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Sacrificing Motherhood on the Altar of Political Correctness: Declaring a Legal Stranger to be a Parent Over the objections of the Child?s Biological Parent

By Alliance Alert

Part I of this Article briefly presents three recent cases where courts were asked to decide the parentage of a child born to a woman while she was in a same-sex relationship. This Part traces parental rights jurisprudence, discussing the fundamental rights of parents to direct the care and religious upbringing of their children. Part II analyzes the different legal approaches adopted throughout the nation concerning the rights of biological parents when faced with claims of parentage by third parties. Part III presents a proposal for the proper analysis of those parentage claims. It explains why any order that grants a third party visitation with, or custody of, a child over the objections of that child's biological or adoptive parent is unconstitutional unless it survives strict scrutiny: the government must have a compelling interest to issue the custody order, which is narrowly tailored to serve that interest. Practically, unless a parent is unfit, the state lacks a compelling interest to interfere with parental decisions concerning third-party petitions for custody and visitation.

Full post as published by Constitutionally Correct on January 22, 2009 (boomark / email).