Yearning for Zion Ranch Raid: Lowering the Standard of Proof for the Termination of Parental Rights

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Parents have a constitutional right to the custody and control of their children, which encompasses the control over the religious upbringing of their children. Because this right is deemed to be fundamental, clear and convincing evidence of abuse must be demonstrated when the state seeks to terminate these parental rights. While this standard adequately protects the rights of the parents, it fails to adequately protect the rights of the children to be free from abuse.

In parental termination cases in a closed community where there is a pervasive belief system condoning sexual abuse of children, similar to that of the Yearning for Zion Ranch, the best procedure is to require clear and convincing evidence that abuse has occurred in some of the children as a result of this belief system. However, since this type of community resembles a family, it should be treated as a legal family. Thus, abuse found in one child in the community should be enough to remove the other children. In order to protect the interest of the children to be free from abuse, while still protecting the constitutional rights of parents to the custody of their children, the standard of proof required to remove the children who have not been abused should be the preponderance of the evidence standard. Therefore, to satisfy the burden of proof for parental termination, the state needs only prove that the children who have not been abused more likely than not will be abused because of the clear and convincing evidence of the actual abuse of other children in the compound.

By lowering the standard of proof required for termination of parental custody rights, the court will be protecting the rights of children to live free from the abuse of their parents. Although the First Amendment right of free exercise of religion and the Fourteenth Amendment parental due process right require preservation, their importance should not overshadow the need for the state to protect the welfare of children.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Brittany Nilson | Attorney Advertising

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