Kirkpatrick v. Eighth Judicial District Court Ex Rel. County of Clark

64 P.3d 1056, 119 Nev. 66, 119 Nev. Adv. Rep. 8, 2003 Nev. LEXIS 10

• Court: Nevada Supreme Court
• Decided: March 14, 2003
• Docket: 37593
• Status: Published

Opinions

Agosti, C. J.,

with whom Leavitt and Becker, JJ.,

agree, dissenting:

I dissent. The majority has reached beyond the relief sought in the petition for rehearing. In her petition, SierraDawn admits that this court, in its earlier decision,¹ “wisely added procedural due process requirements to the statute and otherwise clarified the requirements for minors under the age of 16 wanting to marry. These requirements are appropriate and reasonable and provide the district courts with needed guidance.” Moreover, SierraDawn contends that “Kirkpatrick should be given the opportunity to be heard, [she] should be given an opportunity to be heard, and the district court should be given the opportunity to hear the evidence and make a decision” as to whether the marriage is void. SierraDawn simply asks that this court order a hearing so that she has an opportunity to establish that marriage is in her best interests and that her marriage should not be declared void. Thus, the only issue raised on rehearing is whether the district court should be required to conduct a new hearing. The majority opinion ignores the relief requested in the petition for rehearing and treats this case as though it were before the court for the first time. According to the majority, the sole issue before the court is whether NRS 122.025, the marriage consent statute, is constitutional.

In determining that the statute is constitutional, the majority purports to balance the competing interests of SierraDawn, Karay, and Kirkpatrick, but the majority fails to balance, or even appropriately recognize, the interests at stake. Marriage is a civil contract between parties with the capacity to contract.² A child under the age of eighteen has no capacity to contract absent some limited statutory authority.³ The majority acknowledges that states can place limitations on a minor’s ability to marry, yet in the same breath suggests that a minor has a fundamental liberty interest in marriage. But the Supreme Court has never declared or suggested that a minor has a fundamental right to marry. And Nevada’s statute, even if deemed constitutional, recognizes that a minor has no independent constitutional right to marry — the minor must obtain parental and court consent or have no right at all.

This limited statutory right cannot be equated with an adult’s fundamental marriage right. Even if a child could be deemed to have some constitutionally recognized interest in marriage, the United States Supreme Court has pointed to the following three reasons why children’s constitutional rights are not equivalent to those of adults: “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.”⁴ Our legal system recognizes time and time again that children are not capable of making all the decisions necessary to lead an adult life and are not vested with the same spectrum of constitutional rights afforded adults.⁵

The majority misses the mark with its citation to an abortion case, Hodgson v. Minnesota.6 Hodgson concluded that two-parent consent is unconstitutional when a minor seeks to enforce her right to obtain an abortion. Here, SierraDawn is not enforcing an abortion right, or, for that matter, any fundamental right as a minor. A minor’s right to have an abortion and the limited right to marry involve entirely different considerations. As the Supreme Court has aptly observed: “The abortion decision differs in important ways from other decisions that may be made during minority. . . . The pregnant minor’s options are much different from those facing a minor in other situations, such as deciding whether to marry.”⁷ A minor’s abortion decision concerns recognized privacy interests and must be made in a very limited period of time: “[a] pregnant adolescent. . . cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy.”⁸ The privacy and time concerns present in any abortion decision are absent in a decision to marry. A minor’s desire to marry implicates contracts, parental control and the adult responsibilities that arise in a marital relationship. If marriage is delayed, the minor may marry later, if she and her intended spouse continue to want such a relationship. Accordingly, with respect to abortion decisions, unlike other situations, a state may require parental notification or consent only if it also provides an adequate procedure for the minor to bypass her parent or parents and go directly to a court for permission to have an abortion.⁹

In Moe v. Dinkins,10 a federal district court rejected a constitutional challenge brought by a class of minors, to New York’s dual-parent marriage consent law. That court determined that the minors’ reliance on abortion and contraception cases was misplaced.¹¹ The court recognized that “[g]iving birth to an unwanted child involves an irretrievable change in position for a minor as well as for an adult, whereas the temporary denial of the right to marry does not.”¹² A minor’s inability to marry is not a total deprivation of a marriage right, but merely a delay. Thus, SierraDawn’s limited marriage interest cannot be equated with a minor’s interest in obtaining an abortion.

Further, Hodgson was an extremely divided opinion. The majority fails to recognize this important feature of the case. Although five members of the Court concluded that a two-parent consent requirement was unconstitutional, in large part because many American families have only one involved parent, five justices also concluded that the abortion statute’s bypass procedures rendered any constitutional concerns about two-parent notification moot because the minor could avoid notifying one or both parents. In light of this split, the Supreme Court affirmed in its entirety the Eighth Circuit’s judgment in the case.¹³ The Eighth Circuit’s judgment concluded that “ ‘ [considering the statute as a whole and as applied to all pregnant minors, the two-parent notice requirement does not unconstitutionally burden the minor’s abortion right.’ ”¹⁴

The two-parent statute in Hodgson, moreover, required a different analytical framework than the marriage consent statute at issue in this case. The Hodgson Court took issue with the abortion statute because of the problems inherent in obtaining consent from both parents when one parent is unavailable, disinterested, or caused the pregnancy. Here, the marriage consent statute, which requires only one parent to consent, is constitutional on its face, but unconstitutional when applied to deprive, with absolutely no procedural safeguards, a parent of his fundamental liberty interest. That parent’s consent is not the issue, for the district court must ultimately make the marriage determination. Instead, that parent’s right to notice and to participate in the proceedings must be considered.

Unlike SierraDawn’s limited marriage interest, Kirkpatrick’s interest in parenting his teenage daughter, which includes participating in her important life decisions, is a fundamental liberty interest.¹⁵ As the United States Supreme Court has recognized, “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”¹⁶ A parent’s protected interest does not end because of divorce or a child’s development,¹⁷ and parents do have the authority to control their children’s associates.¹⁸ Justice Stevens, in Hodgson, recognized that “the demonstration of commitment to the child through the assumption of personal, financial, or custodial responsibility may give the natural parent a stake in the relationship with the child rising to the level of a liberty interest.”¹⁹ Kirkpatrick is apparently a father who has been consistently eager to participate in his daughter’s upbringing. Until SierraDawn was married, Kirkpatrick shared joint legal and physical custody of SierraDawn. He had the right to spend time with and provide guidance to his daughter, and the right to participate in the important decisions that would shape her life. Clearly, Kirkpatrick’s interest in maintaining his parental relationship with his daughter warrants greater protection than fifteen-year-old SierraDawn’s limited interest in her desire to marry her forty-eight-year-old guitar teacher.

The only way to balance the interests at issue here and ensure that the district court makes an informed decision is to require the district court to give interested and involved parents like Kirkpatrick notice and an opportunity to participate before making its decision. The majority’s approach, which exalts a child’s limited interest in marriage over a parent’s constitutionally protected interest in raising the child, results in no balance at all — no recognition of Kirkpatrick’s protected constitutional rights, no constitutionally mandated procedural safeguards and no requirement that extraordinary circumstances and best interests be determined.

The majority erroneously analyzes Kirkpatrick’s procedural due process claim by misapplying the Supreme Court’s three-part test. Mathews v. Eldridge sets forth the factors that must be considered:²⁰

First, the private interest that will be affected by official action; second, the risk of an erroneous deprivation of [the private] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement[s] would entail.

Initially, the majority, in trying to avoid the obvious outcome in a Mathews analysis, incorrectly states, without citation, that the Mathews test is “really more appropriate in the context of the government deprivation of property rather than in the context of an intra-family dispute.”²¹ This court has consistently relied on Mathews when analyzing procedural protections when a liberty interest has been impinged upon.²² Other courts, including the Supreme Court, have applied Mathews when liberty interests were involved.²³

The majority then finds a creative, result-oriented path to reach its conclusion that no procedural due process violation occurred in this case. It characterizes Kirkpatrick’s interest as one of “control” and states that he “has basically suffered no injury” because he retains the (rather obtuse) “moral and social authority that comes with parenthood.”²⁴ Kirkpatrick has maintained an active role in SierraDawn’s life, and, until her marriage, their relationship was a continuous one. Because Kirkpatrick consistently demonstrated paternal commitment to SierraDawn, through custody and visitation, he has a fundamental liberty interest in the parent-child relationship.²⁵ Although the majority concludes that Kirkpatrick has suffered no real injury, he has lost his daughter. He no longer has the right to see her, to care for her, to have her live with him, or to participate in any of her important life decisions. How his interest in his daughter’s growth and development, and his concomitant loss of her companionship, can be characterized as “minimal” is bewildering.

The majority then completely dodges the second Mathews factor by stating that “the state has provided the protections against an erroneous outcome by requiring one parent’s consent, as well as a judicial determination of extraordinary circumstances, and the best interest of the minor.”²⁶ The majority does not even mention the risk that Kirkpatrick’s interest was erroneously deprived and what probable value additional safeguards would have provided. The focus of this second factor is the risk that Kirkpatrick was erroneously deprived of his parental interest. Given the utter lack of procedural protections here, the risk that Kirkpatrick was improperly deprived of his parental interest is great. He was not even given notice of SierraDawn’s marriage, much less an opportunity to be heard. Moreover, procedural safeguards would not only have enhanced the likelihood that Kirkpatrick’s rights as SierraDawn’s parent were not impeded without his knowledge, but also would have ensured that SierraDawn’s best interests were addressed, as required by the statute.

Finally, and ironically, the majority concludes that “ [Requiring additional notices and hearings would be a financial and administrative burden, which would hinder the state policy of fostering appropriate marriages.”²⁷ The majority puts the cart before the horse. If the state’s policy is to foster appropriate marriages, then requiring proper notice and a meaningful hearing in cases such as this would assist the state in determining whether the marriage is appropriate. The district court, in deciding whether to authorize the minor’s marriage, is required by Nevada’s statute to determine whether extraordinary circumstances exist and if the minor’s best interests are served by the proposed marriage. Suggesting that the court would be financially or administratively burdened by fully performing its task is ridiculous.

The Mathews factors all point to the same result. Under the circumstances presented here, Kirkpatrick was entitled to notice and a meaningful opportunity to be heard before the district court determined that SierraDawn could marry. Kirkpatrick was denied such protections, however, and his due process rights were violated.

The majority proclaims that by giving the district court the discretion to withhold authorization, the statute provides safeguards against erroneous marriages. According to the majority, the statute strikes a balance between the arbitrary rule of age and an individual’s choice to marry. Age is not arbitrary, however. The legislature has delineated various requirements that minors must meet in order to marry, based on age.²⁸ For a fifteen-year-old child, the legislature requires the district court to find extraordinary circumstances and that the marriage serves the child’s best interests. The majority opinion is necessarily devoid of any discussion concerning the district court’s finding of extraordinary circumstances or that the proposed marriage was in SierraDawn’s best interests, since no such circumstances existed. The district court did not even engage in this analysis. Thus, I do not see how the statute provided SierraDawn any protection.

The marriage consent statute includes a two-tiered approach: if one parent consents, then, “[i]n extraordinary circumstances, a district court may authorize the marriage of a person less than 16 years of age if the court finds that. . . [t]he marriage will serve the best interests of such person.”²⁹ Moreover, pregnancy alone does not establish that the minor’s best interests will be served by marriage, nor is pregnancy required by the court as a condition necessary for its marriage authorization.³⁰ Thus, under the statute, any judicial authorization must be based on the court’s determination that extraordinary circumstances warrant the marriage, and that the minor’s best interests will be served. If pregnancy, in and of itself, does not demonstrate that the minor’s best interests rest in marriage, .then “extraordinary circumstances” and “best interests” must mean that the circumstances justifying the marriage are extreme and unusual.

According to the documents before us, the district court had only Karay’s summary affidavit before it when it made its decision. The district court apparently relied exclusively on Karay’s observations that SierraDawn and Crow had “very real life plans,” and that Karay has “seen no other couple so right for each other.” Surely these cursory observations neither establish extraordinary circumstances, nor serve to demonstrate how the marriage is in SierraDawn’s best interests. Since Karay was not personally present before the district court when it granted the petition to marry, the court did not have an opportunity to investigate her credibility or motives. And, although there is an approximate thirty-year disparity between SierraDawn and Crow, and SierraDawn was only fifteen years old at the time, the district court failed to ask Karay more specifically why it was in SierraDawn’s best interests to marry Crow.

Even worse, the district court signed a basic form order granting the petition to marry. This form simply stated that “good cause exists under the Statutes of Nevada for the marriage of applicant to Sauren Crow.’ ’ The court did not interview the parties or conduct any meaningful hearing. Kirkpatrick was not even given notice of the proceedings, much less an opportunity to be heard on whether extraordinary circumstances existed or if SierraDawn’s best interests would be served. The majority puts a great deal of faith in the district court’s form order; it, along with Karay’s summary affidavit, represents the whole of SierraDawn’s statutory “protection.”

As the majority would have it, under Nevada’s marital consent statute, a father could permit his thirteen-year-old son to marry the son’s forty-two-year-old soccer coach, and the boy’s mother would have nothing to say about it. The mother, according to the majority, would have lost nothing but a desire to “control” her son.

Now, one parent, without the other parent’s knowledge, can turn what would otherwise be a crime worthy of headline news into state sanctioned, constitutionally protected conduct. I would point out that the Utah Court of Appeals recently upheld the conviction of a thirteen-year-old girl’s father, after concluding that the evidence supported a finding that the father knew and intended that the daughter have sexual intercourse with his forty-eight-year-old friend, the daughter’s alleged “husband.”³¹ There, the father conducted a ceremony to marry his young daughter to his friend. The father instructed the daughter that as a wife, she was expected to engage in sexual relations with her husband.³² Eventually, the daughter left the relationship and informed a law enforcement officer of the marriage and her sexual relations with the “husband.”³³ The father was arrested and convicted, after a jury trial, of three counts of child rape as an accomplice.³⁴ The “husband” was charged with child rape and fled the jurisdiction.³⁵ The father would have been completely protected from serious criminal liability, while at the same time achieving his objective of a consummated marriage for his daughter, had he simply brought her to Nevada and executed an affidavit, as Karay did, along with a petition to permit his daughter to marry.

The majority also fails to address the fact that Nevada’s marriage consent statute includes no minimum age for marriage.³⁶Under the statute, an eight-year-old child could marry a forty-year-old adult, with one parent’s consent and the district court’s authorization. If one parent petitioned, and a court, with no meaningful review of the case, authorized the marriage (as occurred here), then under the majority’s view, absolutely no one would be in a position to challenge it.

The majority insists that the intent of the marriage consent statute is to delineate the circumstances under which a minor under sixteen years of age may marry. Interestingly, the legislative history reveals that the actual impetus for passing the statute was money. In 1977, when the Nevada Legislature amended the marriage consent statute to allow a minor under the age of sixteen to marry with the consent of only one parent, the legislature made clear that the decision was driven by the Nevada Wedding Association’s successful lobbying efforts.³⁷ Apparently, during the late 1970s, because Nevada required both parents to consent to the marriage of a minor under sixteen, a small percentage of non-residents who came to Nevada to get married were turned away because they traveled with only one parent, or presented the signature of only one parent.³⁸ The legislature’s decision to amend the statute was determined by economics and certainly was not motivated by an attempt to balance the interests of parents and minor children. I seriously question whether the legislature would have passed the current statute had it foreseen the majority’s decision in this case.³⁹ Under these circumstances, I cannot understand how the majority can uphold the district court’s marriage authorization.

1 Kirkpatrick v. Dist. Ct., 118 Nev. 233, 43 P.3d 998 (2002).

2 State Farm Fire & Cas. Co. v. Platt, 4 F. Supp. 2d 399, 404 (E.D. Pa. 1998).

3 See, e.g., NRS 129.010 (providing that all persons who are eighteen years old and without legal disability, or who have been declared emancipated, are capable of entering into contracts and are held to be of lawful age).

4 Bellotti v. Baird, 443 U.S. 622, 634 (1979).

5 See, e.g., Goss v. Lopez, 419 U.S. 565, 590-91 (1975) (Powell, J., dissenting) (stating the importance of “the experience of mankind, as well as the long history of our law, recognizing that there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults. Examples of this distinction abound in our law: in contracts, in torts, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the right to vote and to hold office.”); Ginsberg v. New York, 390 U.S. 629 (1968) (upholding criminal statute that prohibited sale of obscene materials to minors when challenged under the First Amendment); Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding prohibition on child labor when challenged on First Amendment free exercise grounds).

6 497 U.S. 417 (1990).

7 Bellotti, 443 U.S. at 642.

8 Id.

9 Id. at 644, 647-48.

10 533 F. Supp. 623 (S.D.N.Y. 1981), aff’d, 669 F.2d 67 (2d Cir.1982).

11 Id. at 630.

¹²

13 Hodgson, 497 U.S. at 423.

14 Id. at 433 (quoting Hodgson v. Minnesota, 853 F.2d 1452, 1464-65 (8th Cir.1988)). Consequently, even if a two-parent abortion consent statute were at issue here, Hodgson would not mandate that we hold it unconstitutional.

15 See, e.g., Moore v. East Cleveland, 431 U.S. 494, 499 (1977) (recognizing a “ ‘private realm of family life which the state cannot enter’ ” (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944))); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (acknowledging that parents have the primary role to nurture and raise their children); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (recognizing interest of parent in companionship, care, custody and management of children); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) (recognizing that parents have a duty to prepare children for life’s obligations); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (stating that due process protects parents’ liberty interests in establishing a home and bringing up children).

16 Yoder, 406 U.S. at 232.

17 See, e.g., Prisco v. U.S. Dept. of Justice, 851 F.2d 93, 97 (3d Cir.1988), overruled on other grounds by Acierno v. Cloutier, 40 F.3d 597 (3d Cir.1994); see generally Margaret F. Brinig & F.H. Buckley, Joint Custody: Bonding and Monitoring Theories, 73 Ind. L.J. 393, 396 (1998) (“Joint custody means more than a sharing of physical custody, as parents must share the responsibility for the child’s upbringing. Both parents are to be consulted on major decisions, and each might veto the other’s decisions.” (footnote omitted)); Stephanie N. Barnes, Comment, Strengthening the Father-Child Relationship Through a Joint Custody Presumption, 35 Willamette L. Rev. 601, 612 (1999) (observing that joint legal custody allows parents to share major decisions concerning the child’s upbringing).

18 See Troxel v. Granville, 530 U.S. 57, 78 (2000) (Souter, J., concurring) (“The strength of a parent’s interest in controlling a child’s associates is as obvious as the influence of personal associations on the development of the child’s social and moral character. Whether for good or for ill, adults not only influence but may indoctrinate children . . . .”); Griggs v. Barnes, 78 So. 2d 910, 916 (Ala. 1955) (stating that “ ‘ “[t]he essence of custody is the companionship of the child and the right to make decisions regarding his care and control, education, health, and religion” ’ ” (quoting Guardianship of Smith, 255 P.2d 761, 762 (Cal. 1953) (quoting Lerner v. Superior Court, 242 P.2d 321, 323 (Cal. 1952)))).

19 Hodgson, 497 U.S. at 446 (opinion of Stevens, J.).

20 424 U.S. 319, 335 (1976).

21 See majority opinion ante p. 76.

22 See Matter of Parental Rights as to Daniels, 114 Nev. 81, 953 P.2d 1 (1998) (parental rights termination); Minton v. Board of Medical Examiners, 110 Nev. 1060, 881 P.2d 1339 (1994) (right to practice medicine); State Bar of Nevada v. Claiborne, 104 Nev. 115, 756 P.2d 464 (1988) (right to practice law); Tarkanian v. Nat’l Collegiate Athletic Ass’n, 103 Nev. 331, 741 P.2d 1345 (1987) (employment and reputation).

23 See John E. Nowak & Ronald D. Rotunda, Constitutional Law § 13.9, 599-606 (6th ed. 2000).

²⁴

25 See Hodgson, 497 U.S. at 445-46.

²⁶

27 See id. at 77.

28 See NRS 122.020(1) (marriage at eighteen years old); NRS 122.020(2) (marriage at least sixteen years old); NRS 122.025 (marriage under sixteen years of age).

29 NRS 122.025(1), (2).

30 NRS 122.025(2).

31 State v. Chaney, 989 P.2d 1091 (Utah Ct. App. 1999).

32 Id. at 1094.

³³

34 Id. at 1095.

35 Id. at 1102.

36 See NRS 122.025.

37 See Hearing on A.B. 298 Before the Senate Judiciary Comm., 59th Leg. (Nev., March 18, 1977).

38 Hearing on A.B. 298 Before the Assembly Commerce Comm., 59th Leg. (Nev., February 23, 1977).

39 Other states have enacted statutes that are in keeping with due process requirements. Some require both parents to consent to a minor child’s marriage, if both parents are available. See, e.g., Ga. Code Ann. § 19-3-37(b) (1999); Iowa Code § 595.2(4)(a) (2001); La. Child. Code Ann. art. 1545(A) (1995); see also N.J. Stat. Ann. § 37:1-6 (West 2002) (requiring that both parents consent unless one of them is “of unsound mind”). Another state requires that the court appoint an attorney guardian ad litem for the minor and consider the opinion of both parents when determining whether marriage is in the child’s best interests. See, e.g., N.C. Gen. Stat. § 51-2.1(a)(1) (2002). Indiana requires that both parents receive notice of the hearing regarding marriage authorization, if both parents are involved with the child and are competent to testify. Ind. Code § 31-11-1-6(2) (1997).