Due Process Rights of Non-custodial Parents

What liberty interest, if any, do non-custodial parents have in the care, upbringing, and education of their children? Today a 2-1 panel handed down an interesting decision interpreting - and perhaps narrowing - the due process rights of non-custodial parents. Crowley v. McKinney, No. 02-3741 (7th Cir. Mar. 11, 2005).

In Crowley, a non-custodial parent sued school officials for, inter alia, not providing him access to his childrens' educational records. He sued under the parents' rights line of cases (Meyer, Pierce, Yoder), arguing that the schools' denying him access to his childrens' school records and refusing to allow parent-teacher conferences violated his substantive due process right to raise his children. In dismissing the father's claim, the panel distinguished the Meyer/Pierce/Yoder line of cases:

[T]hose cases are remote from the present case in two pertinent respects. They are about a state’s right to deny, in effect, the option of private education, a denial that is a greater intrusion on parental control of their children than limiting parents’ involvement in the activities of the public school that their children attend. And they concern the rights of parents acting together rather than about the rights retained by a divorced parent whose ex-spouse has sole custody of the children and has not joined in the noncustodial parent’s claim. In both respects the parental claim in this case is weaker. It is weaker because the challenge is to only one parent’s control, the other’s remaining unimpaired. It is also weaker because the state interest is stronger. Nebraska’s interest in forbidding private schools to teach foreign languages was tenuous to the point of weirdness, while Oregon’s project of forcing all children to attend public schools implied a hostility to private education that had no footing in American traditions or educational policy. Quite apart from parental interests, the statist character and conformist consequences of giving the state a monopoly of education sapped Oregon’s policy of constitutional weight.

Slip op. at 5. Moreover, the panel suggested that the rights, if any, of non-custodial parents are more analagous to to those of grandparents:

The distinction is illuminated by cases that discuss other aspects of parents’ constitutional rights. Troxel v. Granville, 530 U.S. 57, 65-73 (2000), invalidated a state law that conferred broad discretion on the state’s courts to override a custodial parent’s wish to limit (not eliminate) visits by her children’s grandparents. The case has a dual significance for the present case. First, it recognizes that one aspect of the parental right is a right against other relatives—a right to prevent a tug of war over the children—in this case Mrs. Crowley’s right to decide what school the children shall attend. Second, it suggests the strength that the parental interest must attain to achieve constitutional status. At stake in Troxel was Mrs. Granville’s control of her children, contested by the grandparents and the court that sided with them. At stake in Santosky v. Kramer, 455 U.S. 745 (1982), another case in which a state law was invalidated as an infringement of parental liberty, was the parental right itself. See also Stanley v. Illinois, 405 U.S. 645, 646-52 (1972). At stake in the present case is the slighter interest of Mr. Crowley in micromanaging his children’s education at the school properly chosen for them.

Id. at *10. Thus, the panel held that: [W]e greatly doubt that a noncustodial divorced parent has a federal constitutional right to participate in his children’s education at the level of detail claimed by the plaintiff." Id.

Judge Wood dissented:

This case is about a father’s constitutional right to participate meaningfully in the upbringing of his children. The question, as I see it, is whether the state (in this case through the agency of a local school district and its principal) may effectively terminate a noncustodial father’s parental rights, through measures that deprive him altogether from the most important activity in which children under the age of eighteen engage: their education. The majority sees no federal constitutional dimension in the deprivations that the school district has imposed upon Daniel Crowley, notwithstanding the existence of Supreme Court cases directly recognizing these kinds of parental rights and notwithstanding the fact that its assumptions about the degree to which his parental rights have been circumscribed by virtue of his divorce decree are exaggerated at best, mistaken at worst. Unless we are to create a new exception to cases brought under 42 U.S.C. § 1983 for actions like this that conceivably could be addressed by state family law courts— an action that I believe to be beyond this court’s authority, even if the Supreme Court might choose to take this step some day—Crowley is entitled to proceed on his liberty claims. To the extent that the majority opinion holds otherwise, I dissent. I concur in the majority’s conclusion that Crowley has stated an equal protection claim and a First Amendment claim that must be reinstated, along with his supplemental state claims.

Id. at *14.

Crowley raises several fascinating issues, including standing after Newdow. If a custodial parent demands that a non-custodial parent stay out of his child's life, what effect, if any, would that have on dad's ability to sue for violations of hisliberty interest in raising his children? Remember, here, Mr. Crowley was not suing because he disagreed with the school's curriculum. Rather, he sued because the school was not providing him information he needed to care for and raise his child. Also, do the parental rights trio (Meyer, Pierce, Yoder) protect a non-custodial parent's liberty interest? Is a non-custodial parent similar to a grandparent, and thus, under Troxel, can be told - absent a divorce agreement to the contrary - to leave the children's upbringing to the custodial parent?