TOOL OF THE DAY: When is a statute constitutional or unconstitutional?
CATEGORY: Family Law
Okay so you told the court that you believed the statute was unconstitutional, but the Judge disagreed and said that the appellate court in other cases found the statute that you are challenging as constitutional, now what? Can you salvage this argument still? Does this mean the statute is constitutional and now you are screwed?
Nope, not yet.
There are two ways you can prove a statute unconstitutional:
- Facially unconstitutional.
- Unconstitutional as applied.
Find out if the appellate court found it to be facially constitutional or constitutional as applied. And of course find out what the key facts of those cases were and compare to whether yours is the same or different.
If a statute is facially unconstitutional then it is unconstitutional as it reads. An example of this is the statute that the Troxel case overturned in 2000. That statute was deemed overly broad. “A facial invalidation of a statute is appropriate only if it can be shown that under no circumstances can the statute be constitutionally applied. See United States v. Salerno, 481 U.S. 739,745 (1987).”
There is another way that a statute can be deemed unconstitutional, and that is “unconstitutional as applied.”
Let’s use the grandparent statute as an example. Texas statute 153.433 from Texas reads that “The court shall order reasonable possession of or access to a grandchild by a grandparent if: (1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated; (2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and (3) the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child: (A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition; (B) has been found by a court to be incompetent; (C) is dead; or (D) does not have actual or court-ordered possession of or access to the child.”*
The Texas Attorney General was asked to evaluate the question of constitutionality of this very statute in 2004 in Opinion No. GA-0260. Then Attorney General Abbott’s evaluation consisted of an evaluation of appellate cases that had tested this question. He only found cases where the facial constitutionality of the statute had been tested.
He found that the first case that tested the Texas statute, just 3 months after Troxel had been ruled on, Lilley v. Lilley says that the court “balanced” the mother’s “rights as a mother with the grandfather’s request for visitation and the child’s interest in having a continuing relationship with her deceased father’s family.” They ruled that the statute was not facially unconstitutional.
(NOTE: Remember that statutes change and the statute that the court could be looking at at the time they make their rulings could be different now. So make sure that you are comparing cases that are looking at the same wording in the statute that you are challenging. The grandparent’s statute has actually tightened up since the rulings used in this evaluation. This statute was updated in 2005 after the rulings used in this example: Acts 2005, 79th Leg., ch. 484, § 4, eff. Sept. 1, 2005.)
But then Abbott found that the Roby v. Adams case states “that a fit parent acts in the best interest of his or her child. A grandparent seeking access under TEX. FAM. CODE. ANN. 5 153.433 has the burden to overcome the presumption that a fit parent acts in the best interest of the parent’s child in order to establish the “best interest of the child” prong of the statute.” He noticed that “This language evidences a fundamental disagreement between the Austin and El Paso Courts of Appeal on the application of the Troxel standard to section 153.433.”
So the AG continued his investigation of the constitutionality and found a couple more rulings where the appellate courts he looked to for guidance seemed to “have settled on the standard of Lilley and the narrower test applied in Roby.”
The AG decided that the grandparent statute had to be applied in the way that the appellate courts had settled on in order for it to not be facially unconstitutional. The AG finally decided that “…while section 153.433 is facially constitutional, it may, under particular circumstances, be unconstitutionally applied. In order to avoid an unconstitutional application of the statute, a court must require a grandparent to “overcome the presumption that a fit parent acts in the best interest of his or her child.” In re Pensom, 126 S.W.3d at 256.”
They saw the Lilley ruling as a “balanced one.” The Roby case “engrafted upon the statute a presumption that the parent is fit, that a fit parent is presumed to act in the best interests of the child, and that without a finding of parental unfitness, no grandparent visitation can be allowed over the parent’s objection.”
What does all of this mean? Well that the AG just determined that parent’s rights are fundamental in Texas! And that the state cannot interfere at the request of a grandparent unless they can “overcome the presumption that a fit parent acts in the best interest of his or her child” and that parental rights require “strict scrutiny.” The three elements that we have been covering in our blog posts since 2013 as well as thoroughly researched in our books and taught in our courses. So why isn’t this being applied to two fit parents in dispute in the courts?
This is actually huge for parents because if there is this presumption in the state of Texas then even another parent should not be able to interfere with your rights and time with your child. This would mean that the presumption is that if both of you are fit then both of you would have to overcome the presumption to interfere with either parent and child’s rights to access to the other parent. Each parent, as the grandparents are required to now, would have to prove that they had the right to override the other fit parent’s decisions.
Naturally it takes parents to challenge the court’s application of the statutes in order to get to this result. Then the appellate courts will have to evaluate each case individually to determine whether it is facially unconstitutional or unconstitutional as applied. If a statute is found to be facially unconstitutional then it is reversed and can no longer be used as it is written.
The grandparent’s statute that was used in this post was re-written the following year to meet the standards the AG mandated.
We’ll be discussing this and more this coming Sunday on the support call for “Family Access – Fighting for Children’s Rights” run by Elaine Johnson-Cobb for parents, grandparents, and other extended family members to have access to the children, this Sunday, February 8, 2015 at 8 p.m. est. If you would like to register for this please register or send questions for the call to email email@example.com. Please share this post. Thank you.
Want or need more before then? You can learn more about how to reason through your rights and protect your rights in our books and courses. Click at the top on Store and you will find the books and training tabs. The book teaches you your rights and the training courses teach you how to argue them like I demonstrated above.]
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Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author
Divorce Solutions and Child Custody Solutions
Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)
Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)
Twitter: https://twitter.com/fixfamilycourts (@fixfamilycourts)
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* (http://law.onecle.com/texas/family/153.433.00.html )