In the past two decades, the area of family law has become increasingly infused with federal constitutional principles. Prior to this period, two factors—the fact that "family rights" are not explicitly mentioned in the Constitution and the tenth amendment's residuary power clause—combined to leave the area of family law under the exclusive jurisdiction of the states, with constitutional protections thought to be inappropriate if not inapplicable. Today, the clear trend has been in the direction of an increasing recognition and protection of family rights under the Constitution. This protection has taken two distinct but at times related forms: equal protection and due process. This analysis focuses solely on the second branch of these constitutional protections. Following the landmark case of Griswold v. Connecticut, in which the Court held that the fourteenth amendment's due process clause was applicable to the fundamental interest of marital privacy, the due process doctrine has been extended to a number of important, related rights, including the right of parents to rear their children. Since then, the Supreme Court has been confronted with a host of decisions asking it to define the parameters of what process is constitutionally due. In Lassiter, the Court applied the three-factor balancing test laid out in Mathews v. Eldridge to define what process is constitutionally due in the area of family rights. Santosky v. Kramer, a case in which the Court was asked to determine what standard of proof is constitutionally mandated in a termination of parental rights proceeding, presented the Court with another opportunity to apply the Mathews analysis in a matter of family law. This Note analyzes the Santosky decision, giving particular emphasis to its reconcilability with Lassiter. Additionally, an analysis of whether the Supreme Court went far enough in establishing the standard of proof is undertaken.
Patricia J. Falk,
Why Not Beyond a Reasonable Doubt? Santosky v. Kramer, 102 S. Ct. 1388 (1982),
62 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol62/iss3/6