I have found throughout my practice that although children are typically at the center of divorce disputes, they can get sort of left behind. By this I mean they can suddenly be treated as an item of negotiation albeit not intentional, but it happens, as there are many matters to be decided upon in the divorce process. It is important to remember that children have rights too. Cornell Law School defines a child’s rights in this way, “A child is a person and not a sub-person over whom the parent has an absolute possessory interest.” I am not implying that people do not think of their children as people, but to some degree, the children often suffer especially if the couple is not able to agree on anything. They do sort of become a casualty of war at times. Although children are considered minors and can’t make many life-altering decisions such as buying a home or voting, they are afforded basic rights within the Constitution under The Equal Protection Clause of the 14th Amendment. There are several cases throughout history proving those rights. Here are two examples:
- Prince V. Massachusetts, 321 US 158 (1944) – Children have the right to be protected from serious hazards to their well-being. The courts held that states may prosecute parents when they expose their children to such hazards.
- Stanley V. Illinois, 405 US 645 (1972) – Children have the right to be cared for by a parent upon the death of the other parent if no unfitness can be proven. The court declared that an unmarried father could care for and have custody of his child upon the death of the mother without any showing of the father’s unfitness.
An example of children’s rights under Arkansas law involves whether a child can make their own decisions about custody. The most ideal situation in custody cases is that parents will work together to determine the best custody arrangement for their family. However, if the parents can’t agree on a reasonable solution, the judge will make the decision for them. They will decide where the child will live (physical custody) and which parent has the decision-making responsibility (legal custody). The judge has the ability to award either type of custody to one or both parents together. Arkansas law presumes that joint custody is best for the child unless there is a history of abuse. Many times, when the court is determining what is in the best interest of the child, he or she will consider the child’s preference if the child is of sufficient age and maturity. There is no specific age set forth that determines when a judge is required to listen to the child’s opinion. This allows the judge to determine if the child has the mental capacity to make the decision for him or herself. One caveat is that even if the courts determine the child has the mental capacity to make the decision, they do not have to follow the child’s preference. The law only requires the courts to consider the child’s preference as the judge must evaluate all other factors relevant to custody as well as the child’s reasons for wanting to live with one parent over the other.
Additionally, under the US Constitution, children have the right to equal protection regardless of race, gender, disability, or religion. They are also entitled to due process, which includes notice, and a hearing, before any of their basic rights are taken away by the government. As children grow and mature, they are allowed other rights such as emancipation.
It's not always easy to determine the legal rights of children, to get the peace of mind you and your children deserve contact Kevin Hickey Law Partners. Our River Valley office number is 479.434.2414 and our Northwest Arkansas office number is 479.802.6560.