After appellate court judge Jon Schmidt sidestepped an extremely important constitutional question, I submitted a petition for review to Minnesota’s highest court last week. The supreme court must answer whether a district court may deny a parent’s right to custody and parenting time with their minor child without a finding of parental unfitness. If not, does this violate the Due Process Clause of the Fourteenth Amendment?
The Due Process Clause forbids a state to “deprive any person of life, liberty, or property, without due process of law.” As asserted by the U.S. Supreme Court, the right of a parent to custody, care and nurture of the child is “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville (2000). However, state district courts rarely, if ever, give deference to these constitutional rights.
Courts have several standards with which they can judge cases. When considering a constitutional question or a fundamental liberty interest, the courts must apply the highest standard of review: strict scrutiny. This requires the narrow tailoring of laws and actions to serve a compelling government interest. In my case, the lower court used the lowest standard of review: a preponderance of the evidence. Referee Jason Hutchison essentially looked at the evidence and said, “I think there is a little more evidence than not that it’s in the best interests of the child to not have any time with Mr. Cross.” He arrived at his conclusion through highly subjective analysis and even based his conclusion on testimony he fabricated from one of my witnesses.
The decision shocks the senses. Yet, family law courts do this all the time. It will likely continue until the higher courts deem these actions unconstitutional or until states enshrine and enforce constitutional protections.
The MN Supreme Court will likely deny my petition for review. They have the discretion to do so, and they rarely take family law cases. I track what the higher court reviews, and they deny dozens of family law cases each cycle. I will know by December 23, 2024. Please join me in praying for justice for my three little girls.