Are Family Courts Quietly Ignoring the Constitution?
How Santosky v. Kramer Should Have Protected Parents—But Often Doesn’t
In 1982, the United States Supreme Court issued a landmark ruling meant to protect one of the most sacred liberties we have—the right to raise our own children. The case was Santosky v. Kramer, and it required that before the government can permanently terminate parental rights, it must prove the parent is unfit by clear and convincing evidence.
That’s a high legal threshold. And it should be. Because losing your parental rights is the civil equivalent of the death penalty.
But here’s the terrifying truth: family courts across the country ignore that standard every day.
They don’t always say they’re ignoring it. They’ll mention “clear and convincing” in a ruling, nod politely at Santosky, and then proceed to destroy families based on flimsy, subjective, or politically motivated findings. In practice, the burden of proof is quietly lowered. The presumption of innocence is reversed. And the Constitution is left bleeding in the hallway.
What Happened in Santosky v. Kramer?
The Santoskys were a poor family in New York. They struggled. Their home was unstable. Their parenting was imperfect. But they were fighting to stay together. The state removed their children and, after some time, filed to permanently sever their rights.
At the time, New York only required a “preponderance of the evidence” to do this—a lower burden than even what’s used in most criminal trials. That means 51% certainty. More likely than not. A coin flip with a bad vibe.
The Supreme Court said no.
In a 5–4 decision, the Court ruled that terminating parental rights requires at least “clear and convincing evidence.” The majority opinion stressed that parents have a fundamental liberty interest in the care and custody of their children—an interest protected by the Due Process Clause of the 14th Amendment.
"When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures."
This case was supposed to be a turning point. A bright red constitutional line in the sand. A warning to states: if you want to take someone’s child forever, you'd better have real, substantial, convincing proof—not just a social worker’s hunch or a judge’s bias.
But in Today’s Family Courts, That Line is Blurred
In theory, Santosky still governs. In practice, many judges don’t follow it.
I’ve spoken to dozens of parents—fathers and mothers—who lost custody or faced termination of rights without a single finding of abuse, neglect, or harm. Sometimes their only “crime” was poverty, disability, being falsely accused, or simply disagreeing with a therapist or caseworker.
They were never given a fair trial. Evidence was often hearsay or subjective opinions. Witnesses went unchallenged. Court-appointed experts wielded uncheckable power. And the standard of “clear and convincing” became a legal formality—a box to check before signing away someone’s life.
In many of these cases, no one even raised the question: Where is the evidence? Not just some evidence. Not emotional evidence. Clear and convincing evidence.
Family Court: The Constitutional Wild West
Why does this happen? Because family court often operates outside normal judicial standards.
There are no juries.
Hearsay is frequently allowed.
Judges have incredible discretion.
Proceedings are sealed, shielding abuses from public view.
Many parents are self-represented, overwhelmed, and untrained in law.
Appointed counsel, when available, is often overworked or ineffective.
Worst of all? Many judges believe they’re doing the right thing—“erring on the side of caution,” “protecting the child,” or “going with their gut.”
But erring on the side of caution is not the law. Santosky made clear that before you can destroy a family, you must meet a clear and convincing threshold.
The Stakes Are Too High for Pretend Protections
Parental termination isn’t just another court ruling. It ends a family. It rewrites a child’s identity. It has consequences for generations.
If we don’t take Santosky seriously, we’re complicit in a system where the government can erase parents with the stroke of a pen, based on feelings instead of facts.
That’s not just tragic—it’s unconstitutional.
What Needs to Change?
Enforce Santosky strictly—not just in termination cases, but in any custody dispute where a parent’s fundamental rights are at stake.
Provide competent representation for all parents in high-stakes custody battles, especially where CPS or court-appointed guardians are involved.
Mandate written findings that clearly demonstrate how the “clear and convincing” standard was met.
Open the black box: Reform secrecy laws that shield family courts from scrutiny and enable abuse.
Train judges on constitutional rights in family law—not just “best interest” platitudes.
Conclusion: The Constitution Doesn’t End at the Family Court Door
The Supreme Court told us in Santosky v. Kramer that parental rights are fundamental. But in courtrooms across America, those words are treated like suggestions, not mandates.
We must demand better. We must hold courts accountable. And we must stop pretending that destroying a family is just another form of paperwork.
If your rights can be taken without clear and convincing evidence, then you don’t really have rights at all.
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What is the current legal understanding of this in the context of "teenage clauses"?
The courts circumvent their violation of parental rights by agreeing that *children* can decide for themselves because of what they claim is in their best interest.
Santosky, Stanley v. Illinois, Quilloin v. Walcott, Parham v. J.R., Troxel v. Granville, etc. all have said the same thing. "Clear and convincing evidence" standard and constitutional "strict scrutiny" is the standard necessary for the state (family court) to interfere with the parent-child relationship. There must be absolute, unequivocal proof. This notion that “erring on the side of caution,” “protecting the child,” or “going with their gut," is unconstitutional on its face and in its practice. The point here is that the family courts (and even the U.S. Supreme Court has said it) use the "best interest of the child" standard. The question is "what is the best interest of the child" and who has the right or authority to determine that. Even the U.S. Supreme Court and other state high courts have said "best interest of the child standard" as a statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition." Parham v. J.R., 442 U.S. 584, 603 (1979). In other words: "Best interest of the child standard" is repugnant to the U.S. Constitution.
It is true that a disagreement between the Parties exists in the family court milieu. However, simply because the decision of a parent is not agreeable to a child or other parent or, because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. Parham v. J. R., 442 U.S. at 603 (1979). Parents and children do not have competing interests, and it is not correct to presume or assume that parents and children are "adversaries." Santosky v. Kramer, 455 U.S. at 760 ("until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship"). Our Constitution treats parents as natural allies of their children. Parham, 442 U.S. at 602.
Our jurisprudence holds a high regard for the family into which a child has been born. Santosky, 455 U.S. at 759, 765-66 (rejecting "balanc[ing]" of the "the child's interest in a normal family home against the parents' interest in raising the child," or consideration of "whether the child would have a better home elsewhere"). Our Constitution assumes that children want to remain with their natural family. Id. at 766. The Court has never recognized a separate interest or right that is child-specific, per se; the only recognized right for children in this context is the child's reciprocal right to maintain his natural family relationship. Parham, 442 U.S. at 603 (not all choices will be "agreeable to a child," but that "does not automatically transfer the power to make that decision from parents to some agency or officer of the state"); Santosky, 455 U.S. at 765. To suggest government's "special interest" in protecting children, or invoking the altruistic language of "best interest," or simply saying that "children have a right to be free from harm" are legally insufficient criteria for "children's rights" and elevating the role of the state into the lives of families. See Martin Guggenheim, What's Wrong with Children's Rights, passim (Harvard University Press 2005). All human beings have dignity and the right to be free from harm--it is not uniquely a children's right. The Santosky Court's "refusal to consider the rights of the children [was] analytically correct, since such consideration would involve the assumption of unproven facts. The refusal demonstrates the Court's commitment, as a policy matter, to the autonomy of the family unit." Barbara Shulman, The Supreme Court's Mandate for Proof Beyond a Preponderance of the Evidence in Terminating Parental Rights, 73 J. Crim. & Criminology 1595, 1606 (Winter 1982).
Our jurisprudence does not see the child in isolation, but as an extension and ward of his parents, not the state. Parham, 442 U.S. at 602-03 (parents are presumed to "act in their child's best interest"); Pierce, 268 U.S. at 535; Meyer, 262 U.S. at 401. Children are not merely autonomous individuals needing the cacophony of alternate voices (e.g., state social services, guardian ad litems, educators, etc.) contending to speak on their behalf. Yoder, 406 U.S. at 213; Parham, 442 U.S. at 606 (rejecting childhood by committee approach); Guggenheim, What's Wrong with Children's Rights 95 (e.g., assigning independent counsel for a toddler to advance the child's so-called interest is a legal fiction, as that grown-up lawyer assigned is merely advancing what that grown-up envisions as best for the child). Our Constitution rejects the notion that children receive independent consideration "absent a finding of neglect or abuse" by their parents. Parham, 442 U.S. at 604.
The State and the parent do not stand in equipoise, or have an equal interest in the child. Vivek S. Sankaran, Parens Patriae Run Amuck: The Child Welfare System's Disregard for the Rights of Non-Offending Parents, 82 Temple Law Review 55 (Spring 2009) (showing a historical rejection of broad parens patriae doctrine as case law on parental liberty interest was developed in Meyer, Pierce, Prince, Yoder). "The State's interest in caring for ... children is de minimis if [the parent] is shown to be fit." Stanley, 405 U.S. at 657-58 (the State "spites its own articulated goals" of child protection when it presumptively and arbitrarily removes children without a due process hearing). The State's parens patriae interest in promoting the welfare of the child is secondary and triggered only where parents have been determined unfit. Santosky, 455 U.S. at 767 n.17; cf. In re Gault, 387 U.S. 1, 16, 30 (1967) (pejoratively describing latin term parens patriae as a rationalization "to exclude juveniles from the constitutional schemes" and invite "procedural arbitrariness"). The State has no viable interest in children who are with fit parents. The State only has an interest in children who are genuinely abused and need protection, and even then, that interest arises only after a judicial adjudication of parental unfitness.
This is where one has to argue in family court that interfering with parenting time and/or parental rights requires a 2-prong test. The first prong is, is there provable child abuse and/or neglect going on? Fourth Amendment Probable Cause is necessary because child abuse statutes are criminal or quasi-criminal in nature. If there is no provable abuse, then all inquiry into the "best interest of the child" ends, and the parents are free to have equal custody. The state cannot interfere at this point and if they do, parents need to rain "hellfire" down on the judges, lawyers, mental health retards and other court hangers-on, with judicial complaints, legal ethics complaints, mental health/psychological/medical board complaints, lawsuits, motions to recuse, etc.
Here is a case scenario: The relative hardship to Father is that he is being unlawfully denied his parenting time with his children that can never be brought back, and it continues every day that the Court does not impose reinstatement of his parenting time, and sanction the Mother for egregious interference with Father's parenting time and custody. The Mother is on a campaign of parental alienation to break the bond between Father and children. Additionally, the Father cannot afford attorneys and is representing himself pro se, while the Mother can afford well-heeled representation; even though the caselaw says that both parties must be placed on an "even playing field". Even if it means one party has to pay the attorney fees of the less financially secure party. The relative hardships that the Father faces is monumental if his application is not granted. This happens all too often in family court around the nation. The Father is left almost destitute, while the Mother is using the availability of all of the marital resources thanks to gender-biased judges and complicit lawyers.
By lying to the Court about her parenting time/parental rights interference, the Mother is judicially estopped and equitably estopped from seeking any kind of relief from the Court. Under the "Continuing Wrong Doctrine", the Mother is equitably estopped from asserting any defenses.
Since the Mother “gamed” the system, her fraud and deception is governed by equitable estoppel. Equitable estoppel is a principle that serves to stop another party from denying a material fact. The Mother willfully knows that her conduct is being done in bad faith. It is imposed by law in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought. Equitable estoppel has the following elements: (1) conduct which amounts to a false representation or concealment of material facts; (2) intention that such conduct will be acted upon by the other party; and (3) knowledge of the real facts. If the Mother committed affirmative wrongdoing and tried to conceal it, equitable estoppel allows for dismissal, with prejudice, of the case based on fraud and deception.