Crime & Federalism

Departing from the Seventh Circuit's approach - which I covered here - today the Eighth Circuit held that non-custodial parents have a liberty interest in the care and upbrining of their children under two theories.  First, they have a liberty interest under the Yoder line of cases; second, they have one where state law affords visitation.  Here's the money languge:

The due process clause of the fourteenth amendment says, in relevant part, that no state shall "deprive any person of ... liberty ... without due process of law." U.S. Const. amend. XIV, § 1. To establish a procedural due process violation under this provision, a plaintiff must first show that the state infringed on a cognizable liberty interest. Cf. Clark v. Kansas City Mo. Sch. Dist., 375 F.3d 698, 701 (8th Cir. 2004). As a general matter, parents have a liberty interest in the "care, custody, and management of their children." Manzano v. South Dakota Dep't of Soc. Svcs., 60 F.3d 505, 509-10 (8th Cir. 1995). That said, in the past we have hedged on the question of whether non-custodial parents possess such an interest, and we have noted that the interest is subject to a de minimis exception: "Although we have recognized the possibility that visitation and placement decisions may be subject to due process scrutiny, as such decisions may infringe upon a parent's interest in the 'care, custody, and management of [his or her] child,' we have not yet found a case where the right to visitation was infringed in a manner that rose to the level of a constitutional violation."

Deputy Kofka draws on both strands of this statement from Zakrzewski. He contends that the Constitution did not protect Mr. Swipies's right to visit his daughter and that even if Mr. Swipies had a cognizable right to visitation, any infringement was so brief as not to be actionable. ...

We reject Deputy Kofka's initial argument and conclude that Mr. Swipies had a protected liberty interest. Though in Zakrzewski we did not rule on the question of whether a non-custodial parent has a liberty interest in the care, custody, and management of his or her child, we held in an earlier appeal in this case that Mr. Swipies possessed such an interest. Swipies v. Kofka, 348 F.3d 701, 703-04 (8th Cir. 2003). We are bound to follow this holding. It is not only the law of the case, see, e.g., Popp Telecom, Inc. v. American Sharecom, Inc., 361 F.3d 482, 490 (8th Cir. 2004), but the law of the circuit, i.e., a decision of another panel which only the court en banc may overturn, see United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005).

Even if our decision were not controlled by our previous holding, we would reach the same conclusion. If a state court affords a non-custodial parent visitation rights, we believe that the parent possesses, at least in some form, the liberty interest recognized in Manzano. A parent with visitation rights takes part in raising the child by making decisions about care, custody, and management during the period of the visitation, and thus he or she has the sort of parental role that deserves to be protected as a liberty interest.

Swipies v. Kofka, No. 04-3244, slip op. at 3-5 (8th Cir. Aug. 12, 2005). You can read the opinion here.