In a recent court of appeals case, ENRIQUE M. v. ANGELINA V, a San Diego trial judge was affirmed after making a decision choosing which school the child would attend. The father contended that the choice proposed by mother substantially impacted his ability to parent the child, and failure to apply "strict scrutiny" to the choice deprived him of a fundamental right. The court selected the school proposed by mother, the school which many of the child's friends would be attending the following year, as being in the child's best interest.
In a 2000 case [Troxel], the US Supreme Court held that parents have fundamental rights subject to strict scrutiny, when weighed against the rights of grandparents who wanted to exercise visitation. Troxel held the order against the parents must be set aside or limited unless it serves a compelling purpose and is necessary to the accomplishment of that purpose.
In Enrique, our local court of appeal ruled that no such scrutiny is required in deciding between parents. In so doing, they held that the court was not required to make an order that treated the parents equally. Essentially, the best interest of the child controlled, not equality between the parents.
What does this mean in a particular case? No change, in my opinion. Judges have usually look at each custody or visitation case as unique, and try to decide what they think is in the best interest of the children. One parent will think the judge is biased or stupid, and the other thinks he or she is brilliant.
