Compelling State Interest
What is it, and why is it important?
May 12, 2025
Those who have seen the handout that is used and suggest be given to legislators to open a discussion about changing the way custody is approached between divorcing and never-married parents may have noticed a new question that was added this year. Two are familiar, but the second one is new, and it goes over many heads.
1. Why do we allow the removal of fit parents from the lives of their children every day?
2. What is the compelling state interest in doing so?
3. Do parents divorce their children when they end their own personal relationship?
#1 has gotten many heads shaking, and a What do you mean reply.
#3 is a dig at the BAR association and their thought pattern that the courts always get it right. Yes, I have heard that from an attorney representing the BAR at an interested parties meeting before.
But #2 is the new one that attorneys will miss the finer details about that question and the arguments that come with it. Often, they miss it because they ignore or skip over the first question.
To explain:
A
"compelling state interest" is a government goal so crucial and
necessary that it justifies overriding a fundamental constitutional right. This
term is used in legal contexts, particularly when reviewing laws that infringe
on fundamental rights like freedom of speech, religion, or the right to privacy.
To be deemed compelling, the interest must be 
essential
or necessary, not just a matter of choice or preference.
Asking what the compelling state interest is raises the question of what the goal is when you enhance the rights of one and diminish the rights of another while using preponderance as an evidentiary standard. To do that would require strict scrutiny.
Are there times when the state does have a compelling state interest in the custody or care of a child?
Yes, but there are limits as to where they can and how they must view the cases.
In Children's Services cases, the state has a compelling interest in protecting children from harm and abuse. To terminate a parent's rights, they have a defined process, and they must prove through clear and convincing evidence that the abuse happened and that the parent was at fault.
The passage of HB68 is a prime example of the state exercising a compelling state interest. That legislation is to prevent minors or their parents from doing irreparable harm to a vulnerable minor.
Comments and replies
I expect that I will hear several comments when this issue is raised before the committee on custody legislation, but I am prepared. Responding quickly will quell further comments and end oppositional arguments fast. I will also explain that this issue has not been approached correctly and needs to be changed.
We have to do this to protect the best interests of the child.
Define the best interest of the child.
Parham teaches us that two fit parents will always act in the best interest of the child.
“The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”
(1979) U S Supreme Court’s Parham v. J.R. decision
Does the state declare that two parents are unfit because they ended their relationship?
If it does, then the strictest scrutiny must be applied.
Why do you think it is appropriate to walk into an unknown person’s home and tell them how to raise their family?
To use this argument to support changes to a custody law, understand all that you can about the issue and the case law associated with it.
This argument in based in the fundamental right to be a parent as well as First Amendment free associative rights.
First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham:
"[O]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations. . . . The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children." 442 U. S., at 602 (alteration in original) (internal quotation marks and citations omitted).
Accordingly, so long as a parent adequately cares for his or her children (i. e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the 69*69 best decisions concerning the rearing of that parent's children. See, e. g., Flores, 507 U. S., at 304.
Justice Scalia, dissenting.
In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all men . . . are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative 92*92 democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.
Legislative Director
440-281-5478
legislation@ohiofamilyrights.com
Additional Information below:
https://firstamendment.mtsu.edu/article/compelling-state-interest/
Troxel v. Granville, 530 US 57 - Supreme Court 2000
One of the "fundamental liberty interests" recognized by the Supreme Court is the "interest of parents to make decisions concerning the care, custody, and control of their children."
- in Hansen v. Ann Arbor Public Schools, 2003 and 1,989 similar citations
"A parent's interest in the care, custody, and control of his or her children is `perhaps the oldest of the fundamental liberty interests.'"Id
- in IN RE CHANGE OF GENDER OF OJGS, 2022 and 1,799 similar citations
A parent retains a fundamental right to make decisions concerning her child's care, custody and control.
- in Glueckert v. Glueckert, 2015 and 150 similar citations
The court then stated that, "so long as a parent adequately cares for his or her children (ie, is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children."
- in In re Lankford, 2016 and 671 similar citations
Second, as the statute had been construed by the Washington Supreme Court, it "accorded no deference" to the decision of a "fit" parent—described as a parent who "adequately cares for his or her children"—that visitation would not be in the child's best interest.
- in In re CJC, 2020 and 32 similar citations
—the Supreme Court examined a Washington visitation statute which allowed any person to petition for visitation rights at any time, and allowed state courts to grant visitation rights whenever it was in the best interest of the child, without any regard to the reasonable wishes of a fit custodial parent.
- in IN THE MATTER OF THE MARRIAGE OF RIGGS, 2006 and 37 similar citations
The Supreme Court in Troxel recognized that "there is a presumption that fit parents act in the best interests of their children."
- in People in Interest of ST, 2015 and 97 similar citations
We are mindful, however, that "[p] arents have a liberty interest in directing the care, custody and control of their children," and that "[t] he Due Process Clause does not permit a state to infringe on a fit parent's fundamental right to make child rearing decisions simply because a court disagrees with the parent or believes a better decision could be made."
- in Lubinski v. Lubinski, 2008 and 138 similar citations
Parham v. JR, 442 US 584 - Supreme Court 1979
And historically the law has recognized that "natural bonds of affection lead parents to act in the best interests of their children
- in Norman v. Norman, 2014 and 392 similar citations
A] child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment
- in Capen v. Saginaw County, 2023 and 243 similar citations
Simply because the decision of a parent is not agreeable... 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
- in Harrison v. Harrison, 2016 and 160 similar citations
The Court reasoned that "the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a `neutral factfinder 'to determine whether the statutory requirements for admission are satisfied
- in NATIVE VILLAGE OF KWINHAGAK v. DHSS, OCS, 2024 and 96 similar citations
The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions.
- in In re KC Greenhouse Patio Apartments, LP, 2012 and 430 similar citations
Yet, the state "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized."
- in New Jersey Division of Youth and Family Services v. DM, 2012 and 293 similar citations
"The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition."
- in Hodgson v. Minnesota, 1990 and 182 similar citations
Hamdi's "private interest... affected by the official action," ibid., is the most elemental of liberty interests—the interest in being free from physical detention by one's own government.
- in Hamdi v. Rumsfeld, 2004 and 56 similar citations
Some of these limitations arise out of an appreciation of the state's long recognized interests as parens patriae.
- in In re Ivory W., 2022 and 38 similar citations
Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments