In my ongoing courtroom custody battle with the father of my 6 1/2 year old, I have become increasingly aware of how narrow-minded and judgmental other people and adults can be. I am used to people having different opinions, but I am not used to total strangers to me and my children IMPOSING their beliefs and their attitudes and opinions onto me. It is one thing to share your thoughts, but it is a dangerous thing to deprive a parent of fundamental rights and liberties without showing any harm to the child.
I was absolutely SHOCKED to learn that 2 of my child's teachers and the assistant principal of the school had been talking about me behind my back and that the assistant principal had even considered reporting me to the Department of Children's Services because I didn't interact with my child as she would. Specifically, she thought it was HORRIBLE that I had openly and honestly discussed the circumstances of my child's conception and how her father wanted me to deliberately terminate the pregnancy, and I prayed for God to let me have a miscarriage because we both wanted her to die before she was born. I understand that that is something that a lot of people would not discuss with a preschooler. But I don't understand why anyone would think that I should limit my conversations with my child to what anyone else thinks is "appropriate." I don't think there is anyone in the world who knows my child better than me. I have spent many thousands of hours listening to and observing my child. I consider myself the highest human authority on what is appropriate for my child.
The law is clearly on my side. This is America, for goodness sake. Why in the world would ANYONE think that the mother of a healthy, happy, well-adjusted, articulate and expressive child (that is how you can tell if a child is healthy and happy and well-adjusted, by observing and listening to them, rather than making assumptions without personal knowledge of the individual and the situation) is being negatively impacted by the Mother's interactions with the child?
In Hawk v. Hawk, Supreme Court of Tennessee, June 1, 1993
"The parents initially asserted the unconstitutionality of T.C.A. § 36-6-301 (1985) under the Fourteenth Amendment to the United States Constitution. This Court has asked that the parties also address the constitutionality of the statute under the Tennessee Constitution, with particular reference to Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), the case which acknowledged a right to privacy under the Tennessee Constitution. In light of this right to privacy, we believe that when no substantial harm threatens a child's welfare, the state lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit. Thus, we find the statute to be unconstitutional under Article I, Section 8 of the Tennessee Constitution, as applied to this married couple, whose fitness as parents is unchallenged. This result relieves us of the necessity of addressing the constitutionality of the statute under the federal constitution and, accordingly, we pretermit this issue.
In determining the validity of the statute, we look first to the nature of the right at stake. Tennessee law has long held that
... a parent is entitled to the custody, companionship, and care of the child, and should not be deprived thereof except by due process of law. It is a natural right, but not an inalienable one. The parents are trusted with the custody of the child upon the idea that under the instincts of parental devotion it is best for the child.State ex rel. Bethell v. Kilvington, 100 Tenn. 227, 236, 45 S.W. 433, 435 (1898). This Court has further held that
578*578 [t]he relations which exist between parent and child are sacred ones... . The right to the society of the child exists in its parents; the right to rear it, to its custody, to its tutorage, the shaping of its destiny, and all of the consequences that naturally follow from the relationship are inherently in the natural parents, and they cannot be deprived of these rights without notice, and upon some ground which affects materially the future of the child.In re Knott, 138 Tenn. 349, 355, 197 S.W. 1097, 1098 (1917). Knott thus upheld the custodial rights of a natural father who had not been proven unfit against prospective adoptive parents in far "better financial condition." Id. Hence, although this Court has not previously determined that the state constitution protects a parent's right to rear a child, the right has long been protected from state interference, except where the child's welfare is "materially" jeopardized.
Indeed, the right to rear one's children is so firmly rooted in our culture that the United States Supreme Court has held it to be a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution.[3] In Meyer v. Nebraska,262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), the United States Supreme Court held that
[w]hile this court has not attempted to define with exactness the liberty thus guaranteed [by the Fourteenth Amendment], ... . [w]ithout doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.The Supreme Court has reaffirmed this right on many occasions. In Pierce v. Society of Sisters, 268 U.S. 510, 534-5, 45 S.Ct. 571, 573-74, 69 L.Ed. 1070 (1925), the Court voided a law that prohibited parents from choosing private education over public schooling for their children, reasoning that the law would "unreasonably interfere[] with the liberty of parents ... to direct the upbringing and education of [their] children." Similarly, in Wisconsin v. Yoder, 406 U.S. 205, 207, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972), the Court upheld the right of Amish parents to withdraw their children from public schools after the eighth grade in order to educate them according to Amish beliefs. The Court found that "[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children." Id. at 232, 92 S.Ct. at 1541. The Court acknowledged that these rights are "subject to limitation ... if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens." Id.at 233-4, 92 S.Ct. at 1542. However, finding no such threat, the Court permitted the parent's choice, basing its holding on First Amendment protections and "the fundamental interest of parents, as contrasted with that of the State." Id. at 232, 92 S.Ct. at 1542. The right to rear one's child is, therefore, heavily protected by federal constitutional jurisprudence.
Although often expressed as a "liberty" interest, the protection of "childrearing autonomy"[4] reflects the Court's larger concern with privacy rights for the family. The Court in Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), acknowledged the existence of a "private realm of family life which the state cannot enter." Protecting family privacy, the Court in Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), held unconstitutional a housing ordinance that limited the definition 579*579 of a family. The Court upheld the family's right to define its members, insisting that "the Constitution protects the sanctity of the family... ." Id. at 503, 97 S.Ct. at 1938. The Court referred not only to the line of cases such as Meyer, Yoder, and Pierce, that establish "traditional parental authority," but also to the "freedom of [procreational] choice" cases, such asRoe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965),[5] which establish "zones of privacy" based on the array of privacy protections in the Bill of Rights.[6]The Court's protection of parental rights thus evidences a deeper concern for the privacy rights inherent in the federal Constitution.
Tennessee's historically strong protection of parental rights and the reasoning of federal constitutional cases convince us that parental rights constitute a fundamental liberty interest under Article I, Section 8 of the Tennessee Constitution.[7] In Davis v. Davis, 842 S.W.2d 588 (1992), we recognized that although "[t]he right to privacy is not specifically mentioned in either the federal or the Tennessee state constitution, ... there can be little doubt about its grounding in the concept of liberty reflected in those two documents." Id. at 598. We explained that "the notion of individual liberty is ... deeply embedded in the Tennessee Constitution ...," and we explicitly found that "[t]he right to privacy, or personal autonomy (`the right to be let alone'), while not mentioned explicitly in our state constitution, is nevertheless reflected in several sections of the Tennessee Declaration of Rights... ." Id. at 599-600. Citing a wealth of rights that protect personal privacy, rights such as the freedom of worship, freedom of speech, freedom from unreasonable searches and seizures, and the regulation of the quartering of soldiers, we had "no hesitation in drawing the conclusion that there is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights." Id. Finding the right to procreational autonomy to be part of this right to privacy, we noted that the right to procreational autonomy is evidence by the same concepts that uphold "parental rights and responsibilities with respect to children." Id. at 601. Thus, we conclude that the same right to privacy espoused in Davis fully protects the right of parents to care for their children without unwarranted state intervention.
I was absolutely SHOCKED to learn that 2 of my child's teachers and the assistant principal of the school had been talking about me behind my back and that the assistant principal had even considered reporting me to the Department of Children's Services because I didn't interact with my child as she would. Specifically, she thought it was HORRIBLE that I had openly and honestly discussed the circumstances of my child's conception and how her father wanted me to deliberately terminate the pregnancy, and I prayed for God to let me have a miscarriage because we both wanted her to die before she was born. I understand that that is something that a lot of people would not discuss with a preschooler. But I don't understand why anyone would think that I should limit my conversations with my child to what anyone else thinks is "appropriate." I don't think there is anyone in the world who knows my child better than me. I have spent many thousands of hours listening to and observing my child. I consider myself the highest human authority on what is appropriate for my child.
The law is clearly on my side. This is America, for goodness sake. Why in the world would ANYONE think that the mother of a healthy, happy, well-adjusted, articulate and expressive child (that is how you can tell if a child is healthy and happy and well-adjusted, by observing and listening to them, rather than making assumptions without personal knowledge of the individual and the situation) is being negatively impacted by the Mother's interactions with the child?
In Hawk v. Hawk, Supreme Court of Tennessee, June 1, 1993
"The parents initially asserted the unconstitutionality of T.C.A. § 36-6-301 (1985) under the Fourteenth Amendment to the United States Constitution. This Court has asked that the parties also address the constitutionality of the statute under the Tennessee Constitution, with particular reference to Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), the case which acknowledged a right to privacy under the Tennessee Constitution. In light of this right to privacy, we believe that when no substantial harm threatens a child's welfare, the state lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit. Thus, we find the statute to be unconstitutional under Article I, Section 8 of the Tennessee Constitution, as applied to this married couple, whose fitness as parents is unchallenged. This result relieves us of the necessity of addressing the constitutionality of the statute under the federal constitution and, accordingly, we pretermit this issue.
In determining the validity of the statute, we look first to the nature of the right at stake. Tennessee law has long held that
... a parent is entitled to the custody, companionship, and care of the child, and should not be deprived thereof except by due process of law. It is a natural right, but not an inalienable one. The parents are trusted with the custody of the child upon the idea that under the instincts of parental devotion it is best for the child.State ex rel. Bethell v. Kilvington, 100 Tenn. 227, 236, 45 S.W. 433, 435 (1898). This Court has further held that
578*578 [t]he relations which exist between parent and child are sacred ones... . The right to the society of the child exists in its parents; the right to rear it, to its custody, to its tutorage, the shaping of its destiny, and all of the consequences that naturally follow from the relationship are inherently in the natural parents, and they cannot be deprived of these rights without notice, and upon some ground which affects materially the future of the child.In re Knott, 138 Tenn. 349, 355, 197 S.W. 1097, 1098 (1917). Knott thus upheld the custodial rights of a natural father who had not been proven unfit against prospective adoptive parents in far "better financial condition." Id. Hence, although this Court has not previously determined that the state constitution protects a parent's right to rear a child, the right has long been protected from state interference, except where the child's welfare is "materially" jeopardized.
Indeed, the right to rear one's children is so firmly rooted in our culture that the United States Supreme Court has held it to be a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution.[3] In Meyer v. Nebraska,262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), the United States Supreme Court held that
[w]hile this court has not attempted to define with exactness the liberty thus guaranteed [by the Fourteenth Amendment], ... . [w]ithout doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.The Supreme Court has reaffirmed this right on many occasions. In Pierce v. Society of Sisters, 268 U.S. 510, 534-5, 45 S.Ct. 571, 573-74, 69 L.Ed. 1070 (1925), the Court voided a law that prohibited parents from choosing private education over public schooling for their children, reasoning that the law would "unreasonably interfere[] with the liberty of parents ... to direct the upbringing and education of [their] children." Similarly, in Wisconsin v. Yoder, 406 U.S. 205, 207, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972), the Court upheld the right of Amish parents to withdraw their children from public schools after the eighth grade in order to educate them according to Amish beliefs. The Court found that "[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children." Id. at 232, 92 S.Ct. at 1541. The Court acknowledged that these rights are "subject to limitation ... if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens." Id.at 233-4, 92 S.Ct. at 1542. However, finding no such threat, the Court permitted the parent's choice, basing its holding on First Amendment protections and "the fundamental interest of parents, as contrasted with that of the State." Id. at 232, 92 S.Ct. at 1542. The right to rear one's child is, therefore, heavily protected by federal constitutional jurisprudence.
Although often expressed as a "liberty" interest, the protection of "childrearing autonomy"[4] reflects the Court's larger concern with privacy rights for the family. The Court in Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), acknowledged the existence of a "private realm of family life which the state cannot enter." Protecting family privacy, the Court in Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), held unconstitutional a housing ordinance that limited the definition 579*579 of a family. The Court upheld the family's right to define its members, insisting that "the Constitution protects the sanctity of the family... ." Id. at 503, 97 S.Ct. at 1938. The Court referred not only to the line of cases such as Meyer, Yoder, and Pierce, that establish "traditional parental authority," but also to the "freedom of [procreational] choice" cases, such asRoe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965),[5] which establish "zones of privacy" based on the array of privacy protections in the Bill of Rights.[6]The Court's protection of parental rights thus evidences a deeper concern for the privacy rights inherent in the federal Constitution.
Tennessee's historically strong protection of parental rights and the reasoning of federal constitutional cases convince us that parental rights constitute a fundamental liberty interest under Article I, Section 8 of the Tennessee Constitution.[7] In Davis v. Davis, 842 S.W.2d 588 (1992), we recognized that although "[t]he right to privacy is not specifically mentioned in either the federal or the Tennessee state constitution, ... there can be little doubt about its grounding in the concept of liberty reflected in those two documents." Id. at 598. We explained that "the notion of individual liberty is ... deeply embedded in the Tennessee Constitution ...," and we explicitly found that "[t]he right to privacy, or personal autonomy (`the right to be let alone'), while not mentioned explicitly in our state constitution, is nevertheless reflected in several sections of the Tennessee Declaration of Rights... ." Id. at 599-600. Citing a wealth of rights that protect personal privacy, rights such as the freedom of worship, freedom of speech, freedom from unreasonable searches and seizures, and the regulation of the quartering of soldiers, we had "no hesitation in drawing the conclusion that there is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights." Id. Finding the right to procreational autonomy to be part of this right to privacy, we noted that the right to procreational autonomy is evidence by the same concepts that uphold "parental rights and responsibilities with respect to children." Id. at 601. Thus, we conclude that the same right to privacy espoused in Davis fully protects the right of parents to care for their children without unwarranted state intervention.
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