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« Reflections on 17th Anniversary of Domestic Relations Update | Main | Remedies Available Following Claim Of Fifth Amendment Privilege In Divorce »

March 13, 2008

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Dear Skaggs and Associates:
Maybe you can answer this question: How does a person's U.S. Constitutionally protected right to travel come into play in a relocation case? (I noticed that it has not come up in any published cases in our KY Courts). I am trying to relocate due to extreme financial concerns, have good faith for the move, and father is not very involved in their lives.The 5th Amendment does offer protections to our "life, liberty, or property," noting we cannot be deprived of any of them without due process of law. (I also understand that "the right to the care and custody of your child" is also protected)
...As the Supreme Court notes in Saenz v Roe, 98-97 (1999), the Constitution does not contain the word "travel" in any context, let alone an explicit right to travel (except for members of Congress, who are guaranteed the right to travel to and from Congress). The presumed right to travel, however, is firmly established in U.S. law and precedent. In U.S. v Guest, 383 U.S. 745 (1966), the Court noted, "It is a right that has been firmly established and repeatedly recognized." In fact, in Shapiro v Thompson, 394 U.S. 618 (1969), Justice Stewart noted in a concurring opinion that "it is a right broadly assertable against private interference as well as governmental action. Like the right of association, ... it is a virtually unconditional personal right, guaranteed by the Constitution to us all." It is interesting to note that the Articles of Confederation had an explicit right to travel; it is now thought that the right is so fundamental that the Framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights.
I understand that some courts take the stance that only a "compelling state interest" can trump those rights-is that true? AND if it is, then what EXACTLY constitutes that interest? In my opinion, it would have to be an endangerment model- because if you're going to take away someone's protected rights, then it better be substantial! Please, let me know what you think, I appreciate your consideration in advance!

I find your website helpful and very informative. I believe the reason relocation cases are difficult is because each case is highly fact specific, and must be examined carefully. Most importantly, judges, attorneys, custody evaluators and the like, must remain unbiased for the best outcome.Not all relocations are bad; some are absolutely necessary for survival.

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