When a court places a convicted defendant on probation for a crime involving domestic violence, the court will usually restrict the defendant’s contact with the complainant as a condition of probation.  Sometimes the court will also restrict the defendant’s contact with a child he has in common with the complainant.  Usually, the restriction is to supervised visits.  But a conviction for assaulting the partner or spouse, by itself, does not justify a restriction on the defendant’s parenting rights.

Under the Fourteenth Amendment natural parents have a fundamental liberty interest “in the care, custody, and management of their child.”  Santosky v. Kramer, 455 U.S. 745, 753 (1982); Troxel v. Granville, 530 U.S. 57, 65-66 (2000).  The Fourteenth Amendment “forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Wash. v. Glucksberg, 521 U.S. 702, 721 (1997) quoting Reno v.Flores, 507 U.S. 292, 302 (1993).

At sentencing, a court’s reasons for restricting contact with the partner or spouse are obvious.  The restriction is to prevent further assaults or other trauma.   But where there is no evidence demonstrating danger to the child, restrictions on child visitation are unconstitutional.  See United States v. Myers, 426 F.3d 117, 128 (CA 2, 2005)(Since Myers was a pedophile sexually attracted to females, the probation condition requiring approval from his probation officer before contacting his male child, was not based upon a reasonable sentencing goal under due process.)

And even if the restrictions on child visitation with are legitimate sentencing goals, the restriction on the defendant’s contact with his child must not represent a greater deprivation of liberty than is necessary to achieve that goal. Otherwise, the court’s restrictions on the defendant’s  contact with his child deprive him of a fundamental liberty interest in preserving the familiar relationship.  In that case, the condition of probation is illegal.  Wash. v. Glucksberg, 521 U.S.   at 721 (1997); Reno v. Flores, 507 U.S.   at 302; Santosky v. Kramer, 455 U.S. at 753; United States v. Myers, 426 F.3d at 125-128.

Also, under the Fourteenth Amendment’s due process clause, a defendant on probation should have the right to use the family court’s to seek visitation with his child.  “It is now established beyond doubt that prisoners have a constitutional right of access to the courts.”  Johnson v Avery, 393 U.S. 483, (1969); Bounds v Smith, 430 U.S. 817 (1977).  An inmate’s right of reasonable access to the courts also includes access for general civil domestic relations matters.  Boddie v Connecticut, 401 U.S. 371, 382-383 (1971)(“ “[A] State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship (marriage) without affording all citizens access to the means it has prescribed for doing so.”) cited in Hall v. Hall, 128 Mich. App. 757, 760, 341 N.W.2d 206 (1983).   The issue of whether a prisoner may testify in person in his divorce action “is essentially whether the plaintiff’s interests in presenting his testimony outweigh the state’s relevant interests in withholding from him the means necessary for such a presentation.”  Id., at 761.

Like the interest in the marriage relationship, the interest in the parent-child relationship is a fundamental liberty interest.  Santosky v. Kramer, supra.   Logically, a probationer, who is under less restriction than a prisoner, should have the same constitutional rights to seek child visitation as the prisoner has to seek divorce.  Cf  Boddie v Connecticut.

When a defendant anticipates that a sentencing court may impose restrictions on his parenting rights as a condition of probation, his attorney should file a sentencing memorandum informing the judge of the constitutional protections of parenting rights in the probation context.  The attorney should file affidavits, psychological reports, and evaluations of child welfare agencies to establish the defendant’s fitness as a parent and that the defendant is not a threat to his child.

For more information, contact Robert Levi:  248-366-4412 or robert@robertlevilaw.com.