Amicus Curiae Brief — E.S.H. v. K.D.

MOTION FILED

V SEP - 9 2010 (2)

No. 10-204

Jn the

Supreme Court of the Anited States

.9.H.,

Petitioner,

K.D.ANDS.L.C..

Respondents.

On Petition for Writ of Certiorari

to the Superior Court of Pennsylvania

MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE

AND BRIEF OF AMICI CURIAE CENTER FOR ARIZONA

POLICY, CITIZENS FOR COMMUNITY VALUES, CORNERSTONE

ACTION, CORNERSTONE FAMILY COUNCIL, FAMILY ACTION OF

TENNESSEE, FAMILY FOUNDATION, INDIANA FAMILY

INSTITUTE, GEORGIA FAMILY COUNCIL, LOUISIANA FAMILY

FORUM ACTION, MASSACHUSETTS FAMILY INSTITUTE,

MINNESOTA FAMILY COUNCIL, NEW JERSEY FAMILY

POLICY COUNCIL, NORTH CAROLINA FAMILY POLICY

COUNCIL, OKLAHOMA FAMILY POLICY COUNCIL,

PENNSYLVANIA FAMILY INSTITUTE, AND WISCONSIN

FAMILY ACTION IN SUPPORT OF PETITIONER

L. THEODORE HopPE, JR. RANDALL L. WENGER

Hoppe & Martin, LLP INDEPENDENCE LAW CENTER

423 McFaruan Roan 23 NORTH FRONT STREET

KENNETT SQuARE, PA 19348 SECOND FLOOR

THOPPE@HOPPEMARTIN.COM HARRISBURG, PA 17101

(610) 444-2001 (717) 657-4990

Attorneys for Amici Curiae

Becker Gallagher + Cincinnati, OH + Washington, D.C. - 800.890.5001

MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE

On August 16, 2010, amici curiae, Center for

Arizona Policy, Citizens for Community Values,

Cornerstone .Action, Cornerstone Family Council,

Family Action of Tennessee, Family Foundation,

Indiana Family Institute, Georgia Family Council,

Louisiana Family Forum Action, Massachusetts

Family Institute, Minnesota Family Council, New

Jersey Family Policy Council, North Carolina

Family Policy Council, Oklahoma Family Policy

Council, Pennsylvania Family Institute, and

Wisconsin Family Action, as required by Sup. Ct.

R. 37.2(a), notified both Petitioner’s counsel and

Respondents’ counsel of its intent to file this brief

amict curiae. Petitioner’s counsel consented to this

filing, but Respondents’ counsel did _ not.

Consequently, amici move this Court, pursuant to

Sup. Ct. R. 37.2(b), for leave to file this brief of

amict curiae.

Amici, as described below, are not-for-profit

organizations that seek to benefit families and

children through public policies favorable to the

family. They are concerned about the effect on

families of caselaw that allows the parental rights

of fit, natural parents to be divested by third

parties since this undermines a fundamental

building block of our society. Numerous of the

amict organizations produce reports and regularly

advocate before state and local governments

regarding policies affecting the family.

Amici request leave to file this brief to

communicate their concern that the decision of

Pennsylvania's courts has created a dangerous

departure from our history of constitutionally

protected parental rights. Given the work of amici

and their perspective from _particularized

experience advocating for families and children,

this Court should grant leave to file this brief of

amici curiae

Respectfully submitted

RANDALL L. WENGER

Counsel of Record

Independence Law Center

23 North Front Street, Second Flos

Harrisburg, PA 17101]

rwenger@indlawcenter.org

(717) 657-4990

L,. THEODORE HOPPE, JR

Hoppe & Martin, LLP

423 McFarlan Road

Kennett Square, PA 19348

thoppe@hoppemartin.com

(610) 444-2001

TABLE OF CONTENTS

ABLE OF AUTHORITIE:

INTEREST OF AMICI

SUMMARY OF ARGUMED

AR

GUMENT

it is a violation of a fit, natural parent's well

established, constitutionally protected

fundamental rights to have those right:

divested in favor of a legal stranger

Giving custody to legal strangers threaten

societal stability by undermining

;

foundational pillar of society—the parent

child relationship

Children’s interests are best served when

}

third party interference is minimize

TABLE OF AUTHORITIES

( ASES

Hoff UD) Berg,

595 N.W.2d 285 (N.D. 1999) I

In re Custody of O’Rourke,

514 N.E.2d 6 (Ill. App. Ct. 1987) 20

In re J.P...

648 P.2d 1364 (Utah 1982)

In re Marriage of Santa Cruz,

527 N.E.2d 131 (Ill. App. Ct. 1988)

)A.L. vu. BLP.H.,

682 A.2d 1314 (Pa. Super. 1996)

Johnson v. Hunter,

447 N.W.2d 871 (Minn. 1989)

K.D. uv. E.S.H.,

Q9() A.2d 57 (Pa super ZU009)

Lassiter v. Dept of Social Services

452 U.S. 18 (1981) 10

Meyer v. Nebraska,

262 U.S. 390 (1923)

M.L.B. v. S.L.d.,

119 U.S. 102 (1996)

Patko | (Lonnecticul

302 U.S. 319 19

Parham v. d. kt

> ’ pf «*

Pierce t oociely of Sister

"268 US. 510 (192!

lanned Parenthood v. Ca

505 U.S. 883 (1992)

‘Ou ledge v. United Stat

RR Hupp 561 (DD. |

r_7mice t Massachusett

121 U.S. 158 (1944

Wurlloin v. Walcott

134 US. 246 (19

antosky v. Kramer

mith v. Organizattor

or Equality & Reform

131 U.S. 816 (119%

TLYCL@T I Massa ALuSE Al

91 U.S. 97 (1934

inley vu. /llinol

105 | S 645 ;

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Porn iy yr) ‘ J ‘a,

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ane ,\Oranan Latijor ep

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isttation Statute: or the We lfare oF tire hild

Lourlt (Jpened Door LO Legall irute rhe re j

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Parental Autonon VV flere Ll? _LOl Lt

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amtuly 1utonomy, 1) lhrigon

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) ON H

INTEREST OF AMICI

Amici are numerous tax-exempt

organizations with memberships in various states

that share a common concern over policies that

impact the family. In_ particular, these

organizations recognize that the bond between

parent and child is essential to our society and is

undermined when fit parents are divested of their

parental rights. They wish to emphasize that our

laws should uphold, as they have historically done,

the fundamental right to parent one’s children.

Many of the amici regularly advocate in state and

local government for policies that impact the

family. Their collective work has included policy

reports, education, testimony before governmental

bodies, and litigation. Amici: submit this brief in

support of Petitioner, E.S.H.

1 Pursuant to Rule 37.6 of the Rules of this Court, amici state

that no counsel for a party has authored this brief in whole or

part, and that no person or entity, other than one of the

amici, its members, or its counsel, has made a monetary

contribution to the preparation or submission of this brief.

Counsel of record for all parties received notice at least ten

days prior to the due date of amici’s intention to file this

brief. Petitioner's counsel consented to this filing, but

Respondents’ counsel did not

SUMMARY OF ARGUMENT

The U.S. Supreme Court must grant

certiorari and reverse the judgment of the

Pennsylvania Superior Court because that court’s

decision directly conflicts with precedent from this

Court that recognizes the fundamental right to the

care and custody of one’s child. Despite this Court’s

precedent and the rights inherent in the U-S.

Constitution, an involved and loving father lost his

fundamental right to the care and custody of his

child to a legal stranger. This was a direct result of

Pennsylvania courts establishing a new “flexible”

standard for determining in loco parentis status

that is “dependent on the facts of the case.” This

“standard” is no standard at all and lacks any

protection for fit, natural parents to prevent their

parental rights from being divested by third

parties. Under the new “standard” established by

Pennsylvania courts, in loco parentis status can be

established by any adult that has provided care for

a child. This is a clear violation of Troxel uv.

Granville, 530 U.S. 57 (2000).

Not one natural parent is safe from

potentially having their fundamental nights

surrendered to a third party. Allowing

fundamental rights to be violated in this way will

undermine the bond between parents and their

children and lead to a breakdown of family, which

is an indispensable building block of society.

Parental nghts constitute a zero-sum game—if

primary custody is given to a new party, then the

existing parent’s rights must necessarily be

divested. This is more than an issue affecting the

rights of parents, because children’s interests are

best served when they are in the custody of their

natural parents, when there is certainty in this

arrangement, and when third party interference is

minimized. For these reasons, certiorari should be

eranted to prevent Pennsylvania’s new in loco

parentts standard from undermining __ the

constitutional rights of fit, natural parents.

ARGUMENT

It is a violation of a fit, natural parent’s

well established, constitutionally

protected fundamental rights to have

those rights divested in favor of a legal

stranger.

Eric and Karen Harner divorced when their

daughter, O.H., was three years old. Primary

custody was awarded to the Mother although both

parents remained active and involved in O.H.’s life.

Mr. Harner saw O.H. on a weekly basis. The

Mother began to cohabitate with Kent Deeter, and

they eventually married. Shortly thereafter, the

Mother passed away.

Mr. Deeter sought and was awarded primary

custody against the wishes of Mr. Harner, the

natural father. Mr. Harner has always’ been

involved in O.H.’s life and never consented to Mr.

Deeter assuming parental duties. Mr. Harner was

obviously in no position to put a stop to the

remarriage of O.H.’s mother or to prevent the

inevitable role Mr. Deeter would play in O.H.’s life.

Nevertheless, Mr. Harner’s fundamental right to

the care and custody of his daughter must trump

the secondary interests of a legal stranger. The

present, bizarre outcome, where a fit, natural

parent was awarded only partial custody of his

daughter while a legal stranger was awarded

primary physical custody, is aé_= result of

Pennsylvania's new in loco parentis standard that

undermines the fundamental rights of natural

parents while recognizing any and every competing

interest in the child from third parties.

In its decision affirming the grant of custody

to Mr. Deeter, the Pennsylvania Superior Court

held that the presumption that a child’s_ best

interest is served by maintaining family autonomy

“must give way where the child has established

strong psychological bonds with a person who,

although not a biological parent, has lived with the

child and provided care, nurture, and affection,

assuming in the child’s eyes a stature like that of a

parent.” K.D. v. E.S.H., 990 A.2d 57 (Pa. Super.

2009) (table) (text at Petitioner's Appendix, 8a)

(quoting J.A.L. v. E.P.H., 682 A.2d 1314, 1319-1320

(Pa. Super. 1996)). The Court went on to hold that

this standard is “flexible and dependent on the

particular facts of the case”. Jd. at Qa.

Astoundingly, there is no requirement that a

parent be unfit before their rights are divested.

This type of standardless divestiture of parental

rights is in direct conflict with the fundamental

right to the care and custody of one’s child.

The alarming effect of this decision is not

limited to situations where there has been a death

in the family. Under Pennsylvania’s caselaw, there

is no limit to who may be deemed a parent and

given primary custody. Mr. Deeter would have still

been eligible for zn loco parentis status if he and

the Mother were merely cohabitating and never

married. Moreover, if Mr. Deeter remarries, his

new spouse could be eligible for parental rights

under this standard. In fact, this standard would

6

have allowed Mr. Deeter to seek custody against

the Mother.

In Pennsylvania, not one fit, natural parent

is now immune from a potentially limitless number

of claims by third parties. Any law, whether

caselaw or statutory, divesting natural parents’

rights must have standards so that’ those

fundamental rights are not undermined. More

importantly, any standard governing custody must

start with the presumption that a fit, natural

parent's right to custody will not be trumped by a

third party. Any other standard serves to

undermine this’ well-established fundamental

right.

The vague standard created by the

Pennsylvania courts is a violation of Mr. Harner’s

fundamental right to the care and custody of his

child, which has been recognized by the Supreme

Court time and again. Most recently in Troxel, this

Court affirmed the constitutional right of a parent

to raise their child. The Court stated:

[I]n Meyer v. Nebraska, 262 U.S. 390,

399, 401, 43 S.Ct. 625, 67 L.Ed. 1042

(1923), we held that the “lberty”

protected by the Due Process Clause

includes the right of parents to

“establish a home and bring up

children” and “to control the education

of their own...” We returned to the

subject in Prince v. Massachusetts,

321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.

645 (1944), and again confirmed that

~]

there is a constitutional dimension to

the right of parents to direct the

upbringing of their children. "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.” J/d., at 166, 64

S.Ct. 438.

Troxel, 530 U.S. at 66.

As highlighted above, parents have the right

to direct the upbringing of their children, control

their education, and prepare them for _life’s

obligations. Indeed, the home is the foundation of

democracy for it is there that children begin to

formulate ideas about who they are, how they

relate to others, and how to solve problems. Lynn

D. Wardle, Relationships Between Family and

Government, 31 CAL. W. INTL L.J. 1, 4 (2000)

“Truly, ‘[t]he family is the very seedbed of

democracy. Home is the place where we get our

first ideas about [ourselves], our attitudes toward

other people, and our habits of approaching and

solving problems.” (alterations in original)). By

allowing an individual such as Mr. Deeter to be

treated as a parent and to subsequently acquire

primary custody, Pennsylvania has divested Mr.

Harner of his fundamental rights in the absence of

a compelling governmental interest. Mr. Deeter is

now able to make decisions concerning the child’s

medical care, religious upbringing, and moral

teachings. If Mr. Deeter begins to cohabitate or

marries and then dies, his new wife similarly

stands to make decisions regarding O.H.’s

upbringing. If they later separate, then under the

court's standard, the new wife would be able to

seek custody of the child thereby further

undermining Mr. Harner’s parental rights.

The Supreme Court has recognized that the

fundamental right of parents to the custody, care,

and nurture of their child is a right that needs

freedom from interference. As the Supreme Court

noted in M.L.B. v. S.L.J, “few consequences of

judicial action are so grave as the severance of

natural family ties.” 519 U.S. 102, 119 (1996)

(internal citations omitted) (emphasis added). As

observed in the long line of cases cited in Troxel,

the fundamental right of a natural parent to

parental autonomy is well-established. The Court

recognized a fundamental right of a fit, natural

parent “to make decisions concerning the care,

custody, and control of their children.” Troxel, 530

U.S. at 72. This interest is entitled to heightened

protection from interference by third parties. Id.

The Court stated:

In subsequent cases also, we

have recognized the fundamental

right of parents to make decisions

concerning the care, custody, and

control of their children. See, e.g.,

Stanley v. Illinois, 405 U.S. 645, 651,

92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)

(“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 ” (citation

omitted)); ...Parham v. J. R., 442 U.S

584, 602, 99 S.Ct. 2493, 61 L.Ed.2d

101 (1979) (‘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”)

Troxel, 530 U.S. at 66.

An overarching theme of Troxel is that legal

parents enjoy the right to determine who else

should be allowed to interact with their child

oecause interaction with others will influence the

moral development of a child. See Gary Spitko, The

Constitutional Function of Biological Paternity:

Evidence of the Biological Mother’s Consent to the

Biological Co-parenting of Her Child, 48 ArRIz. L.

REV. 97, 111 (2006) (citing Troxel, 530 U.S. at 72

for the proposition that legal parents have the

fundamental right to interact with and influence

the moral development of their child); Diane L.

Abraham, California’s Stepparent Visitation

Statute: For the Welfare of the Child, or a Court-

Opened Door to Legally Interfere with Parental

Autonomy: Where are the Constitutional

Safeguards?, 7 S. CAL. REV. L. & WOMEN’S STUD.

125, 151 (“Not only is parenting a fundamental

10

liberty interest protected against unwarranted

state intrusion (warranted by instances of abuse,

neglect or other unfitness of the natural parent),

but an attempt to judicially enforce visitation

rights by third parties would divide and hamper

proper parental authority. Visitation by a

nonparent against a natural parent's objection

intrudes on parental authority and impression.”).

This fundamental right also necessarily gives the

“constitutional” or “legal” parent a right to decide

whether a legal stranger can become a second

parent to the child. Spitko, supra at 111.

The Supreme Court also noted in Troxel that

“the parental right stems from the liberty protected

by the Due Process Clause of the Fourteenth

Amendment.” Troxel, 530 U.S. at 74. Furthermore,

in Lassiter v. Dep’t of Social Services, 452 U.S. 18,

27 (1981), it was stated that it is “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.” In M.L.B. v. S.L.J., the Supreme Court

noted that “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.” 519

U.S. 102, 119. See also Santosky v. Kramer, 455

U.S. 745, 754 (1982) (“When the State moves to

destroy weakened familial bonds, it must provide

the parents with fundamentally fair procedures’);

Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (the

primary role ol parents in the upbringing of then

children is now established beyond debate as an

enduring American tradition); Pierce v. Society of

Sisters, 268 U.S. 510, 535 (1925) (parents have a

right coupled with a duty to the freedom to raise

their children); Meyer v. Nebraska, 262 U.S. 390

401 (1923) (the Due Process right of parents t

“bring up” their children is fundamental)

The pupreme Court has also observ:

The Due Process Clause specially

protects those fundamental rights and

libertie: which are, objectively

“deeply rooted in this Nation’s history

and tradition,’ id., at 503 (plurality

opinion); Snyder v. Massachusetts, 29]

U.S. 97, 105 (1934) (so rooted in the

traditions and conscience of our peopl

as to be ranked as fundamental”). and

‘Implicit in the concept of ordered

liberty, such that “neither liberty nor

justice would exist if they wer

sacrificed,” Palko v. Connecticut, 30

1S. 319. 325, 326 (1937)

Washington v. Glucksberg, 521

(1997)

‘The Oupreme Court na recognizea

substantive protections under the Fourteenth

Amendment granting parental autonomy in raising

children. It necessarily follows that parents must

have physical custody of their children to enjoy thi

benefit of those rights. This Court has noted that

“the child is not the mere creature o! the State

erTrce ty ' I ) rarentali a nNomMmyY a ]

mportance in western society 1} a longstandin

tradition that is deeply rooted in our society. See /?

re J.P., 648 P.2d 1364, 1373-76 (Utah 1982) (“Thi

integrity of the family and the parents’ inherent

right and authority to rear their own children hav:

been recognized as fundamental axioms of Ang!

American culture, presupposed by all our socia

political, and legal institution This parent

right transcends all property and economic right

This recognition of the due proce! and retained

rights of parents promotes values essential to tl

preservation of human freedom and dignity and |

the perpetuation of our democrat ocrety ). it

ilso noted in 7roxel that “the interest of parent

the care. CU tody. and control of ther childre T)

perhaps the oldest of the fundamental libert

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western civilization

Wisconsin v. Yoder, 406 U., Ag

92 S.Ct. 1526, 32 L.Ed.2d 15 (197

he history and culture of Western

ivilization reflect a strong tradition of!

parental concern for the nurture and

upbringing of their children. Thi

primary role of the parents in th

upbringing of their children |

established beyond debate a

enduring American tradition

Santosky v. Kramer, 455 U.S. 74

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Certainly there are situations where a

parent is unfit and divesting that parent's rights

appropriately survives strict scrutiny. See e.g.

Santosky, 455 U.S. at 760 (stating that “until the

State proves parental unfitness, the child and his

parents share a vital interest in preventing

erroneous termination of their natural

relationship”) (emphasis added). However, absent a

showing of a compelling governmental interest

through lack of fitness, parental autonomy must be

protected to preserve the stability of society and

promote the ability of the parent to raise and

socialize their child without interference. In the

instant case, Mr. Deeter’s desire for connection

with O.H. does not rise to a compelling state

interest. Certainly Mr. Harner’s fundamental right

to the care and custody of his natural child, whose

life he has always been involved in, should have

greater weight than the claim of a legal stranger.

The illogical balancing act that puts the rights of a

legal stranger ahead of a natural parent cannot be

reconciled with Mr. Harner’s fundamental rights

and certiorari must be granted

II. Giving custody to legal strangers

threatens societal stability by

undermining a foundational pillar of

society—the parent-child relationship.

Granting custody to a third party necessarily

requires divesting a natural parent of some level of

custody. Many parents will not be able to

effectively prevent third parties from assuming a

parenting role in the child’s life—such as here after

a divorce occurred. This will lead to the

16

deterioration of family bonds and will blunt the

ability of any single parental figure to model and

inculcate those cultural values necessary to be

transmitted to the next generation. Exposure to

more voices makes any given voice less strong. Our

society depends upon parents inculcating values on

their children. This aspect of our established social

order is undermined when there are a multitude of

voices rather than a_ unified parental voice

influencing the child. “Precisely because

childrearing means forming the values, interests,

ideas, and religious beliefs of the next generation,

we should expect American law to insist, as the

Supreme Court has, that the state cannot enter the

domain of family life.” Martin Guggenheim, What’s

Wrong with Children’s Rights 25 n.91 (2005). See

also Planned Parenthood v. Casey, 505 U.S. 833,

926-27 (1992) (Blackmun, J., concurring in part,

concurring in the judgment in part, and dissenting

in part) (observing that the Supreme Court has

held that “the fundamental right of privacy

protects citizens against governmental intrusion in

such intimate family matters as... childrearing’).

Parental decisions to instill values in children and

to expose them to religious training are judgments

that “the state can neither supply nor hinder.”

Guggenheim, 25 n9] (quoting Prince

Massachusetts, 321 U.S. 158, 166 (1944))

Under Pennsylvania law, since in _ loco

parentis status is not based on unfitness or even

consent, there is an open door for unjustified

interference into various parent-child relationships

in the state. In Smith v. Organization of Foster

L/

Families for Equality & Reform, 431 U.S. 816, 863

(1977) (Stewart, J., concurring), Justice Stewart

stated that if “a State were to attempt to force the

breakup of a natural family, over the objections of

the parents and their children, without some

showing of unfitness and for the sole reason that to

do so was thought to be in the children’s best

interest, I should have little doubt that the State

would have intruded impermissibly on ‘the private

realm of family life which the state cannot enter.”

Our culture is defined by the principle that

parents take responsibility for their children and

that they will act in the best interests of their

children. See Troxel, 530 U.S. at 68 (explaining

there 1s a presumption that fit parents act in the

best interests of their children). Parenting is

society's primary means of socializing children, and

without parental security from outside demands,

the values taught through the parent-child

relationship will weaken. See Eric G. Andersen,

Children, Parents, and WNon-Parents: Protected

Interests and Legal Standards, 1998 BYU L. REV.

935, 946 (1998) (explaining that the moral and

cultural values taught through family will

deteriorate if the family is subject to numerous

outside demands)

furthermore, we should’ respect the

fundamental right to the care and custody of one’s

child by requiring a showing of harm before

embarking on the vague “best interests” analysis.

See Elizabeth Weiss, Nonparent Visitation Rights

v. Family Autonomy: An Abridgment of Parents’

Constitutional Rights? 10 SETON HALL CONST. L.d

1085, 1131 (2000) (noting that “by requiring an

initial showing of harm or parental unfitness

before the best interests standard is_ evoked,

parents’ childrearing decisions will be subject to

minimal judicial second-guessing and the family

autonomy protected by the Constitution will retain

its intended integrity’). The ability for the natural

parent and child to bond is contingent upon

upholding the parents’ fundamental right to the

care and custody over their child.

Not only does the fit, natural parent have a

fundamental right to the care and custody of their

child, but it has also been recognized that children

have a reciprocal constitutionally protected right in

the establishment and _ continuation of the

relationship with their natural parents, without

interference. A child is entitled to constitutional

protection from intrusion into the child-parent

relationship. See Troxel, 530 U.S. at 66 (“We have

recognized on numerous occasions that the

relationship between parent and _ child is

constitutionally protected”) (citing Quzulloin uv.

Walcott, 434 U.S. 246, 255 (1978)); Santosky, 455

U.S. at 760 (“until the State proves parental

unfitness, the child and his parents share a vital

interest in preventing erroneous termination of

their natural relationship’) (emphasis added);

Uhing v. Uhing, 488 N.W.2d 366, 374-75 (Neb.

1992) (The Constitution “protects not only the

parent’s right to the companionship, care, custody,

and management of his or her child, but also

protects the child’s reciprocal right to be raised and

nurtured by a biological or adoptive parent”)

L9

If the parent-child relationship is interfered

with, this can only be constitutionally justified with

a showing of a compelling state interest, such as

likelihood of harm to the child through parental

unfitness. See David D. Meyer, What

Constitutional Law Can Learn from the ALI

Principles of Family Dissolution, 2001 BYU L

REV. 1075 (2001) (supporting the proposition that a

compelling interest often equals a showing that

substantial harm has or will occur)

The Pennsylvania standard undermines a

stable relationship for both the parent and the

child. It is beyond comprehension that in this case

that the fit, natural parent was only awarded time

with his daughter every other weekend and

holidays while a third party, Mr. Deeter, was

awarded primary physical custody and gets to raise

Mr. Harner’s child. Although Mr. Deeter, who was

married to the child’s mother for 14 months, has

played some role in the child’s life, it would be an

act of social reengineering to suggest that he

played a more important role than her natural

father, who has always been involved in O.H.’s life

To a significant extent, custody rights are a zero-

sum game—if primary rights are given to one

party, then the other party’s rights are divested.

See Janet Weinstein, And Never the Twain Shall

Meet: The Best Interests of Children and the

Adversary System, 52 U. MIAMI L. REV. 79, 87

(1997) (explaining that a legal dispute over a child

is a “zero-sum game’ and the parent who wins

considers himself a “victor in war” while the child

may be the loser). Due to the fact that the

relationship between natural parent and child

20

forms the foundation of our society, the primary

custody rights of a fit, natural parent should not be

undermined at the expense of a legal stranger’s

secondary interest. We must preserve the liberty of

our citizens to have a child and know that as long

as they remain involved, they will always have a

right to parent that child that cannot be limited

except by the other natural or adoptive parent.

While in loco parentis status can be useful

and important in certain circumstances, any

statute or common law doctrine must be secondary

to the fundamental, constitutionally protected right

to parent and that such a status should not be

conferred over the objection of a fit, natural parent.

Other courts have viewed in loco parentis narrowly

because they recognize that the fundamental rights

of parental autonomy are worth preserving. See

e.g., Powledge v. United States, 88 F. Supp. 561,

563 (D. Ga. 1950) (explaining that for a statute

defining in loco parentis,- it is likely that by not

opening it up to all categories of caretakers

“Congress expressed its intention to keep thfe]

class of beneficiaries in well defined limits.”); Jn re

Marriage of Santa Cruz, 527 N.E.2d 131, 139 (Il.

App. Ct. 1988) (the court refused to grant a

maternal grandmother standing to request custody

where there was insufficient evidence that child’s

mother had voluntarily relinquished physical

custody even though the mother had packed her

things and left the child with the grandparent); Jn

re Custody of O’Rourke, 514 N.E.2d 6 (Ill. App. Ct.

1987) (a maternal aunt and uncle who would

sometimes care for the children did not have

standing because the court ruled that when the

met

mother died, physical custody of the children

transferred to their father); Lawrence Schlam,

Standing in Third Party Custody Disputes in

Arizona: Best Interests to Parental Rights- And

Shifting the Balance Back Again, 47 ARIZ. L. REV

719, 745 (2005).

In this case, the Pennsylvania Courts

declined to utilize necessary standards but rather

allowed Mr. Deeter to assume in loco parentis

status over the objections of a fit, natural parent-

simply because of his relationship with the mother

This is outside of the “well defined limits” intended

by other courts and required by constitutional

considerations. Our understanding of parental

rights is rooted in our nation’s history and

necessary to our understanding of ordered liberty,

and this decision is adverse to those well

established values in western civilization. A

similar situation that happened to Mr. Harner

could happen to anyone unless Pennsylvania is

required to adhere to appropriate standards when

divesting custody. Because of the lack of necessary

standards, fundamental rights and parent-child

bonding are in jeopardy, risking further damage to

societal stability.

[i]. Children’s interests are best served

when third party interference is

minimized.

In custody and visitation disputes, children

are often collateral damage. It is important that

the Courts do not increase the occurrence of this

unfortunate reality by expanding the universe of

those who can demand custody. An increase in

custody disputes will increase the burden on

children who not only must be shuttled around and

endure uncertainty in their lives but must witness

the animosity between important figures in their

lives. For the child’s welfare, these instances

should be minimized. The fewer people that have

standing to challenge custody and visitation, the

better off the child will be. See Janet Weinstein,

And Never the Twain Shall Meet: The Best Interests

of Children and the Adversary System, 52 U. MIAMI

L. REV. 79, 86-87 (1997) (noting that the conflicts

over the best interest of the child continue to take

place in a win or lose framework).

Our society implicitly recognizes the notion

that a child belongs to his or her natural parents

and that the natura] parents have a fundamental

right to the custody of their child to prevent

children from being “tossed around.” See Abraham,

supra at 125, 150 (“If stepparent visitation is

ordered over a natural parent's objections, the child

is at risk for being placed in the middle of a

litigation tug-of-war’).

If this decision is allowed to stand, whoever

is deemed to be in loco parentis and can afford to

litigate over parental rights can “buy time” with

the child. Furthermore, because of the nature of

the adversarial system, the prize fighting attitude

in such disputes can sometimes involve extreme

accusations and even child coercion. Weinstein,

supra at 86-87. This environment highlights third

parties’ self-interest while blatantly disregarding

children’s vital relationship with their natural

parents. An invasion of this relationship comes at a

cost. See Troxel, 530 U.S. at 64 (observing that “the

State’s recognition of an independent third-party

interest in a child can place a substantial burden

on the traditional parent-child relationship’)

As noted in “Troxel, the demographi

changes of the past century make it difficult to

speak of an average American family.” 530 U.S. at

63. The unfortunate reality in a country with high

divorce rates and single parent families is that

children relocate often. It is in a child’s best

interest to live with her fit, natural parent and be

free from interference. This has been consistently

recognized in the law. Indeed, “American society

has always given great weight to the parent-child

relationship, and, in general, our culture has

accepted the principle that important decision

about the custody and control of children should bs

left in the hands of natural parents.” Guggenheim

supra at 18

Children, whose interest: are Vitaily

important, have no standing to bring an action and

have only a muted voice in proceedings dealings

with their family relationships. See Sarah H

Ramsey, Constructing Parenthood for Stepparents

Parents by Estoppel and De Facto Parents Under

the American Law Institute’s Principles of the Lau

of Family Dissolution, 8 DUKE J. GENDER L. &

POL'Y 285, 286 (2001). Since children are not truly

in a position to advocate their own interests, our

laws must recognize that it is best that third party

interference be minimized Third party

interference subjects the child LO multiple

24

competing claims, lack of bonding with their

natural parents, disputes between the adults in

their lives, and being shuffled around. In these

complex situations, protecting the fundamental

right of the fit and involved natural parent also

serves the child.

The Supreme Court stated in Parham vu

J.R., 442 U.S. 584, 602 (1979), and reaffirmed in

Troxel, 530 U.S. at 68, that “historically it has

recognized that natural bonds of affection lead

parents to act in the best interests of their

children.” Furthermore, the child has a reciprocal

right in the continuance of the relationship with

their natural parent absent the rebuttal of the

fitness presumption. See Uhing, 488 N.W.2d at

374-75 (noting that the “establishment and

continuance of the parent-child relationship ‘is the

most fundamental right a child possesses to be

equated in importance with personal liberty and

the most basic constitutional rights” (citing

Johnson v. Hunter, 447 N.W.2d 871, 876 (Minn.

1989))). It is a violation of the parent’s rights and

the child’s rights to award primary custody to a

third party without a showing of unfitness.

In the instant case we have an involved,

natural father who objects to surrendering his

parental rights. In Troxel, the Supreme Court

noted the presumption “that natural bonds of

affection lead parents to act in the best interests of

their children.” 530 U.S. at 68 (quoting Parham,

442 U.S. at 602). See also William C. Duncan, De

Facto Parents, NATL REVIEW ONLINE, Aug. 31,

U0 (explaining th: ological t cre

likelihood that the parents would identify wit!

child and be willing to sacrifice for that child

it would reduce the likelihood that either parent

would abuse the child’). The ability of a natur

parent to bond with their child essential i

relationship that hi recognized

‘

tundamental in our st y important fo1

welfare of children, that their bonding with thi

natural parents not be disturbed. Ever

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