Posted by Michelle May O’Neil on May 2, 2011

The United States Supreme Court long ago decided that matters concerning the management of the family were best handled by the states and their courts rather than the federal judiciary. For that reason, it is fairly rare for domestic relations cases to be decided by the Supreme Court of the United States. When it comes to family matters, only when questions affecting the U.S. Constitution arise does it warrant the highest court in our country getting involved.

Last week, this rare occurrence did happen in two separate matters, both in the state of Washington. The Supreme Court heard argument in two cases: Camreta v. Greene and Alford v. Greene, 588 F.3d 1011 (9th Cir 2009).  Both were heard in that state’s federal court and both cases were then appealed to the U.S. Court of Appeals for the 9th Circuit which covers the western United States. The U.S. Supreme Court decided that these cases warranted attention because there were important constitutional issues involved, 131 S. Ct. Reptr 456,457 (2010).


It is a commonly known fact that we all have freedom from unreasonable search and seizure by government personnel. This usually applies to police investigating what they believe to be a crime, but is applicable to any government personnel. In the late 1890s the United States also adopted the view that people have the right to privacy. In addition, the U.S. Supreme Court has consistently held that people have the primary right to raise children in accordance with their wishes and that government interference in family matters will be subject to the highest scrutiny.


The two cases argued last week involve government investigations into allegations that children were being abused by a parent. There are few subjects more problematic than family child abuse. This is due to several factors, one of which is the issue that children are usually unreliable witnesses. But as these two cases properly observe; they are usually the only witnesses where parental abuse is alleged. Another issue is that the parent who is not the subject of the allegations faces the worst dilemma a human being can endure. We may not love, or even like our spouse anymore, but it is rare that an attitude would develop toward that person that would allow for the thought to be entertained of a parent actually being capable of physically abusing their own flesh and blood.  


In the Greene case it seems investigators were contacted by the school of a seven year old child. The school had information suggesting the Father might have sexually abused the child. Before any warrant was obtained and without notifying either of the child’sparents that an investigation was underway, a law enforcement official and an employee from the county agency designated to investigate such allegations went to the child’s school to interview the child.


Although the child gave conflicting statements as to what occurred, as is often the case, the state prosecuted anyway. Ultimately, the Father was acquitted. At that time the mother sued the state for invading her child’s privacy and conducting an unreasonable search of her daughter without permission of either parent.


The question for the Court to decide is whether government officials have the right to interview your child without your permission, a warrant, court order or other exigent circumstances where it would be impossible to get those forms of permission. In this case, the individuals who did the interviews were state welfare officials and police officers. In theory, however, teachers, principals and guidance counselors are government officials, as well, so the decision could have a far wider impact than just the law enforcement community. In the second case, it was the child welfare authorities who questioned the child, not the police.


There are difficult questions associated with these types of scenarios.  If a child witnessed an accident or was the victim of a crime not committed by a parent is parental permission or a warrant required to interview the child? The child is not the same person as the parent. Is there a higher level of due process required because the parent is an alleged perpetrator?  


We live in an age when any parent could find themselves in a situation where a child gets angry as a result of an altercation with their parent and complains to school officials. The school officials are required to report to law enforcement anything that they reasonably believe constitutes abuse. It puts school personnel in a precarious position as young children, in particular, are highly impressionable and not the best reporters of facts.


These allegations are very, very serious and have both custodial and criminal implications that are quite far-reaching. If you find yourself in this position, seek independent advice from an attorney before responding to any allegation that you have done harm to a child; even if you regard the allegation as frivolous.



Hat tip to Mark Ashton for his March 9, 2011 post

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.