Lawsuit Accuses South Carolina Doctors of Unnecessary Surgery

logo[4]COLUMBIA, S.C. – The Southern Poverty Law Center (SPLC), Advocates for Informed Choice (AIC) and pro bono counsel for the private law firms of Janet, Jenner & Suggs and Steptoe & Johnson LLP filed a lawsuit today against the South Carolina Department of Social Services, Greenville Hospital System, Medical University of South Carolina and individual employees for performing an irreversible and medically unnecessary surgery on an infant in the state’s care.

The lawsuit, filed in both state and federal court, charges that it was a violation of the U.S. Constitution when South Carolina doctors working for the state surgically removed the healthy genital tissue of a 16-month-old child, potentially sterilizing him and greatly reducing, if not eliminating, his sexual function.

M.C. was born with an intersex condition (previously called hermaphroditism) – a reproductive or sexual anatomy that does not fit typical definitions of male or female. Doctors referred to M.C. as a “true hermaphrodite.” The child was in the care of the South Carolina Department of Social Services when doctors, in cooperation with social services employees, decided to perform this medically unnecessary surgery. Children with M.C.’s intersex condition have bodies that are not easily labeled as either male or female.

Typically, children with these conditions develop as a boy or girl as they grow. Despite not knowing whether M.C. would grow up to be a man or woman, or whether he would elect to have any surgery at all, the defendants performed sex-assignment surgery on a 16-month-old child, removing his healthy phallus in an attempt to make M.C. a girl. M.C. has shown signs of developing a male gender and now, at age 8, has clearly identified himself as a boy.

“Janet, Jenner & Suggs, is known for its advocacy of young children, particularly those who suffer birth injuries,” said Ken Suggs, who is serving as local counsel. “We took this case pro-bono because we believe that it involves a significant kind of preventable injury to a young child – one that destroys a basic human right, the right of sexual identity. This case says, inalterably, that the very young have the right to a free and unobstructed path toward the gender that God has in store for them. None of us, not doctors, not social workers – not even parents – have the right to interfere.”  Suggs also represents Victim 6 in the Sandusky/Penn State child sexual abuse scandal.

The lawsuit is the first of its kind in the United States. Since the 1950s, doctors have performed this type of sex assignment surgery on infants with intersex conditions. They often fail to provide full information about the procedure’s risks to the child’s parents or guardians.

This lawsuit joins a long line of SPLC cases brought on behalf of those harmed by medical recklessness, including a 1973 case on behalf of young African-American women sterilized against their will. The lawsuit filed today was brought on behalf of M.C. by his adoptive parents, Mark and Pam Crawford, who hope to end this inhumane and antiquated practice.

“By performing this needless surgery, the state and the doctors told M.C. that he was not acceptable or loveable the way he was born,” Pam Crawford said. “They disfigured him because they could not accept him for who he was – not because he needed any surgery. M.C. is a charming, enchanting and resilient kid. We will not stop until we get justice for our son.”

Although long-term outcomes of today’s genital surgeries in children have not been well-studied, many doctors and advocates recommend that children with intersex conditions be assigned a gender at birth, but postpone any unnecessary surgery until they are old enough to self-identify with a gender and make their own decisions about their bodies.

“God made M.C. the way he is, but with one unnecessary surgery, the state of South Carolina irreparably injured him,” said Anne Tamar-Mattis, executive director of Advocates for Informed Choice. “The state made a decision that robbed him of his freedom to decide what should happen to his own body. Sadly, no one advocated for M.C.’s rights when this decision was made. It is time the state and all those involved be held accountable.”

Sean Saifa Wall, an adult with an intersex condition, was raised as a female but now lives his life as a man.  He remembers the pressure doctors put on his mother to consent to vaginal construction surgery during puberty. After hearing the details of how invasive and almost barbaric the surgery appeared, Wall’s mother refused, sparing him from irreparable injury.

“Infants and children should be loved and accepted in the bodies they were born in,” Wall said. “I speak for the many who cannot speak, including those living with the shame, isolation and secrecy that surround people with intersex conditions. I say to them, you are not alone and it’s time for us to be proud of these bodies we inhabit.”

The lawsuit charges that the defendants’ actions violated the Due Process Clause of the U.S. Constitution by subjecting M.C. to “a medically unnecessary surgery that altered M.C.’s body and permanently limits M.C.’s ability to procreate without notice or a hearing to determine whether the procedure was in M.C.’s best interest.”

The lawsuit also charges that the doctors committed medical malpractice by failing to obtain adequate informed consent before proceeding. The defendants told M.C.’s guardians to allow the sex assignment surgery but did not include information concerning the significant risks of the surgery or the alternative of not having surgery at all. Most important, they did not notify them the surgery itself was medically unnecessary.

“This case is about ensuring the safety of all children who do not have a voice,” said Alesdair H. Ittelson, SPLC staff attorney. “No one advocated for M.C.’s rights when this decision was made at a time when the state was entrusted with his safety and well-being. It is time the state and all involved answer for the needless harm they inflicted on M.C.”

Material risks of sex assignment surgery include the following:

  • The initial sex assignment may be at odds with the gender identity that develops.
  • Diminished sexual sensation
  • Sexual dysfunction
  • Chronic pain
  • Loss of potential fertility
  • Loss of the important health benefits of hormones

“The commitment Steptoe is making to this case is reflective of the firm’s rich tradition of public service,” said John Lovi, a partner at Steptoe & Johnson LLP, who is serving as co-lead counsel.  “Every year, our firm’s lawyers devote tens of thousands of hours of pro bono work on matters ranging from death penalty cases to asylum, family law and fair housing. Steptoe is recognized for our trial lawyers, and the team we’ve pulled together from our New York and Washington offices is determined to provide the Crawford family with the best legal representation possible.”


Teresa P. Kelly, Janet, Jenner & Suggs, (512) 328-4276;
Apreill Hartsfield, Southern Poverty Law Center, (334) 782-6624;
Anne Tamar-Mattis, Advocates for Informed Choice, (707) 793-1190;

The lawsuit, M.C. v. Medical University of South Carolina, was filed in County of Richland Court of Common Pleas. M.C. v. Aaronson was filed in the U.S. District Court for the District of South Carolina.


More information about the case can be viewed at

What Happened To Parental Rights?

What Happened To Parental Rights

"To raise a happy, healthy and hopeful child, it takes...all of us. Yes, it takes a village." Hillary Clinton addressing the 1996 Democratic Convention

"Parents give up their rights when they drop the children off at public school."1 Texas Federal District Judge Melinda Harmon

"You are not welcome at this school," warned the second-grade teacher. "We feel that you are criticizing and watching over our shoulder." Stunned, the Kansas mother  listened. She had voiced her reluctance to let her daughter attend an "historical" play that touted hypnotism and spiritism. Didn't she and her husband have the right to raise their daughter according to biblical guidelines?

Apparently not in the eyes of local educators. They are not alone. A Colorado mother was "expelled from the school grounds" for sharing her concern over the earth-centered spirituality taught as part of environmental education. Two New York mothers faced ridicule for objecting to the use of Magic Gathering-a psychologically addictive occult card game-to teach math. It didn't matter that the elementary age students would "summon" the ghostly forces shown on the cards they collected, calling out "spirits, enter me."

In 1988, parents in San Ramon, California, resisted the classroom use of R-rated movies. The movies were stopped-for a season. But four teachers, the local teacher's union, and the California Teachers Association sued the school board and superintendent for (1) violating their constitutional right to free speech in the classroom and (2) for allegedly heeding the religious view of a small minority of citizens. The teachers won. On May 18, 1990, a California Superior Court decided that a teacher's constitutional rights supersedes the concerns of parents and the school board.

While parents were denied the right to protect their children, the teachers were protected from parents who supposedly violate their right to educate their students their way. Who, then, is responsible for the wellbeing of children?

"We are!" say Christian parents. "It's our God-given, inalienable, and constitutional right."

"No, we are!" argue politically correct educators, social workers, psychologists, and politicians who make up the local and global "village." They often respond with contempt when faced with Christian arguments for parental rights. Few have voiced this growing hostility more bluntly than did Kathy Collins, former Legal Counsel to the Iowa Department of Education. In her article, "Children Are Not Chattel," she said,

"Children... are not 'owned' by their parents.... The Christian fundamentalists who want the freedom to indoctrinate their children with religious education do not understand [that] the law that prevents them from legally teaching their kids prevents someone else from abusing theirs."

In other words, training children according to biblical guidelines is equated with child abuse. Seen from the new global perspective, the old beliefs are handicaps which hinder the preparation of "human resources" for the global workforce." What seems absurd from a biblical perspective-such as the much-quoted 1972 statement below by Dr. Chester Pierce-makes perfect sense to globalists:

"Every child in America entering school at the age of five is insane because he comes to school with certain allegiances toward our founding fathers, toward his parents, toward a belief in a supernatural being.... It's up to you, teachers, to make all of these sick children well by creating the international children of the future."

Educational leaders have warned that it's not enough to change the children. Adults must be reached as well. The solution? Hillary Clinton's vision of the collective village! Her book popularized today's plan for child raising through a network of "partnerships" designed to weaken the rights of noncompliant parents. Teachers, social workers, psychologists, business and church leaders... all would trained in the new ways of thinking and believing. All would be taught to compromise and find "common ground". All must embrace the new visions and values. And all must help parents raise their children according to politically correct ways-whether parents want their training or not.

After all, the collective society cannot, as Hillary Clinton suggests, "arrive at a consensus of values and a common vision," unless everyone participates in the process. Nor can it create Clinton's form of consensus without "resisting the lure of extremist rhetoric and balancing individual rights and freedoms with personal responsibility and mutual obligations." All people must join in the new community dialogues where trained facilitators lead unsuspecting "stakeholders" toward predetermined outcome. All must be willing to pay for their personal rights by accepting the new collective responsibilities.

This revolution in values was planned more than half a century ago. In 1946, psychiatrist Brock Chisholm, head of the World Health Organization (WHO), described the "new" attitude toward old-fashioned parents and called for an "eradication of the concept of right and wrong":

"We have swallowed all manner of poisonous certainties fed us by our parents.... The results are frustration, inferiority, neurosis and inability to... make the world fit to live in....

"It has long been generally accepted that parents have perfect right to impose any points of view, any lies or fears, superstitions, prejudices, hates, or faith on their defenseless children.... These things cause neuroses....

"Surely the training of children in homes and schools should be of at least as great public concern as are their vaccination... [People with] guilts, fears, inferiorities, are certain to project their hates on to others.... Such reaction now becomes a dangerous threat to the whole world.... Whatever the cost, we must... [put] aside the mistaken old ways of our elders.... If it cannot be done gently, it may have to be done roughly or even violently."

Hillary Clinton's vision had been brewing in the minds of UN and other globalist change agents for decades. In 1967, psychologist Hal Robinson, who served on a presidential task force, sought the perfect blend of family and society as a child-rearing institution. Funded by the Carnegie Corporation and the U.S. government and named after UN leader Frank Graham, the project started an experimental day-care center.

A few years later, Kurt Waldheim, Secretary-General of the U.N., addressed the Executive Board of UNICEF, saying:

"Until fairly recently, in most societies, the responsibility for child development rested entirely with parents.... This... is changing... The process of child development has to be the concern of society as a whole-on the national and international level. From the very beginning, the leaders of UNICEF... clearly understood this...."

In 1981, American educators began to implement UNICEF's vision. The Missouri Department of Education launched the first government program to actually tell parents how to raise their children. Under the misleading title, Parents as Teachers (PAT), it was introduced as a voluntary project to help disadvantaged children. Five years later, it had been introduced in 40 states and "at least eight foreign countries." In 1994, it was signed into law as part of Goals 2000.

To win public support for PAT and countless other pieces of the global transformation puzzle, educators have begun a massive nationwide campaign to promote their vision and silence opposition. Nothing illustrates this "social marketing" effort better han Education Secretary Riley's Community Action Toolkit, which arms local change agents with persuasive strategies for winnining the community to their side, building partnerships, and responding to dissenting parents.

Remember, a peaceful transformation cannot succeed without general consent from the public-however uninformed that consent might be. And what strategy could better win support among the opposing forces than a friendly invitation to cooperate, share the new vision, and seek "common ground"? This process works because few dare even suspect what the change agents plan to do to parents. Even church leaders, who should be a parent's prime defender, have become "partners" to the horrendous betrayal. Left behind, are countless Christian parents who stand alone in their attempt to raise godly children God's way.

Some seek protection through state and national "parental rights" laws. But many of these bills and laws bring new dangers. Often the "rights" they promise are conditioned on parental compliance with ambiguous "responsibilities" or "duties" open to politically correct interpretations by educators and legislators. Failure to meet even one of the "duties" could cancel all the "rights".

The 1996 Parental Rights and Responsibilities Act (PRRA) ties parental rights to the parental responsibility for teaching children "literacy" and "citizenship"-two terms with open-ended meanings. Could "citizenship" imply world citizenship? It does, in some educational literature.

Would courts interpret "literacy" according to its traditional meaning or as used in California's History-Social Science Framework which calls for Historical Literacy (including cultural empathy and respect for various religious traditions) Ethical Literacy (looks at ethics from a global or UN perspective), Cultural Literacy (including the myths, values, and beliefs of cultures), Economic Literacy (understanding "the problem of scarcity" --a Marxist philosophical view--and evaluating "the distribution of scarce resources" globally), and Sociopolitical Literacy (understanding political systems and the influences that affect the "interpretations the Constitution").

Someone has warned that "those who define the terms control the system." The educational establishment-at the local, state, national and international levels-have a compelling interest in both legislating and defining parent responsibilities. To implement their agenda for the governance of each local "village", they need to link parents to an enforcable standard. Their children will be the hostage, and parental rights the carrot used to ensure compliance.

Therefore, any "parental rights" bill that that links "rights" to unspecified "responsibilities" or "duties" is dangerous. By redefining words and specifying duties, educators can force parents into "partnerships" that involve politically correct training in the "new" global values and group thinking. As the much-quoted globalist Professor John Goodlad suggests, parents as well as children must be indoctrinated with the new values:

"Enlightened social engineering is required to face situations that demand global action now... Parents and the general public must be reached also, otherwise, children and youth enrolled in globally oriented programs may find themselves in conflict with values assumed in the home. And then the educational institution frequently comes under scrutiny and must pull back."

While leading educators express "compelling interest" in conforming everyone to their global views, legislators and governors follow suit. In 1996, Ohio's governor signed a new education bill which requires certain parents to participate in new training programs. This "Ohio Revised Code" (ORC) states:

"No person required to attend a parental education or training program... shall fail to attend the program. Whoever violates this section is guilty of parental education neglect, a misdemeanor of the 4th degree." (Sec.2919.222)

When the state assumes power to tell any parent what and how to teach their children, all parents need to be on guard. Citing studies by the Carnegie Foundation and World Health Organization, Hillary Clinton suggest that the new "breakthroughs in psychology and neuroscience" that sheds light" on human behavior be communicated to "all parents." That includes parents who homeschool as well as those who use private and public schools.

Both our children and our endangered constitutional rights need protection. To win this battle, consider these warnings:

1. Know that our view of parental rights differs radically from that of most contemporary educators who can neither understand our objections nor accept our "inalienable rights." They believe they-not parents-are responsible for preparing children for the global workforce and the 21st century village.

2. Claiming our God-given rights won't persuades most contemporary judges. Many are trained to see parenting from a liberal and global-not traditional and Christian-perspective. Right or wrong, they have legal authority to remove children from parents.

3. Don't jump on parental rights legislation bandwagons at local, state or national level without thorough examination. Many great-sounding bills would do the opposite of what they seem to promise. Since the Constitution has already been reinterpreted by the courts to fit politically correct ideology, parents must resist all bills that could give the state-rather than the parents-a "compelling interest", thus weaken rather than enforce our endangered parental rights.

4. Don't be deceived by the tempting promises. God's Word says it well: "Beware lest anyone cheat you through philosophy and empty deceit, according to the tradition of men, according to the basic principles of the world, and not according to Christ." (Colossians 2:7-9)

5. While we base this battle on biblical truths and follow God's ways (pray first, speak in love, demonstrate the life of Jesus....) we must be wise as serpents and innocent as doves. That means speaking a language educators can understand-which, in turn, means understanding their words and definitions. (The glossary in Brave New Schools will help you.)

6. Most important, we must pray and seek God's guidance. Without His Word, His counsel, His strength, and His blessing we cannot win. With Him, we are more than conquerors through Christ-whether this monstrous system is stopped or not.

A version of this column originally appeared in

The Constitutional Right to Be a Parent

constitution[1]Below are excerpts of caselaw from state appellate and federal district courts and up to the U.S. Supreme Court, all of which affirm, from one perspective or another, the absolute Constitutional right of parents to actually BE parents to their children.

No case authoritative within this circuit, however, had held that the state had a comparable obligation to protect children from their own parents, and we now know that the obligation does not exist in constitutional law.” K.H. Through Murphy v. Morgan, 914 F.2d 846 (C.A.7 (Ill.), 1990.

“Rights to marry, have children and maintain relationship with children are fundamental rights protected by the Fourteenth Amendment and thus, strict scrutiny is required of any statutes that directly and substantially impair those rights.” P.O.P.S. v. Gardner, 998 F2d 764 (9th Cir. 1993)

“Parents right to rear children without undue governmental interference is a fundamental component of due process.”
Nunez by Nunez v. City of San Diego, 114 F3d 935 (9th Cir. 1997)

The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).

The several states have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).

Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government. Elrod v. Burns, 96 S Ct 2673; 427 US 347, (1976).

Law and court procedures that are “fair on their faces” but administered “with an evil eye or a heavy hand” was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).

Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982).

Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .

The liberty interest of the family encompasses an interest in retaining custody of one’s children and, thus, a state may not interfere with a parent’s custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).

Parent’s right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).

Parent’s interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584, (1980).

The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).

Father enjoys the right to associate with his children which is guaranteed by this amendment (First) as incorporated in Amendment 14, or which is embodied in the concept of “liberty” as that word is used in the Due Process Clause of the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973).

“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.” May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).

A parent’s right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.

The Court stressed, “the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection.” A parent’s interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).

Parent’s rights have been recognized as being “essential to the orderly pursuit of happiness by free man.” Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).

The U.S. Supreme Court implied that “a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255^Q56, (1978).

The U.S. Court of Appeals for the 9th Circuit (California) held that the parent-child relationship is a constitutionally protected liberty interest. (See; Declaration of Independence –life, liberty and the pursuit of happiness and the 14th Amendment of the United States Constitution — No state can deprive any person of life, liberty or property without due process of law nor deny any person the equal protection of the laws.) Kelson v. Springfield, 767 F 2d 651; US Ct App 9th Cir, (1985).

The parent-child relationship is a liberty interest protected by the Due Process Clause of the 14th Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct App 7th Cir WI, (1985).

No bond is more precious and none should be more zealously protected by the law as the bond between parent and child.” Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).

A parent’s right to the preservation of his relationship with his child derives from the fact that the parent’s achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child’s corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595^Q599; US Ct App (1983).

A parent’s right to the custody of his or her children is an element of “liberty” guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App Div (1983).

Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S Ct 1879; 466 US 429.

Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored. the state cannot be permitted to classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440 US 268, (1979).

The United States Supreme Court held that the “old notion” that “generally it is the man’s primary responsibility to provide a home and its essentials” can no longer justify a statute that discriminates on the basis of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).

Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).

State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. Gross v. State of Illinois, 312 F 2d 257; (1963).

The Constitution also protects “the individual interest in avoiding disclosure of personal matters.” Federal Courts (and State Courts), under Griswold can protect, under the “life, liberty and pursuit of happiness” phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).

The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah’s Constitution, Article 1 § 1. In re U.P., 648 P 2d 1364; Utah, (1982).

The rights of parents to parent-child relationships are recognized and upheld. Fantony v. Fantony, 122 A 2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982). State’s power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of 14th Amendment…Fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights…Fourteenth Amendment encompasses and applied to states those preexisting fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights with it: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The United States Supreme Court in a long line of decisions, has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental “liberty” interests protected by the Constitution. Thus, the decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the “Constitutional underpinning of … a recognition that the “liberty” protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life.” The non-custodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 USC § 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F.2d 1328, (1981).

One of the most precious rights possessed by parents is the right to raise their children free of government interference. That right, “more precious than mere property rights,” is a liberty interest, protected by the substantive and procedural Due Process Clauses of the Fourteenth Amendment. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Moreover, the fact that the custodians are grandparents rather than parents is legally insignificant, because families headed by extended family members are entitled to the same constitutional protections as those headed by parents, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) Even relatives who are licensed as foster parents enjoy the same constitutional rights as other custodial relatives. Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982).

Because of the magnitude of the liberty interests of parents and adult extended family members in the care and companionship of children, the Fourteenth Amendment protects these substantive due process liberty interests by prohibiting the government from depriving fit parents of custody of their children. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Duchesne v. Sugarman, 566 F.2d 817, 824 (2d Cir. 1977); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir. 1991). In the United States Supreme Court’s view, the state registers “no gains toward its stated goals [of protecting children] when it separates a fit parent from the custody of his children.” Stanley, 405 U.S. at 652.

Grandparents are also entitled to procedural due process. “An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865 (1950)).

The grandchildren have a Fourth Amendment right not to be seized by the government for child protective purposes unless it has probable cause to believe that the children have been neglected. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000). Probable cause exists only if the officials have persuasive evidence of serious ongoing abuse and reason to fear imminent recurrence. Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987).

Grandparents cannot be dismissed from the dependency case because the dependency case is the only legal way that the state can interfere with their custody. The state must prove that they are abusive or neglectful and that the children would be at risk of immediate serious harm if returned.


In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and controlling question by which the court must be guided. This rule is based upon the theory that the state must perpetuate itself, and good citizenship is essential to that end. Though nature gives to parents the right to the custody of their own children, and such right is scarcely less sacred than the right to life and liberty, and is manifested in all animal life, yet among mankind the necessity for government has forced the recognition of the rule that the perpetuity of the state is the first consideration, and parental authority itself is subordinate to this supreme power. It is recognized that: ‘The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated by its duty of protection, to consult the welfare, comfort and interest of such child in regulating its custody during the period of its minority.’ Mercein v. People, 25 Wend. (N. Y.) 64, 103, 35 Am. Dec. 653; McKercher v. Green, 13 Colo. App. 271, 58 Pac. 406. But as government should never interfere with the natural rights of man, except only when it is essential for the good of society, the state recognizes, and enforces, the right which nature gives to parents [48 Colo. 466] to the custody of their own children, and only supervenes with its sovereign power when the necessities of the case require it.

The experience of man has demonstrated that the best development of a young life is within the sacred precincts of a home, the members of which are bound together by ties entwined through ‘bone of their bone and flesh of their flesh’; that it is in such homes and under such influences that the sweetest, purest, noblest, and most attractive qualities of human nature, so essential to good citizenship, are best nurtured and grow to wholesome fruition; that, when a state is based and builded upon such homes, it is strong in patriotism, courage, and all the elements of the best civilization. Accordingly these recurring facts in the experience of man resulted in a presumption establishing prima facie that parents are in every way qualified to have the care, custody, and control of their own offspring, and that their welfare and interests are best subserved under such control. Thus, by natural law, by common law, and, likewise, the statutes of this state, the natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be intrusted with their care, control, and education, or when some exceptional circumstances appear which render such custody inimicable to the best interests of the child. While the right of a parent to the custody of its infant child is therefore, in a sense, contingent, the right can never be lost or taken away so long as the parent properly nurtures, maintains, and cares for the child.

Wilson v. Mitchell, 111 P. 21, 25-26, 48 Colo. 454 (Colo. 1910)

A version of this column originally appeared in

A version of this column originally appeared in