parents act in the best interests of their child should apply. We also conclude, however, that the child's rights and the nature of the commitment decision are such that parents cannot always have absolute and unreviewable discretion to decide whether to have a child institutionalized. They, of course, retain plenary authority to seek such care for their children, subject to a physician's independent examination and medical judgment.

(c) The State obviously has a significant interest in confining the use of its costly mental health facilities to cases of genuine need. The Georgia program seeks first to determine whether the patient seeking admission has an illness that calls for inpatient treatment. To accomplish this purpose, the State has charged the superintendents of each regional hospital with the responsibility for determining, before authorizing an admission, whether a prospective patient is mentally ill and whether the patient will likely benefit from hospital care. In addition, the State has imposed a continuing duty on hospital superintendents to release any patient who has recovered to the point where hospitalization is no longer needed.

The State in performing its voluntarily assumed mission also has a significant interest in not imposing unnecessary procedural obstacles that may discourage the mentally ill or their families from seeking needed psychiatric assistance. The parens patriae interest in helping parents care for the mental health of their children cannot be fulfilled if the parents are unwilling to take advantage of the opportunities because the admission process is too onerous, too embarrassing, or too contentious. It is surely not idle to speculate as to how many parents who believe they are acting in good faith would forgo state-provided hospital care if such care is contingent on participation in an adversary proceeding designed to probe their motives and other private family matters in seeking the voluntary admission.

The State also has a genuine interest in allocating priority to the diagnosis and treatment of patients as soon as they are admitted to a hospital, rather than to time-consuming procedural minuets before the admission. [Footnote 14] One factor that must be considered is the utilization of the time of psychiatrists, psychologists, and other behavioral specialists in preparing for and participating in hearings, rather than performing the task for which their special training has fitted them. Behavioral experts in courtrooms and hearings are of little help to patients.

The amici brief of the American Psychiatric Association et al. points out at page 20 that the average staff psychiatrist in a hospital presently is able to devote only 475 of his time to direct patient care. One consequence of increasing the procedures the state must provide prior to a child's voluntary admission will be that mental health professionals will be diverted even more from the treatment of patients in order to travel to and participate in -- and wait for -- what could be hundreds -- or even thousands -- of hearings each year. Obviously the cost of these procedures would come from the public moneys the legislature intended for mental health care. See Slovenko 34-35.

(d) We now turn to consideration of what process protects adequately the child's constitutional rights by reducing risks of error without unduly trenching on traditional parental authority and without undercutting "efforts to further the legitimate interests of both the state and the patient that are served by" voluntary commitments. Addington v. Texas, 441 U.S. at 441 U. S. 430. See also Mathews v. Eldridge, 424 U.S. at 424 U. S. 335. We conclude that the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a "neutral factfinder" to determine whether the statutory requirements for admission are satisfied. See Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 271 (1970); Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 489 (1972). That inquiry must carefully probe the child's background using all available sources, including, but not limited to, parents, schools, and other social agencies. Of course, the review must also include an interview with the child. It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, it is necessary that the child's continuing need for commitment be reviewed periodically by a similarly independent procedure. [Footnote 15]

We are satisfied that such procedures will protect the child from an erroneous admission decision in a way that neither unduly burdens the states nor inhibits parental decisions to seek state help.

Due process has never been thought to require that the neutral and detached trier of fact be law trained or a judicial or administrative officer. See Goldberg v. Kelly, supra at 397 U. S. 271; Morrissey v. Brewer, supra at 408 U. S. 489. Surely, this is the case as to medical decisions, for "neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments." In re Roger S., 19 Cal.3d 921,942, 569 P.2d 1286, 1299 (1977) (Clark, J., dissenting). Thus, a staff physician will suffice, so long as he or she is free to evaluate independently the child's mental and emotional condition and need for treatment.

It is not necessary that the deciding physician conduct a formal or quasi-formal hearing. A state is free to require such a hearing, but due process is not violated by use of informal, traditional medical investigative techniques. Since well established medical procedures already exist, we do not undertake to outline with specificity precisely what this investigation must involve. The mode and procedure of medical diagnostic procedures is not the business of judges. What is best for a child is an individual medical decision that must be left to the judgment of physicians in each case. We do no more than emphasize that the decision should represent an independent judgment of what the child requires and that all sources of information that are traditionally relied on by physicians and behavioral specialists should be consulted.

What process is constitutionally due cannot be divorced from the nature of the ultimate decision that is being made. Not every determination by state officers can be made most effectively by use of "the procedural tools of judicial or administrative decisionmaking." Board of Curators of Univ. of Missouri v. Horowitz, 435 U. S. 78, 435 U. S. 90 (1978). See also Greenholtz v. Nebraska Penal Inmates, ante at 442 U. S. 13-14; Cafeteria Restaurant Workers v. McElroy, 367 U. S. 886, 367 U. S. 895 (1961). [Footnote 16] Here, the questions are essentially medical in character: whether the child is mentally or emotionally ill, and whether he can benefit from the treatment that is provided by the state. While facts are plainly necessary for a proper resolution of those questions, they are only a first step in the process. In an opinion for a unanimous Court, we recently stated in Addington v. Texas, 441 U.S. at 441 U. S. 429, that the determination of whether a person is mentally ill "turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists."

Although we acknowledge the fallibility of medical and psychiatric diagnosis, see O'Connor v. Donaldson, 422 U. S. 563, 422 U. S. 584 (1975) (concurring opinion), we do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative hearing officer after a judicial-type hearing. Even after a hearing, the nonspecialist decisionmaker must make a medical-psychiatric decision. Common human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real. See Albers, Pasewark, & Meyer, Involuntary Hospitalization and Psychiatric Testimony: The Fallibility of the Doctrine of Immaculate Perception, 6 Cap.U.L.Rev. 11, 15 (1976). [Footnote 17] Another problem with requiring a formalized, factfinding hearing lies in the danger it poses for significant intrusion into the parent-child relationship. Pitting the parents and child as adversaries often will be at odds with the presumption that parents act in the best interests of their child. It is one thing to require a neutral physician to make a careful review of the parents' decision in order to make sure it is proper from a medical standpoint; it is a wholly different matter to employ an adversary contest to ascertain whether the parents' motivation is consistent with the child's interests.

Moreover, it is appropriate to inquire into how such a hearing would contribute to the successful long-range treatment of the patient. Surely there is a risk that it would exacerbate whatever tensions already exist between the child and the parents. Since the parents can and usually do play a significant role in the treatment while the child is hospitalized, and even more so after release, there is a serious risk that an adversary confrontation will adversely affect the ability of the parents to assist the child while in the hospital. Moreover, it will make his subsequent return home more difficult. These unfortunate results are especially critical with an emotionally disturbed child; they seem likely to occur in the context of an adversary hearing in which the parents testify. A confrontation over such intimate family relationships would distress the normal adult parents, and the impact on a disturbed child almost certainly would be significantly greater. [Footnote 18]  It has been.suggested that a hearing conducted by someone other than the admitting physician is necessary in order to detect instances where parents are "guilty of railroading their children into asylums" or are using "voluntary commitment procedures in order to sanction behavior of which they disapprov[e]." Ellis, Volunteering Children: Parental Commitment of Minors to Mental Institutions, 62 Calif.L.Rev. 840, 850-851 (1974). See also J.L. v. Parham, 412 F.Supp. at 133; Brief for Appellees 38. Curiously, it seems to be taken for granted that parents who seek to "dump" their children on the state will inevitably be able to conceal their motives, and thus deceive the admitting psychiatrists and the other mental health professionals who make and review the admission decision. It is elementary that one early diagnostic inquiry into the cause of an emotional disturbance of a child is an examination into the environment of the child. It is unlikely, if not inconceivable, that a decision to abandon an emotionally normal, healthy child and thrust him into an institution will be a discrete act leaving no trail of circumstances. Evidence of such conflicts will emerge either in the interviews or from secondary sources. It is unrealistic to believe that trained psychiatrists, skilled in eliciting responses, sorting medically relevant facts, and sensing motivational nuances will often be deceived about the family situation surrounding a child's emotional disturbance. [Footnote 19] Surely a lay, or even law-trained, factfinder would be no more skilled in this process than the professional.

By expressing some confidence in the medical decisionmaking process, we are by no means suggesting it is error-free. On occasion, parents may initially mislead an admitting physician, or a physician may erroneously diagnose the child as needing institutional care either because of negligence or an overabundance of caution. That there may be risks of error in the process affords no rational predicate for holding unconstitutional an entire statutory an administrative scheme that is generally followed in more than 30 states. [Footnote 20]

"[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions."

Mathews v. Eldridge, 424 U.S. at 424 U. S. 344. In general, we are satisfied that an independent medical decisionmaking process, which includes the thorough psychiatric investigation described earlier, followed by additional periodic review of a child's condition, will protect children who should not be admitted; we do not believe the risks of error in that process would be significantly reduced by a more formal, judicial-type hearing. The issue remains whether the Georgia practices, as described in the record before us, comport with these minimum due process requirements.

(e) Georgia's statute envisions a careful diagnostic medical inquiry to be conducted by the admitting physician at each regional hospital. The amicus brief for the United States explains, at pages 7-8:

"[I]n every instance, the decision whether or not to accept the child for treatment is made by a physician employed by the State. . . . "

"That decision is based on interviews and recommendations by hospital or community health center staff. The staff interviews the child and the parent or guardian who brings the child to the facility . . . , [and] attempts are made to communicate with other possible sources of information about the child. . . ."

Focusing primarily on what it saw as the absence of any formal mechanism for review of the physician's initial decision, the District Court unaccountably saw the medical decision as an exercise of "unbridled discretion." 412 F.Supp. at 136. But extravagant characterizations are no substitute for careful analysis, and we must examine the Georgia process in its setting to determine if, indeed, any one person exercises such discretion.

In the typical case, the parents of a child initially conclude from the child's behavior that there is some emotional problem -- in short, that "something is wrong." They may respond to the problem in various ways, but generally the first contact with the State occurs when they bring the child to be examined by a psychologist or psychiatrist at a community mental health clinic.

Most often, the examination is followed by outpatient treatment at the community clinic. In addition, the child's parents are encouraged, and sometimes required, to participate in a family therapy program to obtain a better insight into the problem. In most instances, this is all the care a child requires. However, if, after a period of outpatient care, the child's abnormal emotional condition persists, he may be referred by the local clinic staff to an affiliated regional mental hospital.

At the regional hospital, an admissions team composed of a psychiatrist and at least one other mental health professional examines and interviews the child -- privately in most instances. This team then examines the medical records provided by the clinic staff and interviews the parents. Based on this information, and any additional background that can be obtained, the admissions team makes a diagnosis and determines whether the child will likely benefit from institutionalized care. If the team finds either condition not met, admission is refused.

If the team admits a child as suited for hospitalization, the child's condition and continuing need for hospital care are reviewed periodically by at least one independent medical review group. For the most part, the reviews are as frequent as weekly, but none is less often than once every two months. Moreover, as we noted earlier, the superintendent of each hospital is charged with an affirmative statutory duty to discharge any child who is no longer mentally ill or in need of therapy. [Footnote 21]

As with most medical procedures, Georgia's are not totally free from risk of error in the sense that they give total or absolute assurance that every child admitted to a hospital has a mental illness optimally suitable for institutionalized treatment. But it bears repeating that "procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions." Mathews v. Eldridge, supra, at 424 U. S. 344.

Georgia's procedures are not "arbitrary" in the sense that a single physician or other professional has the "unbridled discretion" the District Court saw to commit a child to a regional hospital. To so find on this record would require us to assume that the physicians, psychologists, and mental health professionals who participate in the admission decision, and who review each other's conclusions as to the continuing validity of the initial decision, are either oblivious or indifferent to the child's welfare -- or that they are incompetent. We note, however, the District Court found to the contrary; it was"impressed by the conscientious, dedicated, state-employed psychiatrists who, with the help of equally conscientious, dedicated state-employed psychologists and social workers, faithfully care for the plaintiff children. . . ."412 F.Supp. at 138.

This finding of the District Court also effectively rebuts the suggestion made in some of the briefs amici that hospital administrators may not actually be "neutral and detached" because of institutional pressure to admit a child who has no need for hospital care. That such a practice may take place in some institutions in some places affords no basis for a finding as to Georgia's program; the evidence in the record provides no support whatever for that charge against the staffs at any of the State's eight regional hospitals. Such cases, if they are found, can be dealt with individually; [Footnote 22] they do not lend themselves to class action remedies.

We are satisfied that the voluminous record as a whole supports the conclusion that the admissions staffs of the hospitals have acted in a neutral and detached fashion in making medical judgments in the best interests of the children. The State, through its mental health programs, provides the authority for trained professionals to assist parents in examining, diagnosing, and treating emotionally disturbed children. Through its hiring practices, it provides well staffed and well equipped hospitals and -- as the District Court found -- conscientious public employees to implement the State's beneficent purposes.

Although our review of the record in this case satisfies us that Georgia's general administrative and statutory scheme for the voluntary commitment of children is not per se unconstitutional, we cannot decide on this record whether every child in appellees' class received an adequate, independent diagnosis of his emotional condition and need for confinement under the standards announced earlier in this opinion. On remand, the District Court is free to, and should, consider any individual claims that initial admissions did not meet the standards we have described in this opinion.

In addition, we note that appellees' original complaint alleged that the State had failed to provide adequate periodic review of their need for institutional care, and claimed that this was an additional due process violation. Since the District Court held that the appellees' original confinement was unconstitutional, it had no reason to consider this separate claim. Similarly, we have no basis for determining whether the review procedures of the various hospitals are adequate to provide the process called for or what process might be required if a child contests his confinement by requesting a release. These matters require factual findings not present in the District Court's opinion. We have held that the periodic reviews described in the record reduce the risk of error in the initial admission, and thus they are necessary. Whether they are sufficient to justify continuing a voluntary commitment is an issue for the District Court on remand. The District Court is free to require additional evidence on this issue.

@617-620
(a) Our discussion in 442 U. S. Some members of appellees' class, including J.R., were wards of the State of Georgia at the time of their admission. Obviously their situation differs from those members of the class who have natural parents. While the determination of what process is due varies somewhat when the state, rather than a natural parent, makes the request for commitment, we conclude that the differences in the two situations do not justify requiring different procedures at the time of the child's initial admission to the hospital.

For a ward of the state, there may well be no adult who knows him thoroughly and who cares for him deeply. Unlike with natural parents, where there is a presumed natural affection to guide their action, 1 W. Blackstone, Commentaries *447; 2 J. Kent, Commentaries on American Law * 190, the presumption that the state will protect a child's general welfare stems from a specific state statute. Ga.Code § 24A-101 (1978). Contrary to the suggestion of the dissent, however, we cannot assume that, when the State of Georgia has custody of a child, it acts so differently from a natural parent in seeking medical assistance for the child. No one has questioned the validity of the statutory presumption that the State acts in the child's best interest. Nor could such a challenge be mounted on the record before us. There is no evidence that the State, acting as guardian, attempted to admit any child for reasons unrelated to the child's need for treatment. Indeed, neither the District Court nor the appellees have suggested that wards of the State should receive any constitutional treatment different from children with natural parents.

Once we accept that the State's application for a child's admission to a hospital is made in good faith, then the question is whether the medical decisionmaking approach of the admitting physician is adequate to satisfy due process. We have already recognized that an independent medical judgment made from the perspective of the best interests of the child after a careful investigation is an acceptable means of justifying a voluntary commitment. We do not believe that the soundness of this decisionmaking is any the less reasonable in this setting.

Indeed, if anything, the decision with regard to wards of the State may well be even more reasonable in light of the extensive written records that are compiled about each child while in the State's custody. In J R.'s case, the admitting physician had a complete social and medical history of the child before even beginning the diagnosis. After carefully interviewing him and reviewing his extensive files, three physicians independently concluded that institutional care was in his best interests. See supra at 442 U. S. 590.

Since the state agency having custody and control of the child in loco parentis has a duty to consider the best interests of the child with respect to a decision on commitment to a mental hospital, the State may constitutionally allow that custodial agency to speak for the child, subject, of course, to the restrictions governing natural parents. On this record, we cannot declare unconstitutional Georgia's admission procedures for wards of the State.

(b) It is possible that the procedures required in reviewing a ward's need for continuing care should be different from those used to review the need of a child with natural parents. As we have suggested earlier, the issue of what process is due to justify continuing a voluntary commitment must be considered by the District Court on remand. In making that inquiry, the District Court might well consider whether wards of the State should be treated with respect to continuing therapy differently from children with natural parents.

The absence of an adult who cares deeply for a child has little effect on the reliability of the initial admission decision, but it may have some effect on how long a child will remain in the hospital. We noted in Addington v. Texas, 441 U.S. at 441 U. S. 428-49, that "the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected." For a child without natural parents, we must acknowledge the risk of being "lost in the shuffle." Moreover, there is at least some indication that J.R.'s commitment was prolonged because the Department of Family and Children Services had difficulty finding a foster home for him. Whether wards of the State generally have received less protection than children with natural parents, and, if so, what should be done about it, however, are matters that must be decided in the first instance by the District Court on remand, [Footnote 23] if the court concludes the issue is still alive.

@620
It is important that we remember the purpose of Georgia's comprehensive mental health program. It seeks, substantively and at great cost, to provide care for those who cannot afford to obtain private treatment, and procedurally to screen carefully all applicants to assure that institutional care is suited to the particular patient. The State resists the complex of procedures ordered by the District Court because, in its view, they are unnecessary to protect the child's rights, they divert public resources from the central objective of administering health care, they risk aggravating the tensions inherent in the family situation, and they erect barriers that may discourage parents from seeking medical aid for a disturbed child.

On this record, we are satisfied that Georgia's medical factfinding processes are reasonable and consistent with constitutional guarantees.
***************************************************
Addington v. Texas 441 U.S. 418 (1979)


Held: A "clear and convincing" standard of proof is required by the Fourteenth Amendment in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital. Pp. 441 U. S. 425-433.

(a) The individual's liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity, compared with the state's interests in providing care to its citizens who are unable, because of emotional disorders, to care for themselves and in protecting the community from the dangerous tendencies of some who are mentally ill, that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence. Pp. 441 U. S. 425-427.

(b) Due process does not require states to use the "beyond a reasonable doubt" standard of proof applicable in criminal prosecutions and delinquency proceedings. In re Winship, 397 U. S. 358, distinguished. The reasonable doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet, and thereby erect an unreasonable barrier to needed medical treatment. The state should not be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and the patient that are served by civil commitments. Pp. 441 U. S. 427 431.

(c) To meet due process demands in commitment,proceedings, the standard of proof has to inform the factfinder that the proof must be greater than the "preponderance of the evidence" standard applicable to other categories of civil cases. However, use of the term "unequivocal" in conjunction with the terms "clear and convincing" in jury instructions (as included in the instructions given by the Texas state court in this case) is not constitutionally required, although states are free to use that standard. Pp. 441 U. S. 431-433.

@425-426
This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. See, e.g., Jackson v. Indiana, 406 U. S. 715 (1972); Humphrey v. Cady, 405 U. S. 504 (1972); In re Gault, 387 U. S. 1 (1967); Specht v. Patterson, 386 U. S. 605 (1967). Moreover, it is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual. Whether we label this phenomenon "stigma" or choose to call it something else is less important than that we recognize that it can occur, and that it can have a very significant impact on the individual.

@427
At one time or another, every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is, in fact, within a range of conduct that is generally acceptable. Obviously, such behavior is no basis for compelled treatment, and surely none for confinement. However, there is the possible risk that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision, and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.

The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state. We conclude that the individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.

@428-429
In addition, the "beyond a reasonable doubt" standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the "moral force of the criminal law," In re Winship, 397 U.S. at 397 U. S. 364, and we should hesitate to apply it too broadly or casually in noncriminal cases. Cf. ibid.

The heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go free. Patterson v. New York, 432 U. S. 197, 432 U. S. 208 (1977). The full force of that idea does not apply to a civil commitment. It may be true that an erroneous commitment is sometimes as undesirable as all erroneous conviction, 5 J. Wigmore, Evidence § 1400 (Chadbourn rev.1974). However, even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observation of the patient's condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected. Moreover, it is not true that the release of a genuinely mentally ill person is no worse for the individual than the failure to convict the guilty. One who is suffering from a debilitating mental illness and in need of treatment is neither wholly at liberty nor free of stigma. See Chodoff, The Case for Involuntary Hospitalization of the Mentally Ill, 133 Am.J.Psychiatry 496, 498 (1976); Schwartz, Myers, & Astrachan, Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 Arch.Gen.Psychiatry 329, 334 (1974). It cannot be said, therefore, that it is much better for a mentally ill person to "go free" than for a mentally normal person to be committed.


@429
Finally, the initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution. In the latter cases, the basic issue is a straightforward factual question -- did the accused commit the act alleged? There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous. [...citations ommitted...]

The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical "impressions" drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient. Within the medical discipline, the traditional standard for "factfinding" is a "reasonable medical certainty." If a trained psychiatrist has difficulty with the categorical "beyond a reasonable doubt" standard, the untrained lay juror -- or indeed even a trained judge -- who is required to rely upon expert opinion could be forced by the criminal law standard of proof to reject commitment for many patients desperately in need of institutionalized psychiatric care. See ibid. Such "freedom" for a mentally ill person would be purchased at a high price.

That practical considerations may limit a constitutionally based burden of proof is demonstrated by the reasonable doubt standard, which is a compromise between what is possible to prove and what protects the rights of the individual. If the state was required to guarantee error-free convictions, it would be required to prove guilt beyond all doubt. However,

"[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person."

Patterson v. New York, supra at 386 U. S. 208. Nor should the state be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and the patient that are served by civil commitments.

@530-531
That some states have chosen -- either legislatively or judicially-- to adopt the criminal law standard [Footnote 5] gives no assurance that the more stringent standard of proof is needed or is even adaptable to the needs of all states. The essence of federalism is that states must be free to develop a variety of solutions to problems, and not be forced into a common, uniform mold. As the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum.
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Secretary of Pub. Welfare v. Institutionalized Juveniles, 442 U.S. 640 (1979)

Held:

1. The risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a "neutral factfinder" to determine whether the statutory requirements for admission are satisfied. That inquiry must carefully probe the child's background and must also include an interview with the child. It is also necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, the child's continuing need for commitment must be reviewed periodically. Parham v. J.R., ante, p. 442 U. S. 584, controlling. P. 442 U. S. 646.

2. Pennsylvania's procedures comply with these due process requirements. No child is admitted without at least one and often more psychiatric examinations by an independent team of mental health professionals whose sole concern is whether the child needs and can benefit from institutional  care. The treatment team interviews the child and parents and compiles a full background history. If the treatment team concludes that institutional care is not in the child's best interest, it must refuse the child's admission; every child's condition is reviewed at least every 30 days. Pp. 442 U. S. 646-650.

@646
(a) Much of what we said in Parham v. J.R. applies with equal force to this case. The liberty rights and interests of the appellee children, the prerogatives, responsibilities, and interests of the parents, and the obligations and interests of the State are the same. Our holding as to what process is due in Parham controls here, particularly:

"We conclude that the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a 'neutral factfinder' to determine whether the statutory requirements for admission are satisfied. . . .
That inquiry must carefully probe the child's background using all available sources, including, but not limited to, parents, schools, and other social agencies. Of course, the review must also include an interview with the child. It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, it is necessary that the child's continuing need for commitment be reviewed periodically by a similarly independent procedure."

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[Janet] Reno v. Flores  507 U.S. 292 (1993)

Held:

1. Because this is a facial challenge to the regulation, respondents must establish that no set of circumstances exists under which the regulation would be valid. United States v. Salerno, 481 U. S. 739, 745. Pp.300-301.

2. Regulation 242.24, on its face, does not violate the Due Process Clause. Pp.301-309.

(a) The regulation does not deprive respondents of "substantive due process." The substantive right asserted by respondents is properly described as the right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a private custodian rather than of a government-operated or government-selected child-care institution. That novel claim cannot be considered "'so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" United States v. Salerno, supra, at 751. It is therefore sufficient that the regulation is rationally connected to the government's interest in preserving and promoting the welfare of detained juveniles, and is not punitive since it is not excessive in relation to that valid purpose. Nor does each unaccompanied juvenile have a substantive right to an individualized hearing on whether private placement would be in his "best interests." Governmental custody must meet minimum standards, as the consent decree indicates it does here, but the decision to exceed those standards is a policy judgment, not a constitutional imperative. Any remaining constitutional doubts are eliminated by the fact that almost all respondents are aliens suspected of being deportable, a class that can be detained, and over which Congress has granted the Attorney General broad discretion regarding detention. 8 U. S. C. § 1252(a)(1). Pp. 301-306.

(b) Existing INS procedures provide alien juveniles with "procedural due process." Respondents' demand for an individualized custody hearing for each detained alien juvenile is merely the "substantive due process" argument recast in procedural terms. Nor are the procedures faulty because they do not require automatic review by an immigration judge of initial deportability and custody determinations. In the context of this facial challenge, providing the right to review suffices. It has not been shown that all of the juveniles detained are too young or ignorant to exercise that right; any waiver of a hearing is revocable; and there is no evidence of excessive delay in holding hearings when requested. Pp. 306-309.

3. The regulation does not exceed the scope of the Attorney General's discretion to continue custody over arrested aliens under 8 U. S. C. § 1252(a)(1). It rationally pursues a purpose that is lawful for the INS to seek, striking a balance between the INS's concern that the juveniles' welfare will not permit their release to just any adult and the INS's assessment that it has neither the expertise nor the resources to conduct home studies for individualized placements. The list of approved custodians reflects the traditional view that parents and close relatives are competent custodians, and otherwise defers to the States' proficiency in the field of child custody. The regulation is not motivated by administrative convenience; its use of presumptions and generic rules is reasonable; and the period of detention that may result is limited by the pending deportation hearing, which must be concluded with reasonable dispatch to avoid habeas corpus. Pp. 309-315.

@298
Juveniles placed in these facilities are deemed to be in INS detention "because of issues of payment and authorization of medical care." 53 Fed. Reg., at 17449. "Legal custody" rather than "detention" more accurately describes the reality of the arrangement, however, since these are not correctional institutions but facilities that meet "state licensing requirements for the provision of shelter care, foster care, group care, and related services to dependent children," Juvenile Care Agreement 176a, and are operated "in an open type of setting without a need for extraordinary security measures," id., at 173a. The facilities must provide, in accordance with "applicable state child welfare statutes and generally accepted child welfare standards, practices, principles and procedures," id., at 157a, an extensive list of services, including physical care and maintenance, individual and group counseling, education, recreation and leisure-time activities, family reunification services, and access to religious services, visitors, and legal assistance, id., at 159a, 178a-185a.

@301-302
Respondents' "substantive due process" claim relies upon our line of cases which interprets the Fifth and Fourteenth Amendments' guarantee of "due process of law" to include a substantive component, which forbids the government to infringe certain "fundamental" liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. See, e. g., Collins v. Harker Heights, 503 U. S. 115, 125 (1992); Salerno, supra, at 746; Bowers v. Hardwick, 478 U. S. 186, 191 (1986). "Substantive due process" analysis must begin with a careful description of the asserted right, for "[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field." Collins, supra, at 125; see Bowers v. Hardwick, supra, at 194-195. The "freedom from physical restraint" invoked by respondents is not at issue in this case. Surely not in the sense of shackles, chains, or barred cells, given the Juvenile Care Agreement. Nor even in the sense of a right to come and go at will, since, as we have said elsewhere, "juveniles, unlike adults, are always in some form of custody," Schall, 467 U. S., at 265, and where the custody of the parent or legal guardian fails, the government may (indeed, we have said must) either exercise custody itself or appoint someone else to do so. Ibid. Nor is the right asserted the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives:

@302-306
The challenged regulation requires such release when it is sought. Rather, the right at issue is the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or governmentselected child-care institution.

If there exists a fundamental right to be released into what respondents inaccurately call a "non-custodial setting," Brief for Respondents 18, we see no reason why it would apply only in the context of government custody incidentally acquired in the course of law enforcement. It would presumably apply to state custody over orphans and abandoned children as well, giving federal law and federal courts a major new role in the management of state orphanages and other child-care institutions. Cf. Ankenbrandt v. Richards, 504 U. S. 689, 703-704 (1992). We are unaware, however, that any court-aside from the courts below-has ever held that a child has a constitutional right not to be placed in a decent and humane custodial institution if there is available a responsible person unwilling to become the child's legal guardian but willing to undertake temporary legal custody. The mere novelty of such a claim is reason enough to doubt that "substantive due process" sustains it; the alleged right certainly cannot be considered "'so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " Salerno, supra, at 751 (quoting Snyder v. Massachusetts, 291 U. S. 97, 105 (1934)). Where a juvenile has no available parent, close relative, or legal guardian, where the government does not intend to punish the child, and where the conditions of governmental custody are decent and humane, such custody surely does not violate the Constitution. It is rationally connected to a governmental interest in "preserving and promoting the welfare of the child," Santosky v. Kramer, 455 U. S. 745, 766 (1982), and is not punitive since it is not excessive in relation to that valid purpose. See Schall, supra, at 269.

Although respondents generally argue for the categorical right of private placement discussed above, at some points they assert a somewhat more limited constitutional right: the right to an individualized hearing on whether private placement would be in the child's "best interests" -followed by private placement if the answer is in the affirmative. It seems to us, however, that if institutional custody (despite the availability of responsible private custodians) is not unconstitutional in itself, it does not become so simply because it is shown to be less desirable than some other arrangement for the particular child. "The best interests of the child," a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child's welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. See Quilloin v. Walcott, 434 U. S. 246, 255 (1978). Similarly, "the best interests of the child" is not the legal standard that governs parents' or guardians' exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. See, e. g., R. C. N. v. State, 141 Ga. App. 490, 491, 233 S. E. 2d 866, 867 (1977).

"The best interests of the child" is likewise not an absolute and exclusive constitutional criterion for the government's exercise of the custodial responsibilities that it undertakes, which must be reconciled with many other responsibilities. Thus, child-care institutions operated by the State in the exercise of its parens patriae authority, see Schall, supra, at 265, are not constitutionally required to be funded at such a level as to provide the best schooling or the best health care available; nor does the Constitution require them to substitute, wherever possible, private nonadoptive custody for institutional care. And the same principle applies, we think, to the governmental responsibility at issue here, that of retaining or transferring custody over a child who has come within the Federal Government's control, when the parents or guardians of that child are nonexistent or unavailable. Minimum standards must be met, and the child's fundamental rights must not be impaired; but the decision to go beyond those requirements-to give one or another of the child's additional interests priority over other concerns that compete for public funds and administrative attention-is a policy judgment rather than a constitutional imperative.

Respondents' "best interests" argument is, in essence, a demand that the INS program be narrowly tailored to minimize the denial of release into private custody. But narrow tailoring is required only when fundamental rights are involved. The impairment of a lesser interest (here, the alleged interest in being released into the custody of strangers) demands no more than a "reasonable fit" between governmental purpose (here, protecting the welfare of the juveniles who have come into the Government's custody) and the means chosen to advance that purpose. This leaves ample room for an agency to decide, as the INS has, that administrative factors such as lack of child-placement expertise favor using one means rather than another. There is, in short, no constitutional need for a hearing to determine whether private placement would be better, so long as institutional custody is (as we readily find it to be, assuming compliance with the requirements of the consent decree) good enough.

If we harbored any doubts as to the constitutionality of institutional custody over unaccompanied juveniles, they would surely be eliminated as to those juveniles (concededly the overwhelming majority of all involved here) who are aliens. "For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government." Mathews v. Diaz, 426 U. S. 67, 81 (1976). "'[O]ver no conceivable subject is the legislative power of Congress more complete.'" Fiallo v. Bell, 430 U. S. 787, 792 (1977) (quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 339 (1909)). Thus, "in the exercise of its broad power over immigration and naturalization, 'Congress regularly makes rules that would be unacceptable if applied to citizens.'" 430 U. S., at 792 (quoting Mathews v. Diaz, supra, at 79-80). Respondents do not dispute that Congress has the authority to detain aliens suspected of entering the country illegally pending their deportation hearings, see Carlson v. Landon, 342 U. S. 524, 538 (1952); Wong Wing v. United States, 163 U. S., at 235. And in enacting the precursor to 8 U. S. C. § 1252(a), Congress eliminated any presumption of release pending deportation, committing that determination to the discretion of the Attorney General. See Carlson v. Landon, supra, at 538-540. Of course, the INS regulation must still meet the (unexacting) standard of rationally advancing some legitimate governmental purpose-which it does, as we shall discuss later in connection with the statutory challenge.

Respondents also argue, in a footnote, that the INS release policy violates the "equal protection guarantee" of the Fifth Amendment because of the disparate treatment evident in (1) releasing alien juveniles with close relatives or legal guardians but detaining those without, and (2) releasing to unrelated adults juveniles detained pending federal delinquency proceedings, see 18 U. S. C. § 5034, but detaining unaccompanied alien juveniles pending deportation proceedings. The tradition of reposing custody in close relatives and legal guardians is in our view sufficient to support the former distinction; and the difference between citizens and aliens is adequate to support the latter.

@308-309
The District Court and the en banc Court of Appeals concluded that the INS procedures are faulty because they do not provide for automatic review by an immigration judge of the initial deportability and custody determinations. See 942 F. 2d, at 1364. We disagree. At least insofar as this facial challenge is concerned, due process is satisfied by giving the detained alien juveniles the right to a hearing before an immigration judge. It has not been shown that all of them are too young or too ignorant to exercise that right when the form asking them to assert or waive it is presented. Most are 16 or 17 years old and will have been in telephone contact with a responsible adult outside the INS-sometimes a legal services attorney. The waiver, moreover, is revocable: The alien may request a judicial redetermination at any time later in the deportation process. See 8 CFR § 242.2(d) (1992); Matter of Uluocha, Interim Dec. 3124 (BIA 1989). We have held that juveniles are capable of "knowingly and intelligently" waiving their right against self-incrimination in criminal cases. See Fare v. Michael c., 442 U. S. 707, 724-727 (1979); see also United States v. Saucedo-Velasquez, 843 F.2d 832, 835 (CA5 1988) (applying Fare to alien juvenile). The alleged right to redetermination of prehearing custody status in deportation cases is surely no more significant.

Respondents point out that the regulations do not set a time period within which the immigration-judge hearing, if requested, must be held. But we will not assume, on this facial challenge, that an excessive delay will invariably ensue-particularly since there is no evidence of such delay, even in isolated instances. Cf. Matter of Chirinos, 16 1. & N. Dec. 276 (BIA 1977).

@311
The dissent maintains that, in making custody decisions, the INS cannot rely on "[c]ategorical distinctions between cousins and uncles, or between relatives and godparents or other responsible persons," because "[d]ue process demands more, far more." Post, at 343. Acceptance of such a proposition would revolutionize much of our family law. Categorical distinctions between relatives and nonrelatives, and between relatives of varying degree of affinity, have always played a predominant role in determining child custody and in innumerable other aspects of domestic relations. The dissent asserts, however, that it would prohibit such distinctions only for the purpose of "prefer[ring] detention [by which it means institutional detention] to release," and accuses us of "mischaracteriz[ing] the issue" in suggesting otherwise. Post, at 343, n. 29. It seems to us that the dissent mischaracterizes the issue. The INS uses the categorical distinction between relatives and nonrelatives not to deny release, but to determine which potential custodians will be accepted without the safeguard of state-decreed guardianship.

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ADOPTIVE COUPLE v. BABY GIRL, A MINOR CHILD 570 US ___ (2013)  (child was 3/256th Cherokee, but elidgible to live on the reservation)

 Held:
1. Assuming for the sake of argument that Biological Father is a “parent” under the ICWA, neither §1912(f) nor §1912(d) bars the termination of his parental rights. Pp. 6–14. (a) Section 1912(f) conditions the involuntary termination of parental rights on a heightened showing regarding the merits of the parent’s “continued custody of the child.” The adjective “continued” plainly refers to a pre-existing state under ordinary dictionary definitions. The phrase “continued custody” thus refers to custody that a parent already has (or at least had at some point in the past). As a result, §1912(f) does not apply where the Indian parent never had custody of the Indian child. This reading comports with the statutory text, which demonstrates that the ICWA was designed primarily to counteract the unwarranted removal of Indian children from Indian families. See §1901(4). But the ICWA’s primary goal is not implicated when an Indian child’s adoption is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights. Nonbinding guidelines issued by the Bureau of Indian Affairs (BIA) demonstrate that the BIA envisioned that §1912(f)’s standard would apply only to termination of a custodial parent’s rights. Under this reading, Biological Father should not have been able to invoke §1912(f) in this case because he had never had legal or physical custody of Baby Girl as of the time of the adoption proceedings. Pp. 7–11. (b) Section §1912(d) conditions an involuntary termination of parental rights with respect to an Indian child on a showing “that active efforts have been made to provide remedial services . . . designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” Consistent with this text, §1912(d) applies only when an Indian family’s “breakup” would be precipitated by terminating parental rights. The term “breakup” refers in this context to “[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an effective entity,” Webster’s Third New International Dictionary 273 (1961). But when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no “relationship” to be “discontinu[ed]” and no “effective entity” to be “end[ed]” by terminating the Indian parent’s rights. In such a situation, the “breakup of the Indian family” has long since occurred, and §1912(d) is inapplicable. This interpretation is consistent with the explicit congressional purpose of setting certain “standards for the removal of Indian children from their families,” §1902, and with BIA Guidelines. Section 1912(d)’s proximity to §§1912(e) and (f), which both condition the outcome of proceedings on the merits of an Indian child’s “continued custody” with his parent, strongly suggests that the phrase “breakup of the Indian family” should be read in harmony with the “continued custody” requirement. Pp. 11–14.2. Section 1915(a)’s adoption-placement preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. No party other than Adoptive Couple sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court. Biological Father is not covered by §1915(a) because he did not seek to adopt Baby Girl; instead, he argued that his parental rights should not be terminated in the first place. And custody was never sought by Baby Girl’s paternal grandparents, other members of the Cherokee Nation, or other Indian families. Pp. 14–16.

@?

“The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U. S. C. §§1901–1963, was the product of rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32 (1989). Congress found that “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” §1901(4). This “wholesale removal of Indian children from their homes” prompted Congress to enact the ICWA, which establishes federal standards that govern state-court child custody proceedings involving Indian children.

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Thompson v. Thompson, 484 U.S. 174 (1988) (Parental Kidnaping Prevention Act of 1980)
Held: The PKPA does not provide an implied cause of action in federal court to determine which of two conflicting state custody decisions is valid. The context in which the PKPA was enacted -- the existence of jurisdictional deadlocks among the States in custody cases and a nationwide problem of interstate parental kidnaping -- suggests that Congress' principal aim was to extend the requirements of the Full Faith and Credit Clause to custody determinations, and not to create an entirely new cause of action. The language and placement of the Act reinforce this conclusion, in that the Act is an addendum to, and is therefore clearly intended to have the same operative effect as, the federal full faith and credit statute, the Act's heading is "Full faith and credit given to child custody determinations," and, unlike statutes that explicitly confer a right on a specified class of persons, the Act is addressed to States and to state courts. Moreover, in discussing the congressional rejection of a competing legislative proposal that would have extended the district courts' diversity jurisdiction to custody decree enforcement actions, the PKPA's legislative history provides an unusually clear indication that Congress did not intend the federal courts to play the enforcement role.  The fact that the cause of action petitioner seeks to infer is narrower than the congressionally rejected alternative is not controlling, since the federal courts would still be entangled in traditional state law questions that they have little expertise to resolve. The argument that failure to infer a cause of action would render the PKPA nugatory is also not persuasive, since it is based on the unacceptable presumption that the States are either unable or unwilling to enforce the Act's provisions, and since ultimate review remains available in this Court for truly intractable deadlocks.

@187
In sum, the context, language, and history of the PKPA together make out a conclusive case against inferring a cause of action in federal court to determine which of two conflicting state custody decrees is valid. Against this impressive evidence, petitioner relies primarily on the argument that failure to infer a cause of action would render the PKPA nugatory. We note, as a preliminary response, that ultimate review remains available in this Court for truly intractable jurisdictional deadlocks. In addition, the unspoken presumption in petitioner's argument is that the States are either unable or unwilling to enforce the provisions of the Act. This is a presumption we are not prepared, and more importantly, Congress was not prepared, to indulge. State courts faithfully administer the Full Faith and Credit Clause every day; now that Congress has extended full faith and credit requirements to child custody orders, we can think of no reason why the courts' administration of federal law in custody disputes will be any less vigilant. Should state courts prove as obstinate as petitioner predicts, Congress may choose to revisit the issue. But any more radical approach to the problem will have to await further legislative action; we "will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide." California v. Sierra Club, 451 U. S. 287, 451 U. S. 297 (1981).
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Yarborough v. Yarborough  290 U.S. 202 (1933)

1. A decree of a state court fixing the obligation of a divorced father for the support and education of his minor daughter held binding, under the full faith and credit clause of the Constitution, on thecourts of another state to which the daughter and the divorced mother had removed and in which it was sought to force additional contributions from the father by attachment of his local property. P. 290 U. S. 208 et seq.

2. By the law of Georgia, a decree in a divorce suit fixing the permanent alimony that the husband must pay for the support and education of his minor child may be entered by consent of the husband and wife before the rendition of the two concurring verdicts which the law makes necessary for the granting of total divorce; it becomes unalterable after the expiration of the term at which the total divorce was granted. P. 290 U. S. 209.

3. The provision which the Georgia law makes for permanent alimony for the child does not vest a property right in him, but is an incident of the divorce proceeding. Jurisdiction of the parents in that suit confers jurisdiction over the minor's custody and support. P. 290 U. S. 210.

4. Hence, by the Georgia law, a consent (or other) decree in a divorce suit fixing permanent alimony for a minor child is binding upon him, although the child was not served with process, was not made a formal party to the suit, and was not represented by guardian ad litem. P. 290 U. S. 210.

5. Appearance of both parents in the divorce proceeding in Georgia, the domicile of the father, gave the Georgia court complete jurisdiction of the marriage status and, as an incident, power to finally determine the extent of the father's obligation to support the child, though the child was residing in another state when the judgment was entered. P. 290 U. S. 211.

6. The fact that the child became a resident of the other state did not enable that state to impose additional duties on the father, who continued to be domiciled in Georgia. P. 290 U. S. 212.


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Ankenbrandt v. Richards  504 U.S. 689 (1992)

Held:

1. A domestic relations exception to federal diversity jurisdiction exists as a matter of statutory construction. Pp. 693-701.

(a) The exception stems from Barber v. Barber, 21 How. 582, 584, in which the Court announced in dicta, without citation of authority or discussion of foundation, that federal courts have no jurisdiction over suits for divorce or the allowance of alimony. The lower federal courts have ever since recognized a limitation on their jurisdiction based on that statement, and this Court is unwilling to cast aside an understood rule that has existed for nearly a century and a half. Pp. 693-695.

(b) An examination of Article III, § 2, of the Constitution and of Barber and its progeny makes clear that the Constitution does not mandate the exclusion of domestic relations cases from federal-court jurisdiction. Rather, the origins of the exception lie in the statutory requirements for diversity jurisdiction. De la Rama v. De la Rama, 201 U. S. 303, 307. Pp. 695-697.

(c) That the domestic relations exception exists is demonstrated by the inclusion of the defining phrase, "all suits of a civil nature at common law or in equity," in the pre-1948 versions of the diversity statute, by Barber's implicit interpretation of that phrase to exclude divorce and alimony actions, and by Congress' silent acceptance of this construction for nearly a century. Considerations of stare decisis have particular strength in this context, where the legislative power is implicated, and Congress remains free to alter what this Court has done. Patterson v. McLean Credit Union, 491 U. S. 164,172-173. Furthermore, it may be presumed that Congress amended the diversity statute in 1948 to replace the law/equity distinction with § 1332's "all civil actions" phrase with full cognizance of the Court's longstanding interpretation of the prior statutes, and that, absent any indication of an intent to the contrary, Congress adopted that interpretation in reenacting the statute. pp. 697-70l.

2. The domestic relations exception does not permit a district court to refuse to exercise diversity jurisdiction over a tort action for damages. The exception, as articulated by this Court since Barber, encompasses only cases involving the issuance of a divorce, alimony, or child custody decree. As so limited, the exception's validity must be reaffirmed, given the long passage of time without any expression of congressional dissatisfaction and sound policy considerations of judicial economy and expertise. Because this lawsuit in no way seeks a divorce, alimony, or child custody decree, the Court of Appeals erred by affirming the District Court's invocation of the domestic relations exception. Federal subject-matter jurisdiction pursuant to § 1332 is proper in this case. Pp. 701-704.

3. The District Court erred in abstaining from exercising jurisdiction under the Younger doctrine. Although this Court has extended Younger abstention to the civil context, it has never applied the notions of comity so critical to Younger where, as here, no proceeding was pending in state tribunals. Similarly, while it is not inconceivable that in certain circumstances the abstention principles developed in Burford v. Sun Oil Co., 319 U. S. 315, might be relevant in a case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody, such abstention is inappropriate here, where the status of the domestic relationship has been determined as a matter of state law, and in any event has no bearing on the underlying torts alleged. Pp. 704-706.

@696-701
Subsequent decisions confirm that Barber was not relying on constitutional limits in justifying the exception. In one such case, for instance, the Court stated the "long established rule" that federal courts lack jurisdiction over certain domestic relations matters as having been based on the assumptions that "husband and wife cannot usually be citizens of different States, so long as the marriage relation continues (a rule which has been somewhat relaxed in recent cases), and for the further reason that a suit for divorce in itself involves no pecuniary value." De la Rama v. De la Rama, 201 U. S. 303, 307 (1906). Since Article III contains no monetary limit on suits brought pursuant to federal diversity jurisdiction, De la Rama's articulation of the "rule" in terms of the statutory requirements for diversity jurisdiction further supports the view that the exception is not grounded in the Constitution.

Moreover, even while citing with approval the Barber language purporting to limit the jurisdiction of the federal courts over domestic relations matters, the Court has heard appeals from territorial courts involving divorce, see, e. g., De la Rama, supra; Simms v. Simms, 175 U. S. 162 (1899), and has upheld the exercise of original jurisdiction by federal courts in the District of Columbia to decide divorce actions, see, e. g., Glidden Co. v. Zdanok, 370 U. S. 530, 581, n. 54 (1962). Thus, even were the statements in De la Rama referring to the statutory prerequisites of diversity jurisdiction alone not persuasive testament to the statutory origins of the rule, by hearing appeals from legislative, or Article I, courts, this Court implicitly has made clear its understanding that the source of the constraint on jurisdiction from Barber was not Article III; otherwise the Court itself would have lacked jurisdiction over appeals from these legislative courts. See National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 643 (1949) (Vinson, C. J., dissenting) ("We can no more review a legislative court's decision of a case which is not among those enumerated in Art. III than we can hear a case from a state court involving purely state law questions"). We therefore have no difficulty concluding that when the Barber Court "disclaim[ed] altogether any jurisdiction in the courts of the United States upon the subject of divorce," 21 How., at 584, it was not basing its statement on the Constitution.

B

That Article III, § 2, does not mandate the exclusion of domestic relations cases from federal-court jurisdiction, however, does not mean that such courts necessarily must retain and exercise jurisdiction over such cases. Other constitutional provisions explain why this is so. Article I, § 8, cl. 9, for example, authorizes Congress "[t]o constitute Tribunals inferior to the supreme Court" and Article III, § 1, states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
The Court's cases state the rule that "if inferior federal courts were created, [Congress was not] required to invest them with all the jurisdiction it was authorized to bestow under Art. IlL" Palmore v. United States, 411 U. S. 389, 401 (1973).

This position has held constant since at least 1845, when the Court stated that "the judicial power of the United States ... is (except in enumerated instances, applicable exclusively to this Court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) ... and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good." Cary v. Curtis, 3 How. 236, 245. See Sheldon v. Sill, 8 How. 441 (1850); Plaquemines Tropical Fruit Co. v. Henderson, 170 U. S. 511 (1898); Kline v. Burke Constr. Co., 260 U. S. 226 (1922); Lockerty v. Phillips, 319 U. S. 182 (1943). We thus turn our attention to the relevant jurisdictional statutes.

The Judiciary Act of 1789 provided that "the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and ... an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State." Act of Sept. 24, 1789, § 11, 1 Stat. 78 (emphasis added). The defining phrase, "all suits of a civil nature at common law or in equity," remained a key element of statutory provisions demarcating the terms of diversity jurisdiction until 1948, when Congress amended the diversity jurisdiction provision to eliminate this phrase and replace in its stead the term "all civil actions." 1948 Judicial Code and Judiciary Act, 62 Stat. 930, 28 U. S. C. § 1332.

The Barber majority itself did not expressly refer to the diversity statute's use of the limitation on "suits of a civil nature at common law or in equity." The dissenters in Barber, however, implicitly made such a reference, for they suggested that the federal courts had no power over certain domestic relations actions because the court of chancery lacked authority to issue divorce and alimony decrees. Stating that "[t]he origin and the extent of [the federal courts'] jurisdiction must be sought in the laws of the United States, and in the settled rules and principles by which those laws have bound them," the dissenters contended that "as the jurisdiction of the chancery in England does not extend to or embrace the subjects of divorce and alimony, and as the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England, all power or cognizance with respect to those subjects by the courts of the United States in chancery is equally excluded." Barber, 21 How., at 605 (Daniel, J., dissenting). Hence, in the dissenters' view, a suit seeking such relief would not fall within the statutory language "all suits of a civil nature at common law or in equity." Because the Barber Court did not disagree with this reason for accepting the jurisdictional limitation over the issuance of divorce and alimony decrees, it may be inferred fairly that the jurisdictional limitation recognized by the Court rested on this statutory basis and that the disagreement between the Court and the dissenters thus centered only on the extent of the limitation.

We have no occasion here to join the historical debate over whether the English court of chancery had jurisdiction to handle certain domestic relations matters, though we note that commentators have found some support for the Barber majority's interpretation. Certainly it was not unprecedented at the time for the Court to infer, from what it understood to be English chancery practice, some guide to the meaning of the 1789 Act's jurisdictional grant. See, e. g., Robinson v. Campbell, 3 Wheat. 212, 221-222 (1818). We thus are content to rest our conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of the historical justifications on which it was seemingly based, but rather on Congress' apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 1948, when the statute limited jurisdiction to "suits of a civil nature at common law or in equity." As the court in Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 514 (CA2 1973), observed: "More than a century has elapsed since the Barber dictum without any intimation of Congressional dissatisfaction .... Whatever Article III mayor may not permit, we thus accept the Barber dictum as a correct interpretation of the Congressional grant." Considerations of stare decisis have particular strength in this context, where "the legislative power is implicated, and Congress remains free to alter what we have done." Patterson v. McLean Credit Union, 491 U. S. 164, 172-173 (1989).

When Congress amended the diversity statute in 1948 to replace the law/equity distinction with the phrase "all civil actions," we presume Congress did so with full cognizance of the Court's nearly century-long interpretation of the prior statutes, which had construed the statutory diversity jurisdiction to contain an exception for certain domestic relations matters. With respect to the 1948 amendment, the Court has previously stated that "no changes of law or policy are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed." Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227 (1957); see also Finley v. United States, 490 U. S. 545, 554 (1989). With respect to such a longstanding and well-known construction of the diversity statute, and where Congress made substantive changes to the statute in other respects, see 28 U. S. C. § 1332 note, we presume, absent any indication that Congress intended to alter this exception, see ibid.; Advisory Committee's Note 3 to Fed. Rule Civ. Proc. 2, 28 U. S. C. App., p. 555, that Congress "adopt[ed] that interpretation" when it reenacted the diversity statute. Lorillard v. Pons, 434 U. S. 575, 580 (1978).


@702

Subsequently, this Court expanded the domestic relations exception to include decrees in child custody cases. In a child custody case brought pursuant to a writ of habeas corpus, for instance, the Court held void a writ issued by a Federal District Court to restore a child to the custody of the father. "As to the right to the control and possession of this child, as it is contested by its father and its grandfather, it is one in regard to which neither the Congress of the United States nor any authority of the United States has any special jurisdiction." In re Burrus, 136 U. S., at 594.

@705-706
It is not inconceivable, however, that in certain circumstances, the abstention principles developed in Burford v. Sun Oil Co., 319 U. S. 315 (1943), might be relevant in a case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody. This would be so when a case presents "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar." Colorado River Water Conservation Dist., supra, at 814. Such might well be the case if a federal suit were filed prior to effectuation of a divorce, alimony, or child custody decree, and the suit depended on a determination of the status of the parties. Where, as here, the status of the domestic relationship has been determined as a matter of state law, and in any event has no bearing on the underlying torts  alleged, we have no difficulty concluding that Burford abstention is inappropriate in this case.

*********************************
Webb v. Webb 451 U.S. 493 (1981)

Held: Where the record discloses that petitioner failed to raise her federal claim in the Georgia courts and that the Georgia Supreme Court failed to rule on a federal issue, this Court is without jurisdiction to decide that issue, and accordingly the writ of certiorari is dismissed.

@495

Our examination of the record convinces us that petitioner failed properly to raise or preserve a claim under the Full Faith and Credit Clause of the Federal Constitution in the Georgia courts.

We note first that nowhere in the opinion of the Georgia Supreme Court is any federal question mentioned, let alone expressly passed upon. Nor is any federal issue mentioned by the dissenting opinion in that court. This Court has frequently stated that, when "the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary." Street v. New York, 394 U. S. 576,

@496-498
Although petitioner did use the phrase "full faith and credit" at several points in the proceedings below, nowhere did she cite to the Federal Constitution or to any cases relying on the Full Faith and Credit Clause of the Federal Constitution. In her amended motion to dismiss in the Georgia trial court, petitioner added the following contention:

"Plaintiff herein continues to act contrary to the order of the Superior Court of Berrine County, entered September 22, 1977, and also is acting in violation of the April 18, 1979, order of the circuit court of Alachua County, Florida . . . which order should be accorded full faith and credit by this court, as it was made pursuant to relevant Florida law, as stated above."

Also, in petitioner's enumeration of errors to the Georgia Supreme Court, she stated that "the [c]ourt erred in failing to find a Florida decree of April 18 1979, a valid order in a prior pending action, give such full faith and credit, enforce it by ordering Plaintiff to comply with it in all respects, and dismiss this action. [Footnote 3]"

It is a long-settled rule that the jurisdiction of this Court to reexamine the final judgment of a state court can arise only if the record as a whole shows either expressly or by clear implication that the federal claim was adequately presented in the state system. New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 278 U. S. 67 (1928); Oxley Stave Co. v. Butler County, 166 U. S. 648, 166 U. S. 655 (1897). Petitioner argues that, since the Georgia Constitution has no full faith and credit clause, there can be no doubt that the above references in the record were to the Federal Constitution, and therefore that her federal claim was properly presented. See Tr. of Oral Arg. 4. We are unpersuaded. In fact, we find it far more likely that petitioner was referring to state law.

The Georgia Supreme Court understood this case to concern primarily the requirements of the Uniform Child Custody Jurisdiction Act: "This case calls for an interpretation of certain provisions of Georgia's Uniform Child Custody Jurisdiction Act, Code Ann. § 74-501, et seq." That Act has been adopted by both Georgia and Florida. Section 74-514 of that Act, as codified by Georgia, states:

"The courts of this State shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this Chapter, or which was made under factual circumstances meeting the jurisdictional standards of the Chapter, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this Chapter."

Ga.Code § 74-514 (1979). Interpreting the meaning of this section is obviously a matter of Georgia state law, but a litigant could plausibly refer to it as a statutory full faith and credit requirement. The record supports the view that it was so understood in this case, by both the courts and the parties.

At the trial court hearing, petitioner discussed the Florida decree, but did not invoke the Full Faith and Credit Clause of the Federal Constitution. Rather, petitioner argued that, in failing to make the Georgia court aware of the previous decree, respondent had violated the terms of the Uniform Child Custody Jurisdiction Act:


@500-501
There are also very practical reasons for insisting that federal issues be presented first in the state court system. The requirement affords the parties the opportunity to develop the record necessary for adjudicating the issue. It permits the state courts to exercise their authority, which federal courts, including this one, do not have, at least to the same extent, to construe state statutes so as to avoid or obviate federal constitutional challenges such as vagueness and overbreadth. The rule also insures that, if there are independent and adequate state grounds that would pretermit the federal issue, they will be identified and acted upon in an authoritative manner. Finally, if the parties to state court litigation are required to present their federal claims in the state tribunals in the first instance, those issues will be adjudicated in the state courts where necessary to dispose of the case. In most instances, such a judgment will be supported by an opinion that may well obviate any reason for our giving  plenary consideration to the case. In terms of our own workload, this is a very substantial matter.

For all of these reasons, we, as well as litigants seeking to bring cases here from the state courts, should take care to comply with the jurisdictional statute and our rules.

*************************************
Lehman v. Lycoming Cty. Ch. Svcs. Agcy.  458 U.S. 502 (1982)  (habeas corpus to regard terminated parental rights, failed)

Held: Section 2254(a) does not confer jurisdiction on federal courts to consider collateral challenges to state court judgments involuntarily terminating parental rights. Pp. 458 U. S. 508-516.

(a) Although the scope of the federal writ of habeas corpus has been extended beyond that which the most literal reading of the statute might require, the writ has not been considered a generally available federal remedy for every violation of federal rights. The writ's availability has been limited to challenges to state court judgments in situations where, as a result of a state court criminal conviction, a petitioner has suffered substantial restraints not shared by the public generally, and the petitioner has been found to be "in custody" within the meaning of § 2254(a). Here, petitioner's children are not in the "custody" of the State in the way in which this term has been used in determining the availability of the writ of habeas corpus. They are in the "custody" of their foster parents in essentially the same way, and to the same extent, other children are in the custody of their natural or adoptive parents. They suffer no restraint on liberty not shared by the public generally, cf. Jones v. Cunningham, 371 U. S. 236; Hensley v. Municipal Court, 411 U. S. 345, nor

Page 458 U. S. 503

do they suffer "collateral consequences" sufficient to outweigh the need for finality, cf. Carafas v. LaVallee, 391 U. S. 234. To extend the federal writ to challenges to state child custody decisions based on alleged constitutional defects collateral to the actual custody decision would be an unprecedented expansion of the jurisdiction of the federal courts. Pp. 458 U. S. 508-512.

(b) Federalism and the exceptional need for finality in child custody disputes also argue strongly against the grant of the writ here. Extended uncertainty for the children would be inevitable in many cases if federal courts had jurisdiction to relitigate state custody decisions. Pp. 458 U. S.
512-514.

(c) Habeas corpus has been used in child custody cases in many States and in England, and 28 U.S.C. § 2255, authorizing federal court collateral review of federal decisions, could be construed to include the type of custody to which petitioner's children are subject. But reliance on what may be appropriate within the federal system or within a state system is of little force where, as in this case, a state judgment is attacked collaterally in a federal court. Petitioner would have the federal judicial system entertain a writ that is not time-barred to challenge collaterally a final judgment
entered in a state judicial system. Pp. 458 U. S. 514-515.

**************************************
Abbott v. Abbott 560 U.S. ___ (2010) (chilean child adbucted to the usa, icara case)

@?B
This Court’s conclusion that Mr. Abbott possesses a right of custody under the Convention is supported and informed by the State Department’s view on the issue. The United States has endorsed the view that ne exeat rights are rights of custody. In its brief before this Court the United States advises that “the Department of State, whose Office of Children’s Issues serves as the Central Authority for the United States under the Convention, has long understood the Convention as including ne exeat rights among the protected ‘rights of custody.’  ” Brief for United States as Amicus Curiae 21; see Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185, n. 10 (1982) (deferring to the Executive’s interpretation of a treaty as memorialized in a brief before this Court). It is well settled that the Executive Branch’s interpretation of a treaty “is entitled to great weight.” Id., at 185. There is no reason to doubt that this well-established canon of deference is appropriate here. The Executive is well informed concerning the diplomatic consequences resulting from this Court’s interpretation of “rights of custody,” including the likely reaction of other contracting states and the impact on the State Department’s ability to reclaim children abducted from this country.

@?C
 This Court’s conclusion that ne exeat rights are rights of custody is further informed by the views of other contracting states. In interpreting any treaty, “[t]he ‘opinions of our sister signatories’ … are ‘entitled to considerable weight.’ ” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 176 (1999) (quoting Air France v. Saks, 470 U. S. 392, 404 (1985)). The principle applies with special force here, for Congress has directed that “uniform international interpretation of the Convention” is part of the Convention’s framework. See §11601(b)(3)(B).

   A review of the international case law confirms broad acceptance of the rule that ne exeat rights are rights of custody. In an early decision, the English High Court of Justice explained that a father’s “right to ensure that the child remain[ed] in Australia or live[d] anywhere outside Australia only with his approval” is a right of custody requiring return of the child to Australia. C. v. C., [1989] 1 W. L. R. 654, 658 (C. A.). Lords of the House of Lords have agreed, noting that C. v. C.’s conclusion is “settled, so far as the United Kingdom is concerned” and “appears to be the majority [view] of the common law world.” See In re D (A Child), [2007] 1 A. C. 619, 628, 633, 635 (2006).

@?
 Requiring a return remedy in cases like this one helps deter child abductions and respects the Convention’s purpose to prevent harms resulting from abductions. An abduction can have devastating consequences for a child. “Some child psychologists believe that the trauma children suffer from these abductions is one of the worst forms of child abuse.” H. R. Rep. No. 103–390, p. 2 (1993). A child abducted by one parent is separated from the second parent and the child’s support system. Studies have shown that separation by abduction can cause psychological problems ranging from depression and acute stress disorder to posttraumatic stress disorder and identity-formation issues. See N. Faulkner, Parental Child Abduction is Child Abuse (1999), http://www.prevent-abuse-now.com/unreport.htm (as visited May 13, 2010, and available in Clerk of Court’s case file). A child abducted at an early age can experience loss of community and stability, leading to loneliness, anger, and fear of abandonment. See Huntington, Parental Kidnapping: A New Form of Child Abuse (1982), in American Prosecutors Research Institute’s National Center for Prosecution of Child Abuse, Parental Abduction Project, Investigation and Prosecution of Parental Abduction (1995) (App. A). Abductions may prevent the child from forming a relationship with the left-behind parent, impairing the child’s ability to mature. See Faulkner, supra, at 5.


@?
This Court’s conclusion that Mr. Abbott possesses a right of custody under the Convention is supported and informed by the State Department’s view on the issue. The United States has endorsed the view that ne exeat rights are rights of custody. In its brief before this Court the United States advises that “the Department of State, whose Office of Children’s Issues serves as the Central Authority for the United States under the Convention, has long understood the Convention as including ne exeat rights among the protected ‘rights of custody.’  ” Brief for United States as Amicus Curiae 21; see Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185, n. 10 (1982) (deferring to the Executive’s interpretation of a treaty as memorialized in a brief before this Court). It is well settled that the Executive Branch’s interpretation of a treaty “is entitled to great weight.” Id., at 185. There is no reason to doubt that this well-established canon of deference is appropriate here. The Executive is well informed concerning the diplomatic consequences resulting from this Court’s interpretation of “rights of custody,” including the likely reaction of other contracting states and the impact on the State Department’s ability to reclaim children abducted from this country.

*****************************
Mississippi Choctaw Indians v. Holyfield  490 U.S. 30 (1989)

Held: The twins were "domiciled" on the Tribe's reservation within the meaning of the ICWA's exclusive tribal jurisdiction provision, and the Chancery Court was, accordingly, without jurisdiction to enter the adoption decree. Pp. 490 U. S. 42-54.

(a) Although the ICWA does not define "domicile," Congress clearly intended a uniform federal law of domicile for the ICWA, and did not consider the definition of the word to be a matter of state law. The ICWA's purpose was, in part, to make clear that, in certain situations, the state courts did not have jurisdiction over child custody proceedings. In fact,

Page 490 U. S. 31

the statutory congressional findings demonstrate that Congress perceived the States and their courts as partly responsible for the child separation problem it intended to correct. Thus, it is most improbable that Congress would have intended to make the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law. Moreover, Congress could hardly have intended the lack of nationwide uniformity that would result from state law definitions of "domicile," whereby different rules could apply from time to time to the same Indian child simply as a result of his or her being moved across state lines. Pp. 490 U. S. 43-47.

(b) The generally accepted meaning of the term "domicile" applies under the ICWA to the extent it is not inconsistent with the objectives of the statute. In the absence of a statutory definition, it is generally assumed that the legislative purpose is expressed by the ordinary meaning of the words used, in light of the statute's object and policy. Well settled common law principles provide that the domicile of minors, who generally are legally incapable of forming the requisite intent to establish a domicile, is determined by that of their parents, which has traditionally meant the domicile of the mother in the case of illegitimate children. Thus, since the domicile of the twins' mother (as well as their father) has been, at all relevant times, on appellant's reservation, the twins were also domiciled there even though they have never been there. This result is not altered by the fact that they were "voluntarily surrendered" for adoption. Congress enacted the ICWA because of concerns going beyond the wishes of individual parents, finding that the removal of Indian children from their cultural setting seriously impacts on long-term tribal survival, and has a damaging social and psychological impact on many individual Indian children. These concerns demonstrate that Congress could not have intended to enact a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme simply by giving birth and placing the child for adoption off the reservation.


@32-33
The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§ 1901-1963, was the product of rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. Senate oversight hearings in 1974 yielded numerous examples, statistical data, and expert testimony documenting what one witness called "[t]he wholesale removal of Indian children from their homes, . . . the most tragic aspect of Indian life today." Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93d Cong., 2d Sess., 3 (statement of William Byler) (hereinafter 1974 Hearings). Studies undertaken by the Association on American Indian Affairs in 1969 and 1974, and presented in the Senate hearings, showed that 25 to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions. Id. at 15; see also H.R.Rep. No. 95-1386, p. 9 (1978) (hereinafter House Report). Adoptive placements counted significantly in this total: in the State of Minnesota, for example, one in eight Indian children under the age of 18 was in an adoptive home, and, during the year 1971-1972, nearly one in every four infants under one year of age was placed for adoption. The adoption rate of Indian children was eight times that of non-Indian children. Approximately 90% of the Indian placements were in non-Indian homes. 1974 Hearings, at 75-83. A number of witnesses also testified to the serious adjustment problems encountered by such children during adolescence, as well as the impact of the adoptions on Indian parents and the tribes themselves.

@34
 For example, Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians and representative of the National Tribal Chairmen's Association, testified as follows: "Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes' ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships."

@34-35
Chief Isaac also summarized succinctly what numerous witnesses saw as the principal reason for the high rates of removal of Indian children:

"One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are, at best, ignorant of our cultural values, and, at worst, contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child."

@35-36
The congressional findings that were incorporated into the ICWA reflect these sentiments. The Congress found:

"(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . . ;"

"(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies, and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and"

"(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families."

@36
At the heart of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. Section 1911 lays out a dual jurisdictional scheme. Section 1911(a) establishes exclusive jurisdiction in the tribal courts for proceedings concerning an Indian child "who resides or is domiciled within the reservation of such tribe," as well as for wards of tribal courts regardless of domicile. [Footnote 5] Section 1911(b), on the other hand, creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of "good cause," objection by either parent, or declination of jurisdiction by the tribal court.

Various other provisions of ICWA Title I set procedural and substantive standards for those child custody proceedings that do take place in state court. The procedural safeguards include requirements concerning notice and appointment of counsel; parental and tribal rights of intervention and petition for invalidation of illegal proceedings; procedures governing voluntary consent to termination of parental rights; and a full faith and credit obligation in respect to tribal court decisions. See §§ 1901-1914. The most important substantive requirement imposed on state courts is that of § 1915(a), which, absent "good cause" to the contrary, mandates that adoptive placements be made preferentially with (1) members of the child's extended family, (2) other members of the same tribe, or (3) other Indian families.

@44-45
First, and most fundamentally, the purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-a-vis state authorities. [Footnote 17] More specifically, its purpose was, in part, to make clear that, in certain situations, the state courts did not have jurisdiction over child custody proceedings. Indeed, the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to correct. See 25 U.S.C. § 1901(5) (state "judicial bodies . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families"). [Footnote 18] Under these circumstances, it is most improbable that Congress would have intended to leave the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law.

Second, Congress could hardly have intended the lack of nationwide uniformity that would result from state law definitions of domicile. An example will illustrate. In a case quite similar to this one, the New Mexico state courts found exclusive jurisdiction in the tribal court pursuant to § 1911(a),
because the illegitimate child took the reservation domicile of its mother at birth -- notwithstanding that the child was placed in the custody of adoptive parents two days after its off-reservation birth and the mother executed a consent to adoption 10 days later. In re Adoption of Baby Child,
102 N.M. 735, 737-738, 700 P.2d 198, 200-201 (App.1985). [Footnote 19] Had that mother traveled to Mississippi to give birth, rather than to Albuquerque, a different result would have obtained if state law definitions of domicile applied. The same, presumably, would be true if the child had been transported to Mississippi for adoption after her off-reservation birth in New Mexico. While the child's custody proceeding would have been subject to exclusive tribal jurisdiction in her home State, her mother, prospective adoptive parents, or an adoption intermediary could have obtained an adoption decree in state court merely by transporting her across state lines. [Footnote 20] Even if we could conceive of a federal statute under which the rules of domicile (and thus of jurisdiction) applied differently to different Indian children, a statute under which different rules apply from time to time to the same child, simply as a result of his or her transport from one State to another, cannot be what Congress had in mind We have often stated that, in the absence of a statutory definition, we "start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U. S. 1, 369 U. S. 9 (1962); Russello v. United States, 464 U. S. 16, 464 U. S. 21 (1983). We do so, of course, in the light of the "'object and policy"' of the statute. Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 350 U. S. 285 (1956), quoting United States v. Boisdore's Heirs, 8 How. 113, 49 U. S. 122 (1849). We therefore look both to the generally accepted meaning of the term "domicile" and to the purpose of the statute.

That we are dealing with a uniform federal rather than a state definition does not, of course, prevent us from drawing on general state law principles to determine "the ordinary meaning of the words used." Well settled state law can inform our understanding of what Congress had in mind when it employed a term it did not define. Accordingly, we find it helpful to borrow established common law principles of domicile to the extent that they are not inconsistent with the objectives of the congressional scheme.

"Domicile" is, of course, a concept widely used in both federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is generally uncontroverted. See generally Restatement §§ 11-23; R. Leflar, L. McDougal, & R. Felix, American Conflicts Law 17-38 (4th ed.1986); R. Weintraub, Commentary on the Conflict of Laws 12-24 (2d ed.1980). "Domicile" is not necessarily synonymous with "residence," Perri v. Kisselbach, 34 N.J. 84, 87, 167 A.2d 377, 379 (1961), and one can reside in one place but be domiciled in another, District of Columbia v. Murphy, 314 U. S. 441 (1941); In re Estate of Jones, 192 Iowa 78, 80, 182 N.W. 227, 228 (1921). For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there. Texas v. Florida, 306 U. S. 398, 306 U. S. 424 (1939). One acquires a "domicile of origin" at birth, and that domicile continues until a new one (a "domicile of choice") is acquired. Jones, supra, at 81, 182 N.W. at 228; In re Estate of Moore, 68 Wash.2d 792, 796, 415 P.2d 653, 656 (1966). Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents. Yarborough v. Yarborough, 290 U. S. 202, 290 U. S. 211 (1933). In the case of an illegitimate child, that has traditionally meant the domicile of its mother. Kowalski v. Wojtkowski, 19 N.J. 247, 258, 116 A.2d 6, 12 (1955); Moore, supra, at 796, 415 P.2d at 656; Restatement § 14(2), § 22, Comment c; 25 Am. Jur.2d Domicil § 69 (1966). Under these principles, it is entirely logical that "[o]n occasion, a child's domicil of origin will be in a place where the child has never been." Restatement § 14, Comment b.

It is undisputed in this case that the domicile of the mother (as well as the father) has been, at all relevant times, on the Choctaw Reservation. Tr. of Oral Arg. 28-29. Thus, it is clear that at their birth the twin babies were also domiciled on the reservation, even though they themselves had never been there. The statement of the Supreme Court of Mississippi that "[a]t no point in time can it be said the twins . . . were domiciled within the territory set aside for the reservation," 511 So.2d at 921, may be a correct statement of that State's law of domicile, but it is inconsistent with generally accepted doctrine in this country and cannot be what Congress had in mind when it used the term in the ICWA.

@49-50

Nor can the result be any different simply because the twins were "voluntarily surrendered" by their mother. Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians. See 25 U.S.C.§§ 1901(3) ("[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children"), 1902 ("promote the stability and security of Indian tribes"). [Footnote 23] The numerous prerogatives accorded the tribes through the ICWA's substantive provisions, e.g., §§ 1911(a) (exclusive jurisdiction over reservation domiciliaries), 1911(b) (presumptive jurisdiction over nondomiciliaries), 1911(c) (right of intervention), 1912(a) (notice), 1914 (right to petition for invalidation of state court action), 1915(c) (right to alter presumptive placement priorities applicable to state court actions), 1915(e) (right to obtain records), 1919 (authority to conclude agreements with States), must, accordingly, be seen as a means of protecting not only the interests of individual Indian children and families, but also of the tribes themselves.

In addition, it is clear that Congress' concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children themselves of such placements outside their culture. [Footnote 24] Congress determined to subject such placements to the ICWA's jurisdictional and other provisions, even in cases where the parents consented to an adoption, because of concerns going beyond the wishes of individual parents. As the 1977 Final Report of the congressionally established American Indian Policy Review Commission stated, in summarizing these two concerns, "[r]emoval of Indian children from their cultural setting seriously impacts a long-term tribal survival and has damaging social and psychological impact on many individual Indian children."Senate Report, at 52.

@53-54

We are not unaware that over three years have passed since the twin babies were born and placed in the Holyfield home, and that a court deciding their fate today is not writing on a blank slate in the same way it would have in January, 1986. Three years' development of family ties cannot be undone, and a separation at this point would doubtless cause considerable pain.

Whatever feelings we might have as to where the twins should live, however, it is not for us to decide that question. We have been asked to decide the legal question of who should make the custody determination concerning these children -- not what the outcome of that determination should be. The law places that decision in the hands of the Choctaw tribal court. Had the mandate of the ICWA been followed in 1986, of course, much potential anguish might have been avoided, and in any case the law cannot be applied so as automatically to "reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation." Halloway, 732 P.2d at 972. It is not ours to say whether the trauma that might result from removing these children from their adoptive family should outweigh the interest of the Tribe -- and perhaps the children themselves -- in having them raised as part of the Choctaw community. [Footnote 28] Rather, "we must defer to the experience, wisdom, and compassion of the [Choctaw] tribal courts to fashion an appropriate remedy."

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M. L. B. v. S. L. J., individually and as next friend of the minor children, S. L  519 US 101 (1996)

Held: Just as a State may not block an indigent petty offender’s access to an appeal afforded others, see Mayer v. Chicago, 404 U. S. 189, 195–196, so Mississippi may not deny M. L. B., because of her poverty, appellate review of the sufficiency of the evidence on which the trial court based its parental termination decree. Pp. 110–128. (a) The foundation case in the relevant line of decisions is Griffin v. Illinois, 351 U. S. 12, in which the Court struck down an Illinois rule that effectively conditioned thoroughgoing appeals from criminal convictions on the defendant’s procurement of a transcript of trial proceedings. The Illinois rule challenged in Griffin deprived most defendants lacking the means to pay for a transcript of any access to appellate review. Although the Federal Constitution guarantees no right to appellate review, id., at 18 (plurality opinion), once a State affords that right, Griffin held, the State may not “bolt the door to equal justice,” id., at 24 (Frankfurter, J., concurring in judgment). The Griffin plurality drew support for its decision from the Due Process and Equal Protection Clauses, id., at 13, 18, while Justice Frankfurter emphasized and explained the decision’s equal protection underpinning, id., at 23. Of prime relevance to the question presented by M. L. B., Griffin’s principle has not been confined to cases in which imprisonment is at stake, but extends to appeals from convictions of petty offenses, involving conduct “quasi criminal” in nature. Mayer, 404 U. S., at 196, 197. In contrast, an indigent defendant’s right to counsel at state expense does not extend to nonfelony trials if no term of imprisonment is actually imposed. Scott v. Illinois, 440 U. S. 367, 373–374. Pp. 110–113.

(b) This Court has also recognized a narrow category of civil cases in which the State must provide access to its judicial processes without regard to a party’s ability to pay court fees. See, e. g., Boddie v. Connecticut, 401 U. S. 371, 374 (divorce proceedings). Making clear, however, that a constitutional requirement to waive court fees in civil cases is the exception, not the general rule, the Court has refused to extend Griffin to the broad array of civil cases. See United States v. Kras, 409 U. S. 434, 445; Ortwein v. Schwab, 410 U. S. 656, 661 (per curiam). But the Court has consistently set apart from the mine run of civil cases those involving state controls or intrusions on family relationships. In that domain, to guard against undue official intrusion, the Court has examined closely and contextually the importance of the governmental interest advanced in defense of the intrusion. Pp. 113–116.

(c) M. L. B.’s case, involving the State’s authority to sever permanently a parent-child bond, demands the close consideration the Court has long required when a family association “of basic importance in our society” is at stake. Boddie, 401 U. S., at 376. The Court approaches M. L. B.’s petition mindful of the gravity of the sanction imposed on her and in light of two prior decisions most immediately in point: Lassiter v. Department of Social Servs. of Durham Cty., 452 U. S. 18 (appointment of counsel for indigent defendants in parental status termination proceedings is not routinely required by the Constitution, but should be determined on a case-by-case basis), and Santosky v. Kramer, 455 U.S. 745 (“clear and convincing” proof standard is constitutionally required in parental termination proceedings). Although both Lassiter and Santosky yielded divided opinions, the Court was unanimously of the view that “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,” Santosky, 455 U. S., at 774 (Rehnquist, J., dissenting), and that “[f]ew consequences of judicial action are so grave as the severance of natural family ties,” id., at 787.

(d) Guided by Lassiter, Santosky, and other decisions acknowledging the primacy of the parent-child relationship, the Court agrees with M. L. B. that Mayer points to the disposition proper in this case: Her parental termination appeal must be treated as the Court has treated petty offense appeals, and Mississippi may not withhold the transcript she needs to gain review of the order ending her parental status. The Court’s decisions concerning access to judicial processes, commencing with Griffin and running through Mayer, reflect both equal protection and due process concerns. See Ross v. Moffitt, 417 U. S. 600, 608– 609. In these cases, “[d]ue process and equal protection principles converge.” Bearden v. Georgia, 461 U. S. 660, 665. A “precise rationale” has not been composed, Ross, 417 U. S., at 608, because cases of this order “cannot be resolved by resort to easy slogans or pigeonhole analysis,” Bearden, 461 U. S., at 666. Nevertheless, “[m]ost decisions in this area,” the Court has recognized, “res[t] on an equal protection framework,” id., at 665, as M. L. B.’s plea heavily does, for due process does not independently require that the State provide a right to appeal. Placing this case within the framework established by the Court’s past decisions in this area, the Court inspects the character and intensity of the individual interest at stake, on the one hand, and the State’s justification for its exaction, on the other. See id., at 666–667. As in the case of the indigent petty offender charged in Mayer, the stakes for M. L. B. are large. Parental status termination is “irretrievabl[y] destructi[ve]” of the most fundamental family relationship. Santosky, 455 U. S., at 753. And the risk of error, Mississippi’s experience shows, is considerable. Mississippi has, consistent with Santosky, adopted a “clear and convincing proof” standard for parental status termination cases, but the Chancellor’s order in this case simply recites statutory language; it describes no evidence, and otherwise details no reasons for finding M. L. B. “clear[ly] and convincing[ly]” unfit to be a parent. Only a transcript can reveal the sufficiency, or insufficiency, of the evidence to support that stern judgment. Mississippi’s countervailing interest in offsetting the costs of its court system is unimpressive when measured against the stakes for M. L. B. The record discloses that, in the tightly circumscribed category of parental status termination cases, appeals are few, and not likely to impose an undue burden on the State. Moreover, it would be anomalous to recognize a right to a transcript needed to appeal a misdemeanor conviction—though trial counsel may be flatly denied such a defendant—but hold, at the same time, that a transcript need not be prepared for M. L. B.—though were her defense sufficiently complex, state-paid counsel, as Lassiter instructs, would be designated for her. While the Court does not question the general rule, stated in Ortwein, 410 U. S., at 660, that fee quirements ordinarily are examined only for rationality, the Court’s cases solidly establish two exceptions to that rule. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663. Nor may access to judicial processes in cases criminal or “quasi criminal” in nature, Mayer, 404 U. S., at 196, turn on ability to pay. The Court places decrees forever terminating parental rights in the category of cases in which the State may not “bolt the door to equal justice.” Griffin, 351 U. S., at 24 (Frankfurter, J., concurring in judgment). Pp. 119–124.

(e) Contrary to respondents’ contention, cases in which the Court has held that government need not provide funds so that people can exercise even fundamental rights, see, e. g., Lyng v. Automobile Workers, 485 U. S. 360, 363, n. 2, 370–374, are inapposite here. Complainants in those cases sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action. M. L. B.’s complaint is of a different order. She is endeavoring to defend against the State’s destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication. Like a defendant resisting criminal conviction, she seeks to be spared from the State’s devastatingly adverse action. That is the very reason this Court has paired her case with Mayer, not with Ortwein or Kras. Also rejected is respondents’ suggestion that Washington v. Davis, 426 U. S. 229, 242, effectively overruled the Griffin line of cases in 1976 by rejecting the notion “that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.” That this Court has not so conceived the meaning and effect of Washington v. Davis is demonstrated by Bearden, 461 U. S., at 664–665, in which the Court adhered in 1983 to “Griffin’s principle of ‘equal justice.’ ” The Court recognized in Griffin that “a law nondiscriminatory on its face may be grossly discriminatory in operation,” 351 U. S., at 17, n. 11, and explained in Williams v. Illinois, 399 U. S. 235, 242, that an Illinois statute it found unconstitutional in that case “in operative effect expose[d] only indigents to the risk of imprisonment beyond the statutory maximum.” Like the sanction in Williams, the Mississippi prescription here at issue is not merely disproportionate in impact, but wholly contingent on one’s ability to pay, thereby “visit[ing] different consequences on two categories of persons.” Ibid. A failure rigidly to restrict Griffin to cases typed “criminal” will not result in the opening of judicial floodgates, as respondents urge. This Court has repeatedly distinguished parental status termination decrees from mine run civil actions on the basis of the unique deprivation termination decrees work: permanent destruction of all legal recognition of the parental relationship. Lassiter and Santosky have not served as precedent in other areas, and the Court is satisfied that the label “civil” should not entice it to leave undisturbed the Mississippi courts’ disposition of this case. Cf. In re Gault, 387 U. S. 1, 50. Pp. 124–128.

(f) Thus, Mississippi may not withhold from M. L. B. “a ‘record of sufficient completeness’ to permit proper [appellate] consideration of [her] claims.” Mayer, 404 U. S., at 198. P. 128.

@?
s. In Boddie v. Connecticut, 401 U. S. 371 (1971), we held that the State could not deny a divorce to a married couple based on their inability to pay approximately $60 in court costs. Crucial to our decision in Boddie was the fundamental interest at stake. “[G]iven the basic position of the marriage relationship in this society’s hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship,” we said, due process “prohibit[s] a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.” Id., at 374; see also Little v. Streater, 452 U. S. 1, 13–17 (1981) (State must pay for blood grouping tests sought by an indigent defendant to enable him to contest a paternity suit).

@?
The following year, in United States v. Kras, 409 U. S. 434 (1973), the Court clarified that a constitutional requirement to waive court fees in civil cases is the exception, not the general rule.

@?
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,” Boddie, 401 U. S., at 376, rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.

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Michael H. v. Gerald D.  491 U.S. 110 (1989)  (possibly local to California)

Held:
1. The § 621 presumption does not infringe upon the due process rights of a man wishing to establish his paternity of a child born to the wife of another man. Pp. 491 U. S. 118-130.

(a) Michael's contention that procedural due process requires that he be afforded an opportunity to demonstrate his paternity in an evidentiary hearing fundamentally misconceives the nature of § 621. Although phrased in terms of a presumption, § 621 expresses and implements a substantive rule of law declaring it to be generally irrelevant for paternity purposes whether a child conceived during, and born into, an existing marriage was begotten by someone other than the husband and had a prior relationship with him, based on the state legislature's determination, as a matter of overriding social policy, that the husband should be held responsible for the child and that the integrity and privacy of the family unit should not be impugned. Because Michael's complaint is that the statute categorically denies all men in his circumstances an opportunity to establish their paternity, his challenge is not accurately viewed as procedural. Pp. 491 U. S. 119-121.

(b) There is no merit to Michael's substantive due process claim that he has a constitutionally protected "liberty" interest in the parental relationship he has established with Victoria, and that protection of Gerald's and Carole's marital union is an insufficient state interest to support termination of that relationship. Michael has failed to meet his burden of proving that his claimed "liberty" interest is one so deeply imbedded within society's traditions as to be a fundamental right. Not only has he failed to demonstrate that the interest he seeks to vindicate has traditionally been accorded protection by society, but the common law presumption of legitimacy, and even modern statutory and decisional law, demonstrate that society has historically protected, and continues to protect, the marital family against the sort of claim Michael asserts. 491 U. S. 121-130.

2. The § 621 presumption does not infringe upon any constitutional right of a child to maintain a relationship with her natural father. Victoria's assertion that she has a due process right to maintain filial relationships with both Michael and Gerald is, at best, the obverse of Michael's claim and fails for the same reasons. Nor is there any merit to her claim that her equal protection rights have been violated because, unlike her mother and presumed father, she had no opportunity to rebut the presumption of her legitimacy, since the State's decision to treat her differently from her parents pursues the legitimate end of preventing the disruption of an otherwise peaceful union by the rational means of not allowing anyone but the husband or wife to contest legitimacy.


@113
Under California law, a child born to a married woman living with her husband is presumed to be a child of the marriage. Cal.Evid.Code Ann. § 621 (West Supp.1989). The presumption of legitimacy may be rebutted only by the husband or wife, and then only in limited circumstances. Ibid. The instant appeal presents the claim that this presumption infringes upon the due process rights of a man who wishes to establish his paternity of a child born to the wife of another man, and the claim that it infringes upon the constitutional right of the child to maintain a relationship with her natural father.

@125
We have found nothing in the older sources, nor in the older cases, addressing specifically the power of the natural father to assert parental rights over a child born into a woman's existing marriage with another man. Since it is Michael's burden to establish that such a power (at least where the natural father has established a relationship with the child) is so deeply embedded within our traditions as to be a fundamental right, the lack of evidence alone might defeat his case. But the evidence shows that, even in modern times -- when, as we have noted, the rigid protection of the marital family has in other respects been relaxed -- the ability of a person in Michael's position to claim paternity has not been generally acknowledged.

@131
Victoria claims in addition that her equal protection rights have been violated because, unlike her mother and presumed father, she had no opportunity to rebut the presumption of her legitimacy. We find this argument wholly without merit. We reject, at the outset, Victoria's suggestion that her equal protection challenge must be assessed under a standard of strict scrutiny because, in denying her the right to maintain a filial relationship with Michael, the State is discriminating against her on the basis of her illegitimacy. See Gomez v. Perez, 409 U. S. 535, 409 U. S. 538 (1973).
Illegitimacy is a legal construct, not a natural trait. Under California law, Victoria is not illegitimate, and she is treated in the same manner as all other legitimate children: she is entitled to maintain a filial relationship with her legal parents.

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Tuan Anh Nguyen v. INS 533 U.S. 53 (2001)

Held: Section 1409 is consistent with the equal protection guarantee embedded in the Fifth Amendment's Due Process Clause. Pp. 59-73.

(a) A child born abroad and out of wedlock acquires at birth the nationality status of a citizen mother who meets a specified residency requirement. § 1409(c). However, when the father is the citizen parent, inter alia, one of three affirmative steps must be taken before the child turns 18: legitimization, a declaration of paternity under oath by the father, or a court order of paternity. § 1409(a)(4). The failure to satisfy this section renders Nguyen ineligible for citizenship. Pp.59-60.

(b) A gender-based classification withstands equal protection scrutiny if it serves important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives. United States v. Virginia, 518 U. S. 515, 533. Congress' decision to impose different requirements on unmarried fathers and unmarried mothers is based on the significant difference between their respective relationships to the potential citizen at the timeof birth and is justified by two important governmental interests. Pp. 60-71.

(1) The first such interest is the importance of assuring that a biological parent-child relationship exists. The mother's relation is verifiable from the birth itself and is documented by the birth certificate or hospital records and the witnesses to the birth. However, a father need not be present at the birth, and his presence is not incontrovertible proof of fatherhood. See Lehr v. Robertson, 463 U. S. 248, 260, n. 16. Because fathers and mothers are not similarly situated with regard to proof of biological parenthood, the imposition of different rules for each is neither surprising nor troublesome from a constitutional perspective. Section 1409(a)(4)'s provision of three options is designed to ensure acceptable documentation of paternity. Petitioners argue that § 1409(a)(1)'s requirement that a father provide clear and convincing evidence of parentage is sufficient to achieve the end of establishing paternity, given the sophistication of modern DNA tests. However, that section does not mandate DNA testing. Moreover, the Constitution does not require that Congress elect one particular mechanism from among many possible methods of establishing paternity, and § 1409(a)(4) represents a reasonable legislative conclusion that the satisfaction of one of several alternatives will suffice to establish the father-child blood link required as a predicate to the child's acquisition of citizenship. Finally, even a facially neutral rule would sometimes require fathers to take additional affirmative steps which would not be required of mothers, whose names will be on the birth certificate as a result of their presence at the birth, and who will have the benefit of witnesses to the birth to call upon. Pp. 62-64.

(2) The second governmental interest furthered by § 1409(a)(4) is the determination to ensure that the child and citizen parent have some demonstrated opportunity to develop a relationship that consists of real, everyday ties providing a connection between child and citizen parent and, in turn, the United States. Such an opportunity inheres in the event of birth in the case of a citizen mother and her child, but does not result as a matter of biological inevitability in the case of an unwed father. He may not know that a child was conceived, and a mother may be unsure of the father's identity. One concern in this context has always been with young men on duty with the Armed Forces in foreign countries. Today, the ease of travel and willingness of Americans to visit foreign countries have resulted in numbers of trips abroad that must be of real concern when contemplating the prospect of mandating, contrary to Congress' wishes, citizenship by male parentage subject to no condition other than the father's residence in this country. Equal protection principles do not require Congress to ignore this reality. Section 1409 takes the unremarkable step of ensuring that the opportunity inherent in the event of birth as to the mother-child relationship exists between father and child before citizenship is conferred upon the latter. That interest's importance is too profound to be satisfied by a DNA test because scientific proof of biological paternity does not, by itself, ensure father-child contact during the child's minority. Congress is well within its authority in refusing, absent proof of an opportunity for a relationship to develop, to commit this country to embracing a child as a citizen. Contrary to petitioners' argument, § 1409 does not embody a gender-based stereotype. There is nothing irrational or improper in recognizing that at the moment of birth-a critical event in the statutory scheme and tradition of citizenship law-the mother's knowledge of the child and the fact of parenthood have been established in a way not guaranteed to the unwed father. Pp. 64-68.

(3) The means Congress chose substantially relate to its interest in facilitating a parent-child relationship. First, various statutory provisions, in addition to § 1409(a), require that some act linking a child to the United States occur before the child turns 18. Second, petitioners' argument that § 1409(a)(4) reflects a stereotype that women are more likely than men to actually establish the required relationship misconceives both the governmental interest's nature and the equal protection inquiry. As to the former, Congress could have chosen to advance the interest of ensuring a meaningful relationship in every case, but it enacted instead an easily administered scheme to promote the different but still substantial interest of ensuring an opportunity for that relationship to develop. Petitioners' argument confuses the equal protection inquiry's means and ends; § 1409(a)(4) should not be invalidated because Congress elected to advance an interest that is less demanding to satisfy than some alternative. Even if one conceives of Congress' real interest as the establishment of a meaningful relationship, it is almost axiomatic that a policy seeking to foster the opportunity for meaningful parent-child bonds to develop has a close and substantial bearing on the governmental interest in that bond's formation. Here, Congress' means are in substantial furtherance of an important governmental objective, and the fit between the means and that end is exceedingly persuasive. See Virginia, supra, at 533. Pp.68-70.

(c) Section 1409(a)(4) imposes a minimal obligation. Only the least onerous of its three options must be satisfied; and it can be satisfied on the day of birth, or the next day, or for the next 18 years. Section 1409(a), moreover, is not the sole means of attaining citizenship for the child, who can seek citizenship in his or her own right, rather than via reliance on parental ties. pp. 70-71.

(d) Because the statute satisfies the equal protection scrutiny applied to gender-based qualifications, this Court need not consider whether it can confer citizenship on terms other than those specified by Congress or assess the implications of statements in earlier cases regarding the wide deference afforded to Congress in exercising its immigration and naturalization power. Pp.71-73.

@59
The statute provides that the child is also a citizen if, before the birth, the citizen parent had been physically present in the United States for a total of five years, at least two of which were after the parent turned 14 years of age.
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Wyman v. James 400 U.S. 309 (1971)

Held: The home visitation provided for by New York law in connection with the AFDC program is a reasonable administrative tool, and does not violate any right guaranteed by the Fourth and Fourteenth Amendments. Pp. 400 U. S. 315-326.

(a) Home visitation, which is not forced or compelled, is not a search in the traditional criminal law context of the Fourth Amendment. Pp. 400 U. S. 317-318.

(b) Even assuming that the home visit has some of the characteristics of a traditional search, New York's program is reasonable, as it serves the paramount needs of the dependent child; enables the State to determine that the intended objects of its assistance benefit from its aid and that state funds are being properly used; helps attain parallel federal relief objectives; stresses privacy by not unnecessarily intruding on the beneficiary's rights in her home; provides essential information not obtainable through secondary sources; is conducted, not by a law enforcement officer, but by a caseworker; is not a criminal investigation; and (unlike the warrant procedure, which necessarily implies criminal conduct) comports with the objectives of welfare administration. Pp. 400 U. S. 318-324.

(c) The consequence of refusal to permit home visitation, which does not involve a search for violations, is not a criminal prosecution but the termination of relief benefits. Camara v. Municipal Court, 387 U. S. 523; See v. City of Seattle, 387 U. S. 541, distinguished. Pp. 400 U. S. 324-325.

@318-324
There are a number of factors that compel us to conclude that the home visit proposed for Mrs. James is not unreasonable:

1. The public's interest in this particular segment of the area of assistance to the unfortunate is protection and aid for the dependent child whose family requires such aid for that child. The focus is on the child, and, further, it is on the child who is dependent. There is no more worthy object of the public's concern. The dependent child's needs are paramount, and only with hesitancy would we relegate those needs, in the scale of comparative values, to a position secondary to what the mother claims as her rights.

2. The agency, with tax funds provided from federal as well as from state sources, is fulfilling a public trust. The State, working through its qualified welfare agency, has appropriate and paramount interest and concern in seeing and assuring that the intended and proper objects of that tax produced assistance are the ones who benefit from the aid it dispenses. Surely it is not unreasonable, in the Fourth Amendment sense or in any other sense of that term, that the State have at its command a gentle means, of limited extent and of practical and considerate application, of achieving that assurance.

3. One who dispenses purely private charity naturally has an interest in, and expects to know, how his charitable funds are utilized and put to work. The public, when it is the provider, rightly expects the same. It might well expect more, because of the trust aspect of public funds, and the recipient, as well as the caseworker, has not only an interest, but an obligation.

4. The emphasis of the New York statutes and regulations is upon the home, upon "close contact" with the beneficiary, upon restoring the aid recipient "to a condition of self-support," and upon the relief of his distress. The federal emphasis is no different. It is upon "assistance and rehabilitation," upon maintaining and strengthening family life, and upon "maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection. . . ." 42 U.S.C. § 601 (1964 ed., Supp. V); Dandridge v. Williams, 397 U. S. 471, 397 U. S. 479 (1970), and id. at 397 U. S. 510 (MARSHALL, J., dissenting). It requires cooperation from the state agency upon specified standards and in specified ways. And it is concerned about any possible exploitation of the child.

5. The home visit, it is true, is not required by federal statute or regulation. [Footnote 6] But it has been noted that the visit is "the heart of welfare administration"; that it affords "a personal, rehabilitative orientation, unlike that of most federal programs"; and that the "more pronounced service orientation" effected by Congress with the 1956 amendments to the Social Security Act "gave redoubled importance to the practice of home visiting." Note, Rehabilitation, Investigation and the Welfare Home Visit, 79 Yale L.J. 746, 748 (1970). The home visit is an established routine in States besides New York. [Footnote 7]

6. The means employed by the New York agency are significant. Mrs. Janes received written notice several days in advance of the intended home visit. [Footnote 8] The date was specified. Section 134-a of the New York Social Services Law, effective April 1, 1967, and set forth in n 2, supra, sets the tone. Privacy is emphasized. The applicant-recipient is made the primary source of information as to eligibility. Outside informational sources, other than public records, are to be consulted only with the beneficiary's consent. Forcible entry or entry under false pretenses or visitation outside working hours or snooping in the home are forbidden. HEW Handbook of Public Assistance Administration, pt. IV, §§ 2200(a) and 2300; 18 NYCRR §§ 351.1, 351.6, and 351.7. All this minimizes any "burden" upon the homeowner's right against unreasonable intrusion.

7. Mrs. James, in fact, on this record presents no specific complaint of any unreasonable intrusion of her home and nothing that supports an inference that the desired home visit had as its purpose the obtaining of information as to criminal activity. She complains of no proposed visitation at an awkward or retirement hour. She suggests no forcible entry. She refers to no snooping. She describes no impolite or reprehensible conduct of any kind. She alleges only, in general and nonspecific terms, that, on previous visits and, on information and belief, on visitation at the home of other aid recipients,

"questions concerning personal relationships, beliefs and behavior are raised and pressed which are unnecessary for a determination of continuing eligibility."

Paradoxically, this same complaint could be. made of a conference held elsewhere than in the home, and yet this is what is sought by Mrs. James. The same complaint could be made of the census taker's questions. See MR. JUSTICE MARSHALL's opinion, as United States Circuit Judge, in United States v. Rickenbacker, 309 F.2d 462 (CA2 1962), cert. denied, 371 U.S. 962. What Mrs. James appears to want from the agency that provides her and her infant son with the necessities for life is the right to receive those necessities upon her own informational terms, to utilize the Fourth Amendment as a wedge for imposing those terms, and to avoid questions of any kind. [Footnote 9]

8. We are not persuaded, as Mrs. James would have us be, that all information pertinent to the issue of eligibility can be obtained by the agency through an interview at a place other than the home, or, as the District Court majority suggested, by examining a lease or a birth certificate, or by periodic medical examinations, or by interviews with school personnel. 303 F.Supp. at 943. Although these secondary sources might be helpful, they would not always assure verification of actual residence or of actual physical presence in the home, which are requisites for AFDC benefits, [Footnote 10] or of impending medical needs. And, of course, little children, such as Maurice James, are not yet registered in school.

9. The visit is not one by police or uniformed authority. It is made by a caseworker of some training [Footnote 11] whose primary objective is, or should be, the welfare, not the prosecution, of the aid recipient for whom the worker has profound responsibility. As has already been stressed, the program concerns dependent children and the needy families of those children. It does not deal with crime or with the actual or suspected perpetrators of crime. The caseworker is not a sleuth, but rather, we trust, is a friend to one in need.

10. The home visit is not a criminal investigation, does not equate with a criminal investigation, and despite the announced fears of Mrs. James and those who would join her, is not in aid of any criminal proceeding. If the visitation serves to discourage misrepresentation or fraud, such a byproduct of that visit does not impress upon the visit itself a dominant criminal investigative aspect. And if the visit should, by chance, lead to the discovery of fraud and a criminal prosecution should follow, [Footnote 12] then, even assuming that the evidence discovered upon the home visitation is admissible, an issue upon which we express no opinion, that is a routine and expected fact of life and a consequence no greater than that which necessarily ensues upon any other discovery by a citizen of criminal conduct.

11. The warrant procedure which the plaintiff appears to claim to be so precious to her, even if civil in nature, is not without its seriously objectionable features in the welfare context. If a warrant could be obtained (the plaintiff affords us little help as to how it would be obtained), it presumably could be applied for ex parte, its execution would require no notice, it would justify entry by force, and its hours for execution [Footnote 13] would not be so limited as those prescribed for home visitation. The warrant necessarily would imply conduct either criminal or out of compliance with an asserted governing standard. Of course, the force behind the warrant argument, welcome to the one asserting it, is the fact that it would have to rest upon probable cause, and probable cause in the welfare context, as Mrs. James concedes, requires more than the mere need of the caseworker to see the child in the home and to have assurance that the child is there and is receiving the benefit of the aid that has been authorized for it. In this setting, the warrant argument is out of place.

It seems to us that the situation is akin to that where an Internal Revenue Service agent, in making a routine civil audit of a taxpayer's income tax return, asks that the taxpayer produce for the agent's review some proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If the taxpayer refuses, there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully within his "rights" in refusing to produce the proof, but, in maintaining and asserting those rights, a tax detriment results, and it is a detriment of the taxpayer's own making. So here, Mrs. James has the "right" to refuse the home visit, but a consequence in the form of cessation of aid, similar to the taxpayer's resultant additional tax, flows from that refusal. The choice is entirely hers, and nothing of constitutional magnitude is involved.

@324-325
Camara v. Municipal Court, 387 U. S. 523 (1967), and its companion case, See v. City of Seattle, 387 U. S. 541 (1967), both by a divided Court, are not inconsistent with our result here. Those cases concerned, respectively, a refusal of entry to city housing inspectors checking for a violation of a building's occupancy permit, and a refusal of entry to a fire department representative interested in compliance with a city's fire code. In each case, a majority of this Court held that the Fourth Amendment barred prosecution for refusal to permit the desired warrantless inspection. Frank v. Maryland, 359 U. S. 360 (1959), a case that reached an opposing result and that concerned a request by a health officer for entry in order to check the source of a rat infestation, was pro tanto overruled. Both Frank and Camara involved dwelling quarters. See had to do with a commercial warehouse.

But the facts of the three cases are significantly different from those before us. Each concerned a true search for violations. Frank was a criminal prosecution for the owner's refusal to permit entry. So, too, was See. Camara had to do with a writ of prohibition sought to prevent an already pending criminal prosecution. The community welfare aspects, of course, were highly important, but each case arose in a criminal context where a genuine search was denied and prosecution followed.

In contrast, Mrs. James is not being prosecuted for her refusal to permit the home visit and is not about to be so prosecuted. Her wishes in that respect are fully honored. We have not been told, and have not found, that her refusal is made a criminal act by any applicable New York or federal statute. The only consequence of her refusal is that the payment of benefits ceases. Important and serious as this is, the situation is no different than if she had exercised a similar negative choice initially and refrained from applying for AFDC benefits. If a statute made her refusal a criminal offense, and if this case were one concerning her prosecution under that statute, Camara and See would have conceivable pertinency.

@326
Our holding today does not mean, of course, that a termination of benefits upon refusal of a home visit is to be upheld against constitutional challenge under all conceivable circumstances. The early morning mass raid upon homes of welfare recipients is not unknown. See Parrish v. Civil Service Comm'n, 66 Cal.2d 260, 425 P.2d 223 (1967); Reich, Midnight Welfare Searches and the Social Security Act, 72 Yale L.J. 1347 (1963). But that is not this case. Facts of that kind present another case for another day.

We therefore conclude that the home visitation as structured by the New York statutes and regulations is a reasonable administrative tool; that it serves a valid and proper administrative purpose for the dispensation of the AFDC program; that it is not an unwarranted invasion of personal privacy; and that it violates no right guaranteed by the Fourth Amendment.
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CHAFIN v. CHAFIN 568 US ___ (2013)

Held:
 The return of a child to a foreign country pursuant to a Convention return order does not render an appeal of that order moot. Pp. 5–14.

(a) Article III restricts the power of federal courts to “Cases” and “Controversies,” and this “requirement subsists through all stages of [the] proceedings,” Lewis v. Continental Bank Corp., 494 U. S. 472,477. No case or controversy exists, and a suit becomes moot, “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome,” Already, LLC v. Nike, Inc., 568 U. S. ___, ___. But a case “becomes moot only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party,” Knox v. Service Employees, 567 U. S. ___, ___. As “long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot,” ibid. Pp. 5–6.

(b) Because the Chafins continue to vigorously contest the question  of where their daughter will be raised, this dispute is very much alive. This case does not address “a hypothetical state of facts,” Lewis, supra, at 477, and there continues to exist between the parties “that concrete adverseness which sharpens the presentation of issues,” Camreta v. Greene, 563 U. S. ___, ___. Pp. 6–11.

(1) Mr. Chafin seeks typical appellate relief: reversal of the District Court determination that E. C.’s habitual residence was Scotland and, upon reversal, an order that E. C. be returned to the United States. The question is whether such relief would be effectual. In arguing that this case is moot because the District Court has no authority to issue a re-return order either under the Convention or pursuant to its inherent equitable powers, Ms. Chafin confuses mootness with the merits. See, e.g., Powell v. McCormack, 395 U. S. 486, 500. Mr. Chafin’s claim for re-return cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction, and his prospects of success are therefore not pertinent to the mootness inquiry.
As to the effectiveness of any relief, even if Scotland were to ignore a re-return order, this case would not be moot. The U. S. courts continue to have personal jurisdiction over Ms. Chafin and may command her to take action under threat of sanctions. She could decide to comply with an order against her and return E. C. to the United States. Enforcement of the order may be uncertain if Ms. Chafin chooses to defy it, but such uncertainty does not typically render cases moot. Pp. 7–10.
(2) Mr. Chafin also seeks, if he prevails, vacatur of the District Court’s expense orders. That too is common relief on appeal, and the mootness inquiry comes down to its effectiveness. In contending that this case is moot due to Mr. Chafin’s failure to pursue an appeal of the expense orders, which were entered as separate judgments, Ms. Chafin again confuses mootness with the merits. Because there is authority for the proposition that failure to appeal such judgments separately does not preclude relief, it is for lower courts at later stages of the litigation to decide whether Mr. Chafin is in fact entitled to the relief he seeks. That relief would not be “ ‘fully satisfactory,’ ” but “even the availability of a ‘partial remedy’ is ‘sufficient to prevent [a] case from being moot,’ ” Calderon v. Moore, 518 U. S. 149, 150. Pp. 10–11.

(c) Manipulating constitutional doctrine and holding these cases moot is not necessary to achieve the ends of the Convention and ICARA, and may undermine the treaty’s goals and harm the children meant to be protected. If these cases were to become moot upon return, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal. Such routine stays would conflict with the Convention’s mandate of prompt return. Courts should instead apply traditional factors in considering whether to stay a return order, see, e.g., Nken v. Holder, 556 U. S. 418, 434, thus ensuring that each case will receive the individualized treatment necessary for appropriate  consideration of the child’s best interests. Finally, at both the district and appellate court level, courts should take steps to decide these cases as expeditiously as possible. Pp. 11–14.

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New York ex rel. Halvey v. Halvey 330 U.S. 610 (1947) (may be antiquated)

Held: the order of the New York court did not fail to give the Florida decree the full faith and credit required by Article IV, § 1 of the Constitution. Pp. 330 U. S. 612-616.

(a) Under Florida law, custody decrees of Florida courts ordinarily are not res judicata in Florida or elsewhere, except as to facts before the court at the time of judgment. Pp. 330 U. S. 612-613.

(b) The Florida court would have been empowered to modify the decree in the interests of the child and to grant the father the right of visitation, had he applied to it, rather than the New York court, and presented his version of the controversy for the first time in his application for modification
of the Florida decree. Pp. 330 U. S. 613-614.

(c) So far as the Full Faith and Credit Clause of the Constitution is concerned, what Florida can do in modifying the decree, New York also may do. Pp. 330 U. S. 614-615.

@614-615
The general rule is that this command requires the judgment of a sister State to be given full, not partial, credit in the the forum. See Davis v. Davis, 305 U. S. 32; Williams v. North Carolina, 317 U. S. 287. But a judgment has no constitutional claim to a more conclusive or final effect in the the forum than it has in the State where rendered. See Reynolds v. Stockton, 140 U. S. 254, 140 U. S. 264. If the court of the State which rendered the judgment had no jurisdiction over the person or the subject matter, the jurisdictional infirmity is not saved by the Full Faith and Credit Clause. See Thompson v. Whitman, 18 Wall. 457; Griffin v. Griffin, 327 U. S. 220. And if the amount payable under a decree -- as in the case of a judgment for alimony -- is discretionary with the court which rendered it, full faith and credit does not protect the judgment. Sistare v. Sistare, 218 U. S. 1, 218 U. S. 17. Whatever may be the authority of a State to undermine a judgment of a sister State on grounds not cognizable in the State where the judgment was rendered (cf. Williams v. North Carolina, 325 U. S. 226, 325 U. S. 230), it is clear that the the forum has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered.

In this case, the New York court, having the child and both parents before it, had a full hearing and determined that the welfare of the child and the interests of the father warranted a modification of the custody decree. It is not shown that the New York court, in modifying the Florida decree, exceeded the limits permitted under Florida law. There is therefore a failure of proof that the Florida decree received less credit in New York than it had in Florida.


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Palmore v. Sidoti, 466 U.S. 429 (1984)

The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother. The Constitution cannot control such prejudice, but neither can it tolerate it. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.