Potential Constitutional Rights Violations in Juvenile Cases

There is an interesting gap in Missouri law that allows Children’s Division to take custody of a child from both parents when one parent has screwed up (by genuine abuse or neglect), while the other parent (assume the parents are separated and have a court ordered joint custody) has a track record of proper care for the child.

Let’s say you have a child whose parents are separated and have split custody of the child. One parent abuses or neglects the child, and someone hotlines it. Children’s Division comes in, takes protective custody, and then goes about determining a proper placement for the child.

Under Missouri Law, Children’s Division in unauthorized to place the child with the other parent in certain circumstances, say, for example, if the other parent has a felony weapons violation in his past.

But what if that parent with a felony weapons violation has joint custody of the child per court order well after the weapons violation occurred? What if the court order had the child living with the parent with the criminal record 30% of the time, but in practice, he has closer to 50% or 60% of the time. What if the Children’s Division investigator has no evidence whatsoever that this other parent has done anything abusive or neglectful towards the child in protective custody?

None of this matters. First, the children’s division CANNOT place the child with that parent because of their regulations, practices, and procedures. Second, if the parent tries to go over Children’s Division’s head to the court, the court can just say the child’s best interests dictate placement with someone else.

This violations the Constitutional Principle set forth in a U.S. Supreme Court Case Troxel v. Granville. In this case, the Court said parents have a fundamental right to direct the upbringing of their children that would require a special burden on the part of the state or non parent regarding the fitness or lack thereof of the parent fighting for custody.

Children’s Division takes custody of children when at least one of the parents has abused or neglected the child to the point that custody with that parent is not safe for the child. Children’s Division has to prove the abuse or neglect, and such proof satisfies any Constitutional requirements. A parent, basically, gives up his right to directly oversee the raising of his child when he engages in abuse or neglect of sufficient magnitude.

I contend that in a case where the parents of a child are separated, and one parent has been actively and proficiently fulfilling his role as a parent when the other parent commits a act of abuse or neglect, it is improper for placement to be made anywhere but with the parent who had been properly fulfilling his parental role.

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