Harald Schleiffer, a Minor by Next Friend Ann Ker v. Edward J. Meyers, as Judge of the Whitley Circuit Court of Whitley County, Indiana
644 F.2d 656
7th Cir.
1981
Check Treatment

*3 оf custody tion for divorce and for Harald. CUDAHY, Cir and Before SPRECHER without Hjordis knowledge Schleiffer was WILL, District Judges, cuit and Senior received no notice proceedings of these and Judge.* 11, 1976, of June or service summons. On Harald SPRECHER, John took to the United States to Judge. Circuit Jersey. grandparents visit his in New John judgment appeal This is an from the final Hjordis informing on July wrote of for Northérn Dis- the District Court divorce, failing his desire for a but her of dismissing plaintiff’s peti- of Indiana trict of pending inform her Dominican Re- injunction tion to state a for an for failure 29,1976, proceeding. July a final public On upon granted. claim which relief can be custody of divorce and was awarded decree This is a сivil case under 42 U.S.C. to John in the Dominican by Repub- default Schleiffer, minor, a § Hjordis first learned of proceeding. lic friend, Ker, against next of Ann brought February, decree in 1978. During divorce Meyers, Judge Edward J. his capacity John also the summer commenced Court, of Whitley Whitley Circuit Coun- for divorce and in the proceeding ty, injunction Harald sought Indiana. Hjordis Jersey. courts of New received against enforcement of an order of the Cir- process by mail. resolution service Whitley Indiana, cuit County, Court of en- appears proceeding of this is unclear forcing awarding custody a Swedish decree issues before us. be immaterial Harald, citizen, ten-year-оld American mother, Hjordis Schleiffer, to his a resident returned to Harald and father Swe- Sweden, subsequent August, 1976, parent’s citizen of and a den in mar- * Will, Judge Hubert L. District Honorable Senior sitting by District for the Northern of Illinois is designation. However, proceedings on De- Even before Swedish

riage was “reconciled”. final, filed a a “Motion Harald’s father filed cember were in the District for divorce joint application Temporary Re- Provisional Order for Court, appears It Gothenborg, Sweden. in the Without Notice” Cir- straining Order divorce, par- for application that in the Whitley County, Indiana. cuit Court should have custo- agreed Hjordis ties that on June supplemented This mоtion court issued of Harald. Swedish dy Custody” praying a “Petition for pos- have Hjordis lite that pendente orders placed in his fa- officially Harald be residence, Hjordis session of the is The record before us custody. ther’s Harald, pay and that John were proceedings what as to incomplete During support Hjordis and Harald. clear, It how- action. in the Indiana held March, 1978, John, through his Swedish came to the United ever, Hjordis counsel, sought unsuccessfully modify re- the father’s against to defend *4 custody the lite award. pendente quest. John, under the August On on July his decision issued Judge Meyers guise taking Germany Harald to for a the Indiana He concluded 1980. vacation, brought Harald to the Unit- short Act, Jurisdiction Custody Child Uniform ed States. Harald has remained the 31-1-11.6-1, the case. seq., applied et I.C. custody United States the care and of his the cus- found that Swedish specifically He father ever since. international given should be tody decree November, 1978, John, through 31-1-11.6-23, to I.C. recognition pursuant counsel, filed an application for Swedish custody decrees recognition to gives which divorce in the absolute Swedish divorce ac- of other appropriate authorities rendered sought, among tion. Harald’s father other opportunity notice and nations if reasonable things, custody hearing of Harald. A per- to all affеcted given heard were to be Gothenborg held in District Court on Janu- then held Judge Meyers sons.1 29, 1979, on the ary issues of divorce and pursuant was rendered Swedish decree appeared Harald’s father custody. through substantially prerequisites jurisdictional Hjordis appeared while attorney, per- and that accordance with Indiana law and with counsel. Harald was not sonally to assume court “has not declined Swedish present hearing. February at the On the initial jurisdiction modify continuing 1979, the Swedish court issued its decision Therefore, ruled Judge Meyers decree.” the divorce and granting awarding custody the Indi- prevented 31-1-11.6-14 that I.C. found, Hjordis. of Harald to The court jur- taking subjеct-matter from ana courts alia, parents agreed inter that the had The court custody petition. isdiction of the Hjordis their for divorce that application refused, 31-1-11.6- pursuant to I.C. also Harald, custody retain that John had because 8(b),2 jurisdiction to exercise its with- removed Harald United States physical John had removed Harald from consent, Hjordis’ out these circum- without her consent custody of his mother John to less suitable as proved stances be decree. and in violation of the Swedish parent. John has refused to com- custodial to exer- declined Judge Meyers additionally with the court’s award of cus- ply Swedish Indiana was jurisdiction cise because and has not returned Harald to his tody Forum,” exercise of custody. mother’s care and and the “Inconvenient custody improperly person has footnote 7 infra. entitled to See tempo- a visit or other retained the child after 31-1-11.6-8(b) custody. rary relinquishment physical I.C. states: If provi- child, petitioner required other has violated Unless in the interest of the custody jurisdiction decree of another state the the court shall not exercise its sion of a jurisdiction modify its decree of another state if decline to exercise petitioner, person just proper without consent of the under the circum- if this is custody, improperly entitled to has removed stances. physical the child from the of the unique society role in our of the purposes would affront various jurisdiction Custody of the Indiana Jur- Uniform Child “we the institution which family, in- isdiction Act. He concluded that finally pass many down of our most culcate under were no bar to federal I.C. values, cultural,” moral and cherished But, claim. court consideration Harald’s Cleveland, Moore v. East Anti-Injunc- the court concluded that 1937-38, Act, tion prohibited U.S.C. § (1977)(plurality opinion), re- L.Ed.2d 531 court from Harald’s granting petition principles quires that injunctive relief. The court reasoned that sensitivity flexibility with applied rights this case was not a civil but was needs of and сhildren. special only a child custody contest. To the district justify- three reasons recognized We have court, Judge Meyers’ nothing orders were that the constitutional ing the conclusion custody. more than an award of Conse- equated cannot be rights of children quently, since there was no civil vio- peculiar vulnerability those of adults: lation to lift the prohibitions of the Anti-In- Act, junction children; the district court dismissed to make crit- inability their petition. appealed to this informed, in an mature ical decisions Court. We have enforcement of stayed manner; pa- importance and the Judge Meyers’ pending orders resolution of rearing. rental role in child this appeal.3

II A. *5 primary Parents have a constitu considering pertinent the Before tional right upbringing to direct the present factors involved in the case and education of their children while under claims of balancing then the constitutional their control.4 “This primary role of the child, parent the custodial and the it is parents in the upbringing of their children to note one additional factor that important is now established beyond debate as an en relationship. pervades parent-child the Ob during American tradition.” Wisconsin v. between a viously, ordinary dispute par the Yoder, 205, 232, 92 406 1526, 1541, S.Ct. ent and child does not arise as a civil (1972). But, 32 L.Ed.2d 15 children also it requisite issue since would lack the state rights independent constitutional in support action of one side or the other. those afforded their A parents.5 child’s In where there is state in those situations however, rights, constitutional are not al volvement, parent-child the outcome of the ways equal to similar rights of adult.6 conflict often turns on whether the state Baird, 622, 634, In Bellotti v. 443 U.S. 99 discretionary power exercise its chooses to 3035, 3043, S.Ct. 61 L.Ed.2d 797 result, to favor one side or other. The plurality opinion by Justice Powell ob therefore, served: by is often determined state law 3, (1944); appeal September Society 3. This was docketed on 88 L.Ed. 645 Pierce v. of Sis- 1980, days petitioned ters, 510, 534-35, 571, 573, and five later Harald for a 268 U.S. 45 S.Ct. 69 stay, 12, September Nebraska, ‍‌‌‌‌​‌‌​​‌​​​‌​​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​​‌​‍which (1925); Meyer was denied on 1980 v. L.Ed. 1070 262 U.S. by panel judges 627, motion of three 390, 401, 625, other than 43 S.Ct. 67 L.Ed. 1042 panel. petition Harald’s to reconsider (1923). stay 25, September denial of a was denied on petition reconsider, A 1980. brief second to 358, 1068, Winship, In re 397 U.S. 90 S.Ct. 25 matter, citing granting no new resulted in the Gault, (1970); 1, L.Ed.2d 368 re 387 U.S. 87 stay 3, on November the motion 1428, (1967); 18 L.Ed.2d 527 Kent v. panel, granting which stated no reasons for States, 541, 1045, United 383 U.S. 86 S.Ct. stay. (1966). L.Ed.2d 84 Walcott, 246, 255, v. 434 U.S. Quilloin Pennsylvania, example, 6. For see McKeiver 549, 554, (1978); Ginsberg L.Ed.2d 511 1976, 403 U.S. 91 S.Ct. 29 L.Ed.2d 647 York, 629, 639, v. New 390 U.S. 88 S.Ct. (1971) (no jury constitutional to a trial in (1968); 20 L.Ed.2d 195 Prince v. Massa- juvenile court). chusetts, 438, 442, decision, parent, act; and state or her fitness to so and no fre- balancing Thе constitutional mandate. allegation fitness of Harald’s father quently permit will either outcome to the if he intends to as parent. act custodial dispute. Developments in child-parent See important, allegation But most there is no Family, and the Law—The Constitution way that relates in the best interest (1980). 93 Harv.L.Rev. of Harald that attacks in any way the validity, integrity, or continuing viability of First, importance we consider the either Swedish decree or the Indiana parental rearing. role child Harald was enforcing decree the Swedish decree. We reared mother father by his in Sweden with are left the unchallenged assumption years. for his first six After a two-month is in Harald’s best interest to be visit father with his to the United under the care and custody of his mother. Sweden, he father returned to and his years where he lived for two more implications of this suit leave (and mother also with his fa- presumably the upbringing and education of Harald in a ther). guise taking Under Harald total vacuum. Even we assume that vacation, Germany for short his father enough was mature to seek indepen took August him to the United dent counsel or at least to acquire a next of he has Having where since remained. who mind, friend had his best interest in we spent eight with his moth- years Sweden assume at age cannot 10V2Harald is er, he stranger is no to either his mother or enough mature to become emancipated and her country. provide himself. To comply with father, petitioned who had himself petition enjoin the Indiana de Swedish for an absolute divorce cree would be to leave Harald without a therein, fully represented was parental custodian. found by that court “to be less suitable

custodial of the child.” That finding B is understandable inasmuch as the father brings This us to the second factor *6 had previously agreed writing in the that inability considered: the to child make mother custody, yet should have and he fled an informed, critical decisions in mature years earlier, Sweden with the child. Two manner. We must assume on the bare rеc- the father had fled Sweden Harald ord before us upon that Harald is his acting while unsuccessfully he tried to obtain a preference, own in considering but that divorce in the Republic both Dominican and preference we cannot isolate ourselves from New Jersey. brought father also As reality. comprehensive Harvard Indiana proceedings recognized which the Law Review on comment familial constitu- Swedish decree and ordered that Harald be rights has noted: sent to his mother in Sweden. although young may But child indeed

We know little of Harald’s mother except competent be many important to make that prevailed she has both the decisions, Swedish personal strong there is a rea- and Indiana courts. also came She ability son to doubt to an en- make n appear United order to States before as lightened parent to which Indiana It court. is to important note that guardian. prefer- should be his A child’s petition Harald’s skeletal these federal in such uniquely ence circumstances is proceedings, allegation there is no that his to on be based considerations that likely mother any way; is unfit in no allegation own long run counter to his run best as to or in where whose example, For children many interests. here; would if he up prevailed end no alle- prefеr le- may automatically the more gation Ker, the identity to of Ann who parent; many may nient psychologi- be brought suit impelled as Harald’s “next of cally anger to vent or act so as friend;” allegation no as to whether Ann one of punish getting Ker intends role of Perhaps to assume the custodial most there important, divorce. ten-year- To exalt a parent. his custodial will the choice strong likelihood

is a larger over the of residence by parental old’s choice improperly influenced be will care for him of which promises. question threats or invert and would be to in his best interest Constitu- in the Law —The Developments hierarchy. family normal subvert the Harv.L.Rev. Family, tion and omitted). (1980) (footnotes 1346-47 involve- the state we consider Finally, that its courts requires law lead to the factor ment. Indiana These considerations foreign Ei- decrees vulnerability of children. faith and credit peculiar give full through already put ther Harald has been with a decree substantially conformity natural suing displace the trauma of the United States. within a state entered guardian mother as his or he is unaware court ‍‌‌‌‌​‌‌​​‌​​​‌​​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​​‌​‍The Indiana 31-1-11.6-23.7 Ind.Code have conceivably could the suit because to enforce the determined accordingly has knowledge. without his been filed others decree. Swedish case, trau- In either it wоuld be even more above considerations of the Each brought before the matic for Harald to be in the context of leads us to conclude finding hearing, in a fact court formalized situation the constitution this child judge in or even before the federal district equated child cannot be rights al chambers, prefer- to determine his actual an adult. with those of between his This could be parents. ence as Harald, in the worst interest of see Parham C R., 584, 610, v. J. U.S. constitution- what We must next consider particu- and not 61 L.Ed.2d 101 peti- to claim. His Harald seeks al to a solution. larly helpful in the district tion and memorandum Moreover, put prefer- we must indicate that his in this court and his briefs ence to reside in the United in the the Indiana de- claim is precise most family picture. context of the entire Har- from the “deportation” to a cree amounts prefer ald indeed to live in the United that a citizen cannot United States question prefer- but we whether the broadly claims violation deported. He ence would still exist if it means de- under the equal protection due struction, family or deterioration of other Fourteenth Amendment. court, In this relations. Swedish is based argument “deportation” court, indirectly the Indiana state travel, the constitutional upon that, balance, it in Har- determined residence, to leavе a choice of exercise best interest to maintain a life ald’s as one chooses. stay in the United States will be in with his mother. That Harald Dulles, Kent v. care, and control of his mother custody, *7 (1958). That this 2 L.Ed.2d necessarily implies upon some restriction right always in adults is not undoubted own such as his desire preferences, adjudicated been in children has absolute But, in the bal- to live the United States. in the context of what has several times ancing decision made the Swedish is, deportations, called de facto been life implicit family and the tradeoffs within aliens have sired children deportable where necessarily deny do not Harald his constitu- in the United who are therefore born rights. Harald will remain an Amer- citizen, Many appeal citizens. courts of country, will in a free American ican reside concluded that the constitutional and will retain his freedom to choose where vio- such citizen-childreii are not emancipated rights he shall live once he is from of provides: ing legal cus- institutions similar in nature to 7. Ind.Code 31-1-11.6-23 tody by appropriate of rendered authorities general policies chapter The the international chapter relating of this extend to oppor- nations if reasonable notice and other tunity provisions The of this area. given be heard to all to were affected recognition to the and en- persons. custody forcement of of states decrees other apply custody decrees and decrees involv- Bergstrom Bergstrom, In v. 623 F.2d 517 of their deportation lated when deporta- facto the children’s de (8th 1980), necessitates the District of Columbia Cir. cases, noted that In such it has been tion.8 granted custody had in 1978 Superior Court country foreign return to the the child’s seven-year old child her over a then bar, but not merely postpone, “will [his or] mother, Norway, during lived in who her residence in the United States or] [he father, and to the who lived in year, school here.” choose to live ultimately she should Dakotа, While during the summer. North (3d 558 F.2d Gaffney, Acosta v. Dakota for the sum- the child was North 1977). Cir. mer, guardian ad litem for the child Rusk, In Schneider action, claiming federal filed a 1187, 1190, 12 L.Ed.2d 218 at removal from United States child’s said: Supreme Court summer violated her consti- the end of the to reside A native-born citizen is free right as a citizen to live in the tutional indefinitely suffering without loss abroad court, after the The district United States. abroad, citizenship.... Living of report appoint- of a court submission or na- whether the citizen be naturalized possessed held that the child psychiatrist, ed born, lack of alle- badge tive is no remain in the right a constitutional Unit- evidences a volun- giance way no questiоn custody but that the ed nationality and alle- tary renunciation of should be deter- within the United States compelled by It indeed be giance. F.Supp. mined in the state court. 478 business, legitimate or other rea- family, filed a cus- (D.N.D.1979). father then sons. Dako- appropriate action in the North tody Consequently, we do not consider Harald’s granted custody That court total ta court. to be an absolute bar to Norway the mother in and found that parent’s his custodial decision to reside in and his litigation the father’s His constitutional to travel Sweden. violations of the District of Columbia decree and to reside in the is one of United States damage had resulted emоtional several rela- rights involved ap- The North Dakota decree was child. tionship. citizenship Harald retains pealed. to return to the United States an adult. appeal pending, While that Appeals Court of vacated Eighth Circuit D judgment district court’s on the the federal Before considering Harald’s broader that the constitutional issue ground deprivation claims of of due right to remain in the United States child’s equal protection, pertinent it is observe for decision and that the dis- ripe was not subject the whole of domestic rela should have dismissed the child’s trict court tions, particularly custody prob child Citing 623 F.2d at 519. re complaint. lems, generally аre considered state law cases, Ap- the Court of Burrus and similar jurisdiction.9 matters outside federal said that peals “[r]eexamination case with facts close to those single federal belongs is a matter which arrangements our case was resolved federal defer at 520.10 in state court.” Id. exclusively ence to state authorities. *8 128, Immigration Major, 1969); v. and Natural- Mendez v. F.2d 131-32 Gonzalez Cuevas 340 Service, 1222, (5th (8th 1965). ization 515 F.2d 1224 Cir. Cir. Immigration 1975); v. and Naturali- Cervantes Burrus, 586, re 136 U.S. Service, 89, (10th zation 510 F.2d 91-92 Cir. Huynh 850, 852-53, Thi (1890); 34 L.Ed. 500 Immigration 1975); Enciso-Cardozo v. and Nat- Levi, (6th 1978). Anh v. 586 F.2d 632 Cir. Service, (2d uralization 504 F.2d 1253-54 Immigration 1974); Robles v. and Naturali- Cir. Supreme of North Dakota subse- 10. The Court Service, (10th zation 485 F.2d Cir. quently reversed the lower state court and rein- Immigration 1973); Perdido v. and Naturaliza- original custody decree of the Dis- stated the Service, (5th tion 420 F.2d 1181-82 Cir. split insofar as the trict of Columbia in the support finds This conclusion our belief reinforces case Bergstrom The Supreme Court preference prop- child’s residential recent decision that the R., in the state and resolved erly supra is considered v. J. Parham to de- designed custody proceedings (1979). In court’s 61 L.Ed.2d interest of what is in the best termine whether question there was the volved proves also Bergstrom case child. The rely on a constitutionally could the state in state and feder- lengthy legal battles parent guardian or by a child’s decision a the child in serious al courts leave institution to a mental the child commit .state, that the despite the fact emotional after the hearing before or a without was initiated presumably litigation federal that de held The Court commitment. by the child. liberty inter the child’s substantial spite Circuit, confined, recent decision of the Second has no con The he being est in constitutional conflicts involving parent in a case claim when stitutional re- here, to those resolves similar he should be decided that has guardian equal protection maining process due hospi and the hospital mental in a placed States, v. United claims. In Leonhard he dеtermined that psychiatrists tal (2d 1980), the mother F.2d 599 Cir. 606-13, 99 Id. at treatment. needs and the mother was father were divorced interest liberty The 2506-2510. at children. awarded of three She more substantial clearly was Parham began to a man who thereafter married here in of the children than the interest later prison prisoner serve a sentence. from their periodic visits possibility the fed- arrangement into an with entered parents’ And the effect father. for tes- whereby in return government ‍‌‌‌‌​‌‌​​‌​​​‌​​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​​‌​‍eral e., Parham, complete’ i. organ- against certain members tifying any family from of the child removal crime, given were ized he and his environment, more drastic than was far a spirited away and were new identities the children’s relocation the effect here of years, location. For several new and secret Since, as mother. accompanied by their children was not the father of the three Parham, right a child has no was held visitation, but insofar as he deprived of only decides hearing when his to a knew, com- disappeared his children had him treatment for needed medical obtain He the face of the earth. sued pletely from family to transferring him from the children, and his claim- on behalf of himself institution, a of a mental the confinement right the children’s constitutional ing that com- have no cause to children fortiоri company consigned not to be parent when their custodial plain their not to be convicted criminal and such charged with government officials secreted out of the reach of their father safety by protect their functions decide were violated. them, concealing relocating and af- Appeals Circuit Court Second intru- If the more drastic parent. their the district court’s dismissal of the firmed require hearing, surely sion does not claims, concluding children’s constitutional not. intrusion does less drastic the federal defendants’ “reliance to be returned Permitting Harald to the removal ... consent mother’s] [the Sweden, spent where he hаd his father to protect of the children to and concealment drastic as is neither as eight years, first crime, deny did not organized them from mental insti of a child into a the placement of law.” 633 F.2d the children due Parham, as drastic as se nor tution as in (footnote omitted). The court at 620-21 father as children from their creting said at 620: expert both sides dictate witnesses on involved. How- tions of of both pro- ever, interests to receive is in Ida’s best the court also held that the child should therapy help or coun- in the form of fessional remain in the United not as a constitu- Bergstrom, Bergstrom seling.” 296 N.W.2d but in the child’s best interests. (N.D.1980). The court concluded that “the recommеnda-

665 want to presently that Harald does in fact of the Swedish Enforcement Leonhard. gener- Children in the United States. poses stay Indiana court by the .custody decree are, and, at ten or things they as ally prefer Harald. deprivation to constitutional no eleven, have been for they “home” is where Ill or two. year the last constitu balancing the summary, However, and the custodial rights of the of a constitutional involvement [t]he the factors child, considering all of and lifts a case by minors no means right conclude that this we which affect policy problems practical above the judi a not suffered has Harald Schleiffer abstract minority stаtus into some rights of civil deprivation remediable cially of that in which an abandonment sphere held, would which, court has as the district always ap- of law that has body special in to overcome the obstacles be sufficient justified. is When both to children plied Act. Al Anti-Injunction terposed by involved, are ... and children parents is for the Harald’s best interest though itself even more law must concern of the Indiana or Swedish determination context, since a court special with that courts, the record passing we note in that unique legal then confront the must his best interest before us indicates that parents. role of social terminating pro this by will be advаnced and the New Hafen, Liberation Children’s and allow promptly possible as ceeding Some Reservations About Egalitarianism: proceed.11 court to ing the state 1976 Abandoning “Rights”, Youth to Their court is af- judgment of the district 605, Although 641. there is B.Y.U.L.Rev. firmed. here to invoke the sufficient state action Constitution, Shelley of the see protections CUDAHY, concurring. Judge, Circuit 836, Kraemer, 92 U.S. excel- fully Judge Sprecher’s I in concur a (1948), the real conflict from L.Ed. 1161 murky potentially opinion lent in the instant case is be- viewpoint federal wish to elucidate what tragic impasse but to remain in this Harald’s desire tween to me. seems the heart of the matter essentially private action country and (1) choosing to live in for either a his mother Sweden.1 recognition Harald seeks citizen, scope of Harald’s to remain of the right, Any constitutional as a evaluation States, the Constitution must fo- (2) protection or a to a due under in the United rights to concern with Harald’s hearing respect with to the order cus on our against parental him depriving protected him to sending Sweden to his interests.2 liberty contrary inter- that he thinks constitutionally protected pow- rights parental to override Parenthetically, plausible est. I think While such challenge ap- his mother’s the President Harald does 11. On December custody provides custody; willing provеd in her Public Law which he is to remain Ap- locator service be used States. the Federal elects to live the United she Certainly a child cus- pellant’s connection with the enforcement of at A-10. the factors Brief kidnap- tody parental awarding decree and in cases of the Swedish court considered provides specifically existing ping; and that the not relevant to a determination are provision dealing of the Criminal Code rights under the Constitution. testimony, flight prosecution giving to avoid apply shall in the case of 18 U.S.C. § distinguishes others es- this case from This parental kidnapping. provides This law a cur- rights tablishing for children Congressional rent of the attitude assessment against with the child side where the parental kidnapping. toward g., Moines School E. Tinker v. Des the state. District, 21 L.Ed.2d immaterial, parent has I when one deem it Gault, (1969); In re child, rights lawful cases, (1967). In such 18 L.Ed.2d live in has been made decision to Sweden pose disruptive no minor’s constitutional only parent. v. United See Leonhard family. problems for the (2d 1980). 633 F.2d 619 & n.28 Cir. *10 666 denial of having support apparent

ers of of state the child’s wishes in the recognized contrary, laws have been in other con- instant case. To the the most texts, Parenthood of Central and deleterious g., consequences e. Planned severe could Danforth, 52, granting flow from the rights Missouri v. 428 U.S. 96 S.Ct. 2831, he seeks here. (1976); 49 L.Ed.2d 788 Bellotti v. Baird, 622, 3035, 443 99 S.Ct. 61 U.S. R., companion cases of Parham v. J. (1979), L.Ed.2d 797 individual circum- those 584, 2493, 442 99 61 101 U.S. S.Ct. L.Ed.2d stances were with the closely argu- linked (1979), Secretary of Public Welfare v. ably crucial or irrevocable nature of the Juveniles, 640, Institutionalized 442 U.S. 99 interest asserted the child and the corre- (1979), provide 61 142 S.Ct. L.Ed.2d spondingly interest of the par- diminished insights additional into the delicate balanc- case, the more common ents. But ing of constitutional interests when the minors, “[ljegal restrictions on especially parents wishes and children collide. role, supportive those of the parental may Both cases involve question of what important be to the child’s chances for the parents is due when seek state insti- full growth maturity that make even- tutional mental health care for one of their tual in a participation society meaning- free children. The Court ruled that a formal Bellotti, rewarding.”

ful and 443 at U.S. pre-admission hearing adversarial was not 638-39, 99 at (emphasis sup- S.Ct. 3045-46 necessary and that rely the state could on plied). parents’ decision to commit a child to a long mental institution as as a “neutral

Minors, adults, as well as are protected by factfinder,” e., i. the admitting physician, Constitution, however, even when that still determines whether the re- statutory protection operates to subvert the normally quirements admission are satisfied. parental dominant role. Fоr example, Parham, 442 U.S. at 99 at S.Ct. Planned Parenthood of Central Missouri v. acknowledged The Court parents some Danforth, 52, 72-75, might attempt to “dump” an unwanted 2842-43, 49 L.Ed.2d 788 the Court in a child mental home but refused to re- evaluated pregnant of a minor to quire pre-admission hearing into the moti- an abortion under a state requiring statute parents vation of the because disrup- the consent parent to such an abortion. hearing tive effect of such a on the parent- The Court struck down the statute because Parham, relationship. child 442 U.S. at the interest of the minor child in making a at 2508. S.Ct. decision of such consequence, assuming suf- ficient maturity, was deemed paramount While each set of may circumstances ob- any over parental asserted control. viously very others, be different from the The Court reached despite this conclusion is clear that any that a ‍‌‌‌‌​‌‌​​‌​​​‌​​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​​‌​‍the complex medical and ethical considera- young may possess child to override unpa- tions involved in the decision to undergo an parental (and latable decisions are in my But, abortion. emphasized as was in a sub- be) very view should limited.3 Institution- sequent decision, Bellotti, see 443 U.S. at alization in a mental very home involves a 3047-48, 99 S.Ct. at grave deprivation serious of a child’s in- liberty irrevocable consequences that could flow yet, willing Court was “per- terest — mit the from unwanted presumably motherhood substantial, to retain a ” make the dominant, abortion circumstance somewhat not the role in the decision .... unique. Similarly grave consequences Parham, at 99 S.Ct. at 2505. flow, however, would not seem to from a give To Harald a veto power over his moth- (Brennan, J., dissenting). circumstances where the at unfit or 2518-19 contrary child, acts to the best interests of the Harald has made no such claim in the instant relationship however, state intervention into the familial and it is in event doubtful justified. properly behalf of the child brought be See that such a claim would Parham, provide 442 U.S. at at federal State сourt. laws redress for (Stewart, J., concurring); problems parents. at Id. created unfit *11 to live in would be to er’s decision Sweden the normal roles of and child reverse STUMLER, Plaintiff-Appellant, Andrew setting.

in the family yet fully who is not Though a child COMPANY, FERRY-MORSE SEED respects may mature in all be able to Farms, Inc., Thomas S. and A. Castle L. concerning make mature decisions certain Castle, Inc., Defendants-Appellees. activities, parent-child relationship subject matter separated by cannot be No. 80-1864. component parts. Litigation into over Appeals, United Court of States the child’s to make capacity [one] Seventh Circuit. relationship. If disa- may endanger greement parent and child over between Argued Jan. 1981. already a contested has not ‘frac- Decided March structure,’ tured the the state has family legitimate preserving interest parental guiding role in the child in other yet

decisions that he is not mature

enough psychological to make alone. The litigation may

costs of even re- justify drawing

course to line arbitrary by age,

sacrificing the interests of the unusually

precocious age child at an at which the

availability contemporaries to his of indi-

vidualized inquiry only would serve as a

forum for aggression. immature

Developments in the Law—The Family, 93 (1980)

Harv.L.Rev. (footnotes

omitted). A child of less than eleven is

simply capable going it alone. If

Harald is able to remain in the United contrary to the wishes and decision parent, his custodial who will assume

responsibility for his care? I am reluctant

to make a child de facto a ward of the state

because disagreement over where the will live.4 The power

seeks to exercise over his own life is simply

inappropriate to a child of his limited age

and maturity. For this reason I would de- recognize

cline to any independent constitu- Harald, eleven, not yet

might exercise challenge the decision of

his custodial parent as to where she and her

son will live. recognize apparent I am also reluctant Harald in the father as violation of the Swedish provider event, ‍‌‌‌‌​‌‌​​‌​​​‌​​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​​‌​‍alternative of care for Harald be- decree. is for “kidnapping” cause this would condone his the state courts to determine.