joint custody studies shared parenting research benefits of joint custody
by DiAnn Lindquist, Esq.
joint custody research constitutional moveaway relocation children divorce

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A citizen's right to interstate travel has long been recognized as a fundamental right, grounded upon the Privileges and Immunities Clause of Article IV, Section 2, of the United States Constitution. Edwards v. People of State of California, 314 U.S. 160, 173, 62 S.Ct. 164 (1941).

This principle encompasses the right of individuals to "migrate, resettle, find a new job, and start a new life." Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct 1322, 1329, 22 L.Ed.2d 600 (1969).

Edwards, Shapiro, and their progeny were concerned with the constitutionality of state statutes designed to discourage indigent people from relocating to their state of choice.

The Supreme Court consistently held the statutes to be unconstitutional, reasoning,

"...[t]he nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land, uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." Id.

The Court also held that the right of travel is "...a virtually unconditional personal right, guaranteed by the Constitution to us all." Id. at 643, 89 S.Ct. at 1336.

For the same reasons that a state cannot prohibit a person from moving to a particular area, it also cannot prohibit a person from moving from a particular area.

Strict Scrutiny

Court action that places restrictions on a citizen's fundamental rights requires application of the strict scrutiny test. Jones v. Helms, 452 U.S. 412 (1981); U.S. v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778 (1938).

Under strict scrutiny, the state must show that it has a compelling purpose for denying the fundamental right and that the remedy chosen is narrowly tailored to meet the stated purpose. Shapiro, 394 U.S. at 634, 89 S.Ct. at 1331.

Requiring a citizen to live in a specific locale, thereby restricting his or her fundamental right of travel, must be based on compelling state concerns. Hodgson v. Minnesota, 497 U.S. 417 (1990).

Parents also have a fundamental liberty interest in the care, custody, and management of their natural children, and due process must be provided when the state interferes with that relationship. Santosky v. Kramer, 455 U.S. 745 (1982).

This argument successfully was used in the mother's brief in the Colorado Supreme Court relocation case of Spahmer v. Gullette, decided June 5, 2005 (Barry Seidenfeld, Esq. and Anne Whalen Gill, Esq., counsel.)
Also see, decided the same day, Ciesluk v. Ciesluk,

DiAnn Lindquist is with the law offices of Anne Whalen Gill.

Anne Whalen Gill, Esq.
510 Wilcox Street, Suite C
Castle Rock, CO 80104
(303) 713-9050

(Ms. Gill is a member of the Supreme Court Committee on Appellate Rules, the Executive Council of the Judiciary Section, the Appellate Practice Subcommittee, and the Bill of Rights Committee of the Colorado Bar Association. She has published several articles about appellate practice and is a frequent speaker at seminars about appellate practice. Ms. Gill co-authored the 1999 publication, Colorado Law and Appellate Practice with Judge Leonard Plank, and also is the author of "Organization of the Appellate Court System" in Colorado Appellate Handbook (2000); "Cross-Appeals" in Colorado Appellate Handbook (2000)' "The Record on Appeal" in Colorado Appellate Handbook (2000); and "Motion Practice Appellate Courts" in Colorado Appellate Handbook (2000).)

Idaho Supreme Court, 2009: Correct decision, wrong rationale in a relocation case, Allbright v. Allbright.

Attention trial courts: being a parent is not grounds for incarcerating free citizens within the confines of a geographic locale, no matter what your statutes say. Some lawyers apparently are confused by custody evaluator crap -- another reason to boot psychs from the court system.

A "child's best interests" is NOT a "compelling reason" to micromanage childrearing in the absence of serious neglect or imminent physical harm of a degree that would warrant institution of dependency proceedings, and it is NOT a "compelling reason" to restrict a parent's freedom.



||||| Child Abuse Links and Information

||||| Misplaced Blame and Simplistic Solutions
DC's Joint Custody Presumption, by Margaret Martin Barry

||||| Protecting Battered Parents and Their Children in the Family Court System
by Clare Dalton
, 37 Fam. & Conciliation Courts Rev. 273 (1999)

||||| "Friendly Parent" provisions
by Margaret Dore, Esq.

||||| Judge Gerald W. Hardcastle on joint custody and judicial decisionmaking
Family Law Quarterly, Spring 1998 (32:1)

||||| Attachment 101 for Attorneys
Implications for Infant Placement Decisions by Eleanor Willemsen and Kristen Marcel

||||| Custody and Access: An NAWL Brief
to the Special Joint Committee on Child Custody and Access, March 1998 (Canada)

||||| The Case Against Joint Custody
Ontario Women's Justice Network

||||| Joint Custody -- the Road to Hell is Paved with Good Intentions
by liz

||||| What the Experts Say
A Review of the Scholarly Research on Post-Divorce Parenting and Child Well-being.

||||| Myths and Reality
from the FREDA Centre for Research on Violence Against Women and Children

||||| Understanding the Batterer in Visitation and Custody Disputes
by R. Lundy Bancroft. 

||||| Spousal Violence in Custody and Access Disputes
Recommendations for Reform, Nicholas M.C. Bala et al.

||||| The Truth About Joint Custody
by Trish Wilson -- Don't call it "Shared Parenting."

||||| Friendly Parent Provisions
by Trish Wilson -- What's Wrong With Them

||||| The Abuse of Custody
an interview with attorney Ruth Lea Taylor

||||| Custody Order or Disordered Custody?
by Joan Braun -- Law student article with research cites published in BC Institute Against Family Violence Newsletter

||||| The Psychological Effects of Relocation for Children of Divorce
by Marion Gindes, Ph.D., AAML Journal, Vol. 15 (1998), pp. 119

||||| Testimony Against a Presumption of Joint Custody
Women's Law Project

||||| The Father's Rights movement
by liz

||||| The "Responsible Fatherhood" movement
by liz

||||| "Parental Alienation" - Getting it Wrong in Child Custody Cases
by Professor Carol S. Bruch


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