OUR RIGHT TO BE A PARENT
Posted: Fri Aug 26, 2005 3:16 pm
The Constitutional Right to Be a Parent
Below are excerpts of caselaw from state appellate and federal
district courts and up to the U.S.
Supreme Court, all of which affirm, from one perspective or another,
the absolute Constitutional
right of parents to actually BE parents to their children.
The rights of parents to the care, custody and nurture of their
children is of such character that it
cannot be denied without violating those fundamental principles of
liberty and justice which lie at
the base of all our civil and political institutions, and such right
is a fundamental right protected by
this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441
F Supp 1247; U.S. D.C.
of Michigan, (1985).
The several states have no greater power to restrain individual
freedoms protected by the First
Amendment than does the Congress of the United States. Wallace v.
Jaffree, 105 S Ct 2479; 472
US 38, (1985).
Loss of First Amendment Freedoms, for even minimal periods of time,
unquestionably constitutes
irreparable injury. Though First Amendment rights are not absolute,
they may be curtailed only by
interests of vital importance, the burden of proving which rests on
their government. Elrod v.
Burns, 96 S Ct 2673; 427 US 347, (1976).
Law and court procedures that are "fair on their faces" but
administered "with an evil eye or a
heavy hand" was discriminatory and violates the equal protection
clause of the Fourteenth
Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).
Even when blood relationships are strained, parents retain vital
interest in preventing irretrievable
destruction of their family life; if anything, persons faced with
forced dissolution of their parental
rights have more critical need for procedural protections than do
those resisting state intervention
into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455
US 745, (1982).
Parents have a fundamental constitutionally protected interest in
continuity of legal bond with
their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .
The liberty interest of the family encompasses an interest in
retaining custody of one's children
and, thus, a state may not interfere with a parent's custodial rights
absent due process protections.
Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).
Parent's right to custody of child is a right encompassed within
protection of this amendment
which may not be interfered with under guise of protecting public
interest by legislative action
which is arbitrary or without reasonable relation to some purpose
within competency of state to
effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419,
appeal dismissed 98 S Ct
1598, 435 US 963, IL, (1977).
Parent's interest in custody of her children is a liberty interest
which has received considerable
constitutional protection; a parent who is deprived of custody of his
or her child, even though
temporarily, suffers thereby grievous loss and such loss deserves
extensive due process
protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div
2d 584, (1980).
The Due Process Clause of the Fourteenth Amendment requires that
severance in the parent-child
relationship caused by the state occur only with rigorous protections
for individual liberty interests
at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir
WI, (1984).
Father enjoys the right to associate with his children which is
guaranteed by this amendment
(First) as incorporated in Amendment 14, or which is embodied in the
concept of "liberty" as that
word is used in the Due Process Clause of the 14th Amendment and
Equal Protection Clause of
the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973).
"Separated as our issue is from that of the future interests of the
children, we have before us the
elemental question whether a court of a state, where a mother is
neither domiciled, resident nor
present, may cut off her immediate right to the care, custody,
management and companionship of
her minor children without having jurisdiction over her in personam.
Rights far more precious to
appellant than property rights will be cut off if she is to be bound
by the Wisconsin award of
custody." May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).
A parent's right to care and companionship of his or her children are
so fundamental, as to be
guaranteed protection under the First, Ninth, and Fourteenth
Amendments of the United States
Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at
489.
The Court stressed, "the parent-child relationship is an important
interest that undeniably warrants
deference and, absent a powerful countervailing interest,
protection." A parent's interest in the
companionship, care, custody and management of his or her children
rises to a constitutionally
secured right, given the centrality of family life as the focus for
personal meaning and
responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208,
(1972).
Parent's rights have been recognized as being "essential to the
orderly pursuit of happiness by free
man." Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).
The U.S. Supreme Court implied that "a (once) married father who is
separated or divorced from
a mother and is no longer living with his child" could not
constitutionally be treated differently
from a currently married father living with his child. Quilloin v.
Walcott, 98 S Ct 549; 434 US
246, 255^Q56, (1978).
The U.S. Court of Appeals for the 9th Circuit (California) held that
the parent-child relationship is
a constitutionally protected liberty interest. (See; Declaration of
Independence --life, liberty and
the pursuit of happiness and the 14th Amendment of the United States
Constitution -- No state
can deprive any person of life, liberty or property without due
process of law nor deny any person
the equal protection of the laws.) Kelson v. Springfield, 767 F 2d
651; US Ct App 9th Cir,
(1985).
The parent-child relationship is a liberty interest protected by the
Due Process Clause of the 14th
Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct
App 7th Cir WI,
(1985).
No bond is more precious and none should be more zealously protected
by the law as the bond
between parent and child." Carson v. Elrod, 411 F Supp 645, 649; DC
E.D. VA (1976).
A parent's right to the preservation of his relationship with his
child derives from the fact that the
parent's achievement of a rich and rewarding life is likely to depend
significantly on his ability to
participate in the rearing of his children. A child's corresponding
right to protection from
interference in the relationship derives from the psychic importance
to him of being raised by a
loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582,
595^Q599; US Ct App (1983).
A parent's right to the custody of his or her children is an element
of "liberty" guaranteed by the
5th Amendment and the 14th Amendment of the United States
Constitution. Matter of Gentry,
369 NW 2d 889, MI App Div (1983).
Reality of private biases and possible injury they might inflict were
impermissible considerations
under the Equal Protection Clause of the 14th Amendment. Palmore v.
Sidoti, 104 S Ct 1879;
466 US 429.
Legislative classifications which distributes benefits and burdens on
the basis of gender carry the
inherent risk of reinforcing stereotypes about the proper place of
women and their need for special
protection; thus, even statutes purportedly designed to compensate
for and ameliorate the effects
of past discrimination against women must be carefully tailored. the
state cannot be permitted to
classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440 US 268,
(1979).
The United States Supreme Court held that the "old notion"
that "generally it is the man's primary
responsibility to provide a home and its essentials" can no longer
justify a statute that
discriminates on the basis of gender. No longer is the female
destined solely for the home and the
rearing of the family, and only the male for the marketplace and the
world of ideas. Stanton v.
Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).
Judges must maintain a high standard of judicial performance with
particular emphasis upon
conducting litigation with scrupulous fairness and impartiality. 28
USCA §§ 2411; Pfizer v. Lord,
456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).
State Judges, as well as federal, have the responsibility to respect
and protect persons from
violations of federal constitutional rights. Gross v. State of
Illinois, 312 F 2d 257; (1963).
The Constitution also protects "the individual interest in avoiding
disclosure of personal matters."
Federal Courts (and State Courts), under Griswold can protect, under
the "life, liberty and pursuit
of happiness" phrase of the Declaration of Independence, the right of
a man to enjoy the mutual
care, company, love and affection of his children, and this cannot be
taken away from him without
due process of law. There is a family right to privacy which the
state cannot invade or it becomes
actionable for civil rights damages. Griswold v. Connecticut, 381 US
479, (1965).
The right of a parent not to be deprived of parental rights without a
showing of fitness,
abandonment or substantial neglect is so fundamental and basic as to
rank among the rights
contained in this Amendment (Ninth) and Utah's Constitution, Article
1 §§ 1. In re U.P., 648 P 2d
1364; Utah, (1982).
The rights of parents to parent-child relationships are recognized
and upheld. Fantony v. Fantony,
122 A 2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982).
State's power to legislate,
adjudicate and administer all aspects of family law, including
determinations of custodial; and
visitation rights, is subject to scrutiny by federal judiciary within
reach of due process and/or equal
protection clauses of 14th Amendment...Fourteenth Amendment applied
to states through specific
rights contained in the first eight amendments of the Constitution
which declares fundamental
personal rights...Fourteenth Amendment encompasses and applied to
states those preexisting
fundamental rights recognized by the Ninth Amendment. The Ninth
Amendment acknowledged
the prior existence of fundamental rights with it: "The enumeration
in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained
by the people." The United
States Supreme Court in a long line of decisions, has recognized that
matters involving marriage,
procreation, and the parent-child relationship are among those
fundamental "liberty" interests
protected by the Constitution. Thus, the decision in Roe v. Wade, 410
US 113; 93 S Ct 705; 35 L
Ed 2d 147, (1973), was recently described by the Supreme Court as
founded on the
"Constitutional underpinning of ... a recognition that the "liberty"
protected by the Due Process
Clause of the 14th Amendment includes not only the freedoms
explicitly mentioned in the Bill of
Rights, but also a freedom of personal choice in certain matters of
marriage and family life." The
non-custodial divorced parent has no way to implement the
constitutionally protected right to
maintain a parental relationship with his child except through
visitation. To acknowledge the
protected status of the relationship as the majority does, and yet
deny protection under Title 42
USC §§ 1983, to visitation, which is the exclusive means of effecting
that right, is to negate the
right completely. Wise v. Bravo, 666 F.2d 1328, (1981).
FROM THE COLORADO SUPREME COURT, 1910
In controversies affecting the custody of an infant, the interest and
welfare of the child is the
primary and controlling question by which the court must be guided.
This rule is based upon the
theory that the state must perpetuate itself, and good citizenship is
essential to that end. Though
nature gives to parents the right to the custody of their own
children, and such right is scarcely
less sacred than the right to life and liberty, and is manifested in
all animal life, yet among mankind
the necessity for government has forced the recognition of the rule
that the perpetuity of the state
is the first consideration, and parental authority itself is
subordinate to this supreme power. It is
recognized that: 'The moment a child is born it owes allegiance to
the government of the country
of its birth, and is entitled to the protection of that government.
And such government is obligated
by its duty of protection, to consult the welfare, comfort and
interest of such child in regulating its
custody during the period of its minority.' Mercein v. People, 25
Wend. (N. Y.) 64, 103, 35 Am.
Dec. 653; McKercher v. Green, 13 Colo. App. 271, 58 Pac. 406. But as
government should never
interfere with the natural rights of man, except only when it is
essential for the good of society,
the state recognizes, and enforces, the right which nature gives to
parents [48 Colo. 466] to the
custody of their own children, and only supervenes with its sovereign
power when the necessities
of the case require it.
The experience of man has demonstrated that the best development of a
young life is within the
sacred precincts of a home, the members of which are bound together
by ties entwined through
'bone of their bone and flesh of their flesh'; that it is in such
homes and under such influences that
the sweetest, purest, noblest, and most attractive qualities of human
nature, so essential to good
citizenship, are best nurtured and grow to wholesome fruition; that,
when a state is based and
builded upon such homes, it is strong in patriotism, courage, and all
the elements of the best
civilization. Accordingly these recurring facts in the experience of
man resulted in a presumption
establishing prima facie that parents are in every way qualified to
have the care, custody, and
control of their own offspring, and that their welfare and interests
are best subserved under such
control. Thus, by natural law, by common law, and, likewise, the
statutes of this state, the natural
parents are entitled to the custody of their minor children, except
when they are unsuitable
persons to be intrusted with their care, control, and education, or
when some exceptional
circumstances appear which render such custody inimicable to the best
interests of the child.
While the right of a parent to the custody of its infant child is
therefore, in a sense, contingent, the
right can never be lost or taken away so long as the parent properly
nurtures, maintains, and cares
for the child.
Wilson v. Mitchell, 111 P. 21, 25-26, 48 Colo. 454 (Colo. 1910)
Below are excerpts of caselaw from state appellate and federal
district courts and up to the U.S.
Supreme Court, all of which affirm, from one perspective or another,
the absolute Constitutional
right of parents to actually BE parents to their children.
The rights of parents to the care, custody and nurture of their
children is of such character that it
cannot be denied without violating those fundamental principles of
liberty and justice which lie at
the base of all our civil and political institutions, and such right
is a fundamental right protected by
this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441
F Supp 1247; U.S. D.C.
of Michigan, (1985).
The several states have no greater power to restrain individual
freedoms protected by the First
Amendment than does the Congress of the United States. Wallace v.
Jaffree, 105 S Ct 2479; 472
US 38, (1985).
Loss of First Amendment Freedoms, for even minimal periods of time,
unquestionably constitutes
irreparable injury. Though First Amendment rights are not absolute,
they may be curtailed only by
interests of vital importance, the burden of proving which rests on
their government. Elrod v.
Burns, 96 S Ct 2673; 427 US 347, (1976).
Law and court procedures that are "fair on their faces" but
administered "with an evil eye or a
heavy hand" was discriminatory and violates the equal protection
clause of the Fourteenth
Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).
Even when blood relationships are strained, parents retain vital
interest in preventing irretrievable
destruction of their family life; if anything, persons faced with
forced dissolution of their parental
rights have more critical need for procedural protections than do
those resisting state intervention
into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455
US 745, (1982).
Parents have a fundamental constitutionally protected interest in
continuity of legal bond with
their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .
The liberty interest of the family encompasses an interest in
retaining custody of one's children
and, thus, a state may not interfere with a parent's custodial rights
absent due process protections.
Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).
Parent's right to custody of child is a right encompassed within
protection of this amendment
which may not be interfered with under guise of protecting public
interest by legislative action
which is arbitrary or without reasonable relation to some purpose
within competency of state to
effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419,
appeal dismissed 98 S Ct
1598, 435 US 963, IL, (1977).
Parent's interest in custody of her children is a liberty interest
which has received considerable
constitutional protection; a parent who is deprived of custody of his
or her child, even though
temporarily, suffers thereby grievous loss and such loss deserves
extensive due process
protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div
2d 584, (1980).
The Due Process Clause of the Fourteenth Amendment requires that
severance in the parent-child
relationship caused by the state occur only with rigorous protections
for individual liberty interests
at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir
WI, (1984).
Father enjoys the right to associate with his children which is
guaranteed by this amendment
(First) as incorporated in Amendment 14, or which is embodied in the
concept of "liberty" as that
word is used in the Due Process Clause of the 14th Amendment and
Equal Protection Clause of
the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973).
"Separated as our issue is from that of the future interests of the
children, we have before us the
elemental question whether a court of a state, where a mother is
neither domiciled, resident nor
present, may cut off her immediate right to the care, custody,
management and companionship of
her minor children without having jurisdiction over her in personam.
Rights far more precious to
appellant than property rights will be cut off if she is to be bound
by the Wisconsin award of
custody." May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).
A parent's right to care and companionship of his or her children are
so fundamental, as to be
guaranteed protection under the First, Ninth, and Fourteenth
Amendments of the United States
Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at
489.
The Court stressed, "the parent-child relationship is an important
interest that undeniably warrants
deference and, absent a powerful countervailing interest,
protection." A parent's interest in the
companionship, care, custody and management of his or her children
rises to a constitutionally
secured right, given the centrality of family life as the focus for
personal meaning and
responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208,
(1972).
Parent's rights have been recognized as being "essential to the
orderly pursuit of happiness by free
man." Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).
The U.S. Supreme Court implied that "a (once) married father who is
separated or divorced from
a mother and is no longer living with his child" could not
constitutionally be treated differently
from a currently married father living with his child. Quilloin v.
Walcott, 98 S Ct 549; 434 US
246, 255^Q56, (1978).
The U.S. Court of Appeals for the 9th Circuit (California) held that
the parent-child relationship is
a constitutionally protected liberty interest. (See; Declaration of
Independence --life, liberty and
the pursuit of happiness and the 14th Amendment of the United States
Constitution -- No state
can deprive any person of life, liberty or property without due
process of law nor deny any person
the equal protection of the laws.) Kelson v. Springfield, 767 F 2d
651; US Ct App 9th Cir,
(1985).
The parent-child relationship is a liberty interest protected by the
Due Process Clause of the 14th
Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct
App 7th Cir WI,
(1985).
No bond is more precious and none should be more zealously protected
by the law as the bond
between parent and child." Carson v. Elrod, 411 F Supp 645, 649; DC
E.D. VA (1976).
A parent's right to the preservation of his relationship with his
child derives from the fact that the
parent's achievement of a rich and rewarding life is likely to depend
significantly on his ability to
participate in the rearing of his children. A child's corresponding
right to protection from
interference in the relationship derives from the psychic importance
to him of being raised by a
loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582,
595^Q599; US Ct App (1983).
A parent's right to the custody of his or her children is an element
of "liberty" guaranteed by the
5th Amendment and the 14th Amendment of the United States
Constitution. Matter of Gentry,
369 NW 2d 889, MI App Div (1983).
Reality of private biases and possible injury they might inflict were
impermissible considerations
under the Equal Protection Clause of the 14th Amendment. Palmore v.
Sidoti, 104 S Ct 1879;
466 US 429.
Legislative classifications which distributes benefits and burdens on
the basis of gender carry the
inherent risk of reinforcing stereotypes about the proper place of
women and their need for special
protection; thus, even statutes purportedly designed to compensate
for and ameliorate the effects
of past discrimination against women must be carefully tailored. the
state cannot be permitted to
classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440 US 268,
(1979).
The United States Supreme Court held that the "old notion"
that "generally it is the man's primary
responsibility to provide a home and its essentials" can no longer
justify a statute that
discriminates on the basis of gender. No longer is the female
destined solely for the home and the
rearing of the family, and only the male for the marketplace and the
world of ideas. Stanton v.
Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).
Judges must maintain a high standard of judicial performance with
particular emphasis upon
conducting litigation with scrupulous fairness and impartiality. 28
USCA §§ 2411; Pfizer v. Lord,
456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).
State Judges, as well as federal, have the responsibility to respect
and protect persons from
violations of federal constitutional rights. Gross v. State of
Illinois, 312 F 2d 257; (1963).
The Constitution also protects "the individual interest in avoiding
disclosure of personal matters."
Federal Courts (and State Courts), under Griswold can protect, under
the "life, liberty and pursuit
of happiness" phrase of the Declaration of Independence, the right of
a man to enjoy the mutual
care, company, love and affection of his children, and this cannot be
taken away from him without
due process of law. There is a family right to privacy which the
state cannot invade or it becomes
actionable for civil rights damages. Griswold v. Connecticut, 381 US
479, (1965).
The right of a parent not to be deprived of parental rights without a
showing of fitness,
abandonment or substantial neglect is so fundamental and basic as to
rank among the rights
contained in this Amendment (Ninth) and Utah's Constitution, Article
1 §§ 1. In re U.P., 648 P 2d
1364; Utah, (1982).
The rights of parents to parent-child relationships are recognized
and upheld. Fantony v. Fantony,
122 A 2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982).
State's power to legislate,
adjudicate and administer all aspects of family law, including
determinations of custodial; and
visitation rights, is subject to scrutiny by federal judiciary within
reach of due process and/or equal
protection clauses of 14th Amendment...Fourteenth Amendment applied
to states through specific
rights contained in the first eight amendments of the Constitution
which declares fundamental
personal rights...Fourteenth Amendment encompasses and applied to
states those preexisting
fundamental rights recognized by the Ninth Amendment. The Ninth
Amendment acknowledged
the prior existence of fundamental rights with it: "The enumeration
in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained
by the people." The United
States Supreme Court in a long line of decisions, has recognized that
matters involving marriage,
procreation, and the parent-child relationship are among those
fundamental "liberty" interests
protected by the Constitution. Thus, the decision in Roe v. Wade, 410
US 113; 93 S Ct 705; 35 L
Ed 2d 147, (1973), was recently described by the Supreme Court as
founded on the
"Constitutional underpinning of ... a recognition that the "liberty"
protected by the Due Process
Clause of the 14th Amendment includes not only the freedoms
explicitly mentioned in the Bill of
Rights, but also a freedom of personal choice in certain matters of
marriage and family life." The
non-custodial divorced parent has no way to implement the
constitutionally protected right to
maintain a parental relationship with his child except through
visitation. To acknowledge the
protected status of the relationship as the majority does, and yet
deny protection under Title 42
USC §§ 1983, to visitation, which is the exclusive means of effecting
that right, is to negate the
right completely. Wise v. Bravo, 666 F.2d 1328, (1981).
FROM THE COLORADO SUPREME COURT, 1910
In controversies affecting the custody of an infant, the interest and
welfare of the child is the
primary and controlling question by which the court must be guided.
This rule is based upon the
theory that the state must perpetuate itself, and good citizenship is
essential to that end. Though
nature gives to parents the right to the custody of their own
children, and such right is scarcely
less sacred than the right to life and liberty, and is manifested in
all animal life, yet among mankind
the necessity for government has forced the recognition of the rule
that the perpetuity of the state
is the first consideration, and parental authority itself is
subordinate to this supreme power. It is
recognized that: 'The moment a child is born it owes allegiance to
the government of the country
of its birth, and is entitled to the protection of that government.
And such government is obligated
by its duty of protection, to consult the welfare, comfort and
interest of such child in regulating its
custody during the period of its minority.' Mercein v. People, 25
Wend. (N. Y.) 64, 103, 35 Am.
Dec. 653; McKercher v. Green, 13 Colo. App. 271, 58 Pac. 406. But as
government should never
interfere with the natural rights of man, except only when it is
essential for the good of society,
the state recognizes, and enforces, the right which nature gives to
parents [48 Colo. 466] to the
custody of their own children, and only supervenes with its sovereign
power when the necessities
of the case require it.
The experience of man has demonstrated that the best development of a
young life is within the
sacred precincts of a home, the members of which are bound together
by ties entwined through
'bone of their bone and flesh of their flesh'; that it is in such
homes and under such influences that
the sweetest, purest, noblest, and most attractive qualities of human
nature, so essential to good
citizenship, are best nurtured and grow to wholesome fruition; that,
when a state is based and
builded upon such homes, it is strong in patriotism, courage, and all
the elements of the best
civilization. Accordingly these recurring facts in the experience of
man resulted in a presumption
establishing prima facie that parents are in every way qualified to
have the care, custody, and
control of their own offspring, and that their welfare and interests
are best subserved under such
control. Thus, by natural law, by common law, and, likewise, the
statutes of this state, the natural
parents are entitled to the custody of their minor children, except
when they are unsuitable
persons to be intrusted with their care, control, and education, or
when some exceptional
circumstances appear which render such custody inimicable to the best
interests of the child.
While the right of a parent to the custody of its infant child is
therefore, in a sense, contingent, the
right can never be lost or taken away so long as the parent properly
nurtures, maintains, and cares
for the child.
Wilson v. Mitchell, 111 P. 21, 25-26, 48 Colo. 454 (Colo. 1910)