Superior Ruling  Joette Katz   Retain/Appoint

Justice Katz back row, second from left

This picture shows some of the brightest stars in the judicial branch.  In January 2002 the Connecticut Supreme Court released a grandparents visitation case styled Roth v. Weston.  Fundamentally they affirmed the foundational principles of constitutional law, where some other state and even the U.S. Supreme Court have at times lost their compass.  American citizens can only hope they rise to the most exalted positions in their profession.  

1. It was held strict scrutiny is applied when fundamental parental rights are at stake, and the statute must be drawn as narrowly as possible.

2. Parental rights are superior to the best interest of the child standard. 

3. A harm threshold (this is the compelling state interest) must be exceeded prior to infringing into the parent-child relationship. There is a difference in state supreme courts on this issue, with most saying a threshold is needed.  If there is no harm threshold, there is no meeting of the compelling state interest.  The Connecticut Supreme Court nailed proper application of constitutional law. 

3. The harm threshold was correctly defined as identical to the state's child abuse statutes.  This aligns favorably with Tennessee's Ray v. Ray M2000-00895-COA-R3-CV. 

4. It was held that judges don't have jurisdiction of a child until he or she is found to be at risk of harm to the level in state abuse/neglect statutes.  Fundamental parental rights are identical in all circumstances, so this legal theory is not limited to parent v. third party custody actions, but to every circumstance where the state intends to enter the parent-child relationship.  This then means that in parent v. parent custody cases (such as in divorce) a trial judge in Connecticut will not gain jurisdiction over the child until the parents are essentially found to be unfit.  The judge then could not designate a primary caregiver, creating a visitation schedule, etc, and the parents will leave the courtroom with no limitations against them.     

But that is a huge leap from where we are today.  Since the legal community and parents are not prepared for this, it creates a problem in itself.  Most American citizens have become accustomed to very tight government control of their lives, and can no longer function without explicit directions.  Hence the requirement of narrow tailoring must accommodate present realities.  Now to meet constitutional mandates and citizens' abilities in the year 2002, we believe the narrowest order for most parents  is they or the trial judge create an equal and alternating custodial designation between them.  An example of such a statute (which can be implemented by judicial order via a constitutional ruling), can be read at: Tennessee HB2338

An additional note about this ruling, the statute itself was not struck down.  This should have been done for the practical reason to compel the state legislature to write a proper law.  As it is now the improper law may be left on the books forever, confusing citizens and attorneys alike.  

The case can be read at:  Roth v. Weston