The U.S. Supreme Court recently upheld the granting and extension of qualified immunity to government agents who violate the rights of divorced parents to raise their children as established in a state court order of child custody in Missouri and the six other states that comprise the 8th Circuit of the U.S. Court of Appeals.
In the 9th Circuit and perhaps the rest of the country, parents’ right to raise their children is considered a fundamental right. Any government interference with that right is subject to “strict scrutiny,” the highest level of review, and the government's involvement must advance a compelling reason, such as a genuine safety concern for the children. That was presumed to be the law in the 8th Circuit prior to the ruling in Murray v. Lene.
It was Ron Murray’s belief that complete compliance with a judicial custody order would permit him to protect his children and uphold his rights. That belief, however, resulted in Murray’s spending 36 days in an Iowa jail, his children being placed into Missouri foster care for four months, the loss of his home and car, and a spiral of events from which he has yet to recover.
Prior to becoming a parent, Murray was a typical American who had spent time fighting wildfires in the western United States. It was as “Dad” that Murray made his most important contributions. Murray shared joint legal and physical custody with his ex-wife, Kayela Vittetoe, and he was the principal custodian of their children, a daughter then 11 and son then 10.
One of the provisions of the Missouri court-ordered custody plan provided that either parent had a right of first refusal: that if the other parent had to obtain child-care for more than four hours, then the other parent could elect to take custody of the children instead. The court’s order further provided that each parent would have the children for one unspecified month during summer vacation.
It was nearing the end of Murray’s month when both children approached him with allegations of a sexual nature principally against their stepdad but implicating their mom. Murray took his kids to the Iowa authorities to begin an investigation into these allegations. Iowa contacted the Missouri Division of Family Services and the Adair County Sheriff’s Department to investigate Vittetoe and her new husband.
As a result, Vittetoe entered into an agreement with the Missouri Division of Family Services to have no contact with the children during the investigation and requested that her parents take custody of the children. Missouri authorities contacted Murray and told him this. Murray informed the authorities that until Vittetoe could once again assume custody, the Missouri court order of custody provided him the right of refusal, allowing him to take the children rather than have them in child care with Vittetoe’s parents. Murray also emphasized that he intended to exercise his rights under the court order of custody unless the judge issued a new modifying order, with which he would comply.
Because Murray exercised his custody rights, the Missouri authorities issued an arrest warrant for parental kidnapping that authorized his incarceration for 36 days in an Iowa jail. His children were taken and placed in foster care with strangers for more than four months. Murray was eventually released, after which he appeared before a grand jury in Adair County, which dropped the charges against him. After his release, Murray filed a civil rights suit in the U.S. District Court for the Eastern District of Missouri, and Senior Judge Stephen Limbaugh was assigned. The case was dismissed on summary judgment, but an appeal to the 8th Circuit of the U.S. Court of Appeals followed, which itself was followed by an appeal to the U.S. Supreme Court, which declined the case without comment at the start of this present session.
Little did Murray realize that asserting his custody rights as specified in a Missouri court order of custody, would lead him to be a victim to a fundamental shift in our law. The 8th Circuit stated in its ruling, “Mr. Murray's proposed construction of the agreement is not altogether farfetched, but it is not the most reasonable one.” Prior to Murray’s case, a Missouri court order of custody was controlling over an administrative “safety plan” between a bureaucrat and the other parent. Before his case, government agents did not enjoy qualified immunity to arrest parents, seize safe and cared-for children and place them in foster care. Whether this case is an aberration or a shift in the law in favor of establishing a powerful unitary executive is presently unclear. The 8th Circuit is widely regarded as the most hostile circuit in the nation to individual rights. The Roberts Supreme Court is just as hostile to civil rights, with the exception of gun rights, while promoting the creation of corporate rights and displaying deference to executive powers over individuals. Leading members of the Supreme Court have espoused favorable approaches towards expanding the powers of a unitary executive.
Why the U.S. Supreme Court decided to avoid hearing a case where two federal circuits used directly contradictory approaches to the law is unclear. The right of parents to raise their children is no longer sacrosanct, and the attack by the 8th Circuit may be an alarming invitation for further erosion of parental rights or just a bizarre aberration affecting the citizens of seven states until the Supreme Court or Congress decides this is a conflict important enough to resolve.
Stephen Wyse is a Columbia attorney. He is also Ron Murray's civil rights attorney.