custody studies shared parenting research benefits of joint custody
THE CONSTITUTIONAL RIGHT TO TRAVEL
by DiAnn Lindquist, Esq. (Colorado) joint custody research constitutional moveaway relocation children divorce
The URL for this page is http://www.thelizlibrary.org/liz/relocation.html
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,
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.
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).
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.)
DiAnn Lindquist is with the law offices of Anne Whalen Gill.
(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).)
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.
FOR RESEARCH AND CITATIONS ON JOINT CUSTODY AND RELOCATION, SEE:
||||| LIZNOTES TABLE OF CONTENTS
||||| Child Abuse Links and Information
Misplaced Blame and Simplistic Solutions
Protecting Battered Parents and Their Children in the Family Court
"Friendly Parent" provisions
Judge Gerald W. Hardcastle on joint custody and judicial decisionmaking
Attachment 101 for Attorneys
Custody and Access: An NAWL Brief
The Case Against Joint Custody
Joint Custody -- the Road to Hell is Paved with Good Intentions
What the Experts Say
Myths and Reality
Understanding the Batterer in Visitation and Custody Disputes
Spousal Violence in Custody and Access Disputes
The Truth About Joint Custody
Friendly Parent Provisions
The Abuse of Custody
Custody Order or Disordered Custody?
The Psychological Effects of Relocation for Children of Divorce
Testimony Against a Presumption of Joint Custody
The Father's Rights movement
"Responsible Fatherhood" movement
"Parental Alienation" - Getting it Wrong in Child Custody Cases
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