Constitutional Law Review Question

(Suggested Time: one hour) (50 out of 150 total exam points)

            Tom Morgan and Karen Carney were married in 2001. In 2002, Karen Carney gave birth to a son, Eric. Two years later she had a second child, Phillip. In 2006, Tom and Karen were killed in a plane crash. Tom and Karen left instructions that if anything should happen to them, they would like Karen’s brother, Dave, to raise their two sons. While Dave was unmarried and had no children of his own, Dave lived only two blocks away, saw the boys at least twice a week and was their favorite relative.

            Shortly after the plane crash, Dave Carney was awarded custody of Eric and Phillip and the boys went to live with him. Although Dave was at work during the day, a housekeeper looked after the boys until Dave returned from work. Eric and Phillip gradually adjusted to their parents’ death and took comfort in the secure, living environment provided by Dave Carney.


            In 2009, Dave Carney was injured when his car was involved in a head on collision with a drunk driver. As a result of the accident, Dave became a quadriplegic with paralyzed legs and impaired use of his arms and hands. Dave spent almost one year after the accident in a convalescent hospital undergoing physical therapy and learning to adjust to his physical limitations. During that year, Eric and Phillip lived with family friends, Jim and Ida Fisher.


            In 2010, Dave returned home and the boys returned to live with him over the objections of the Fishers. Dave has gradually adjusted to his new physical challenges. He has hired a live-in housekeeper to help him as well as the boys. He has returned to his job as a professor at a nearby university. He has had the entrance to his home as well as the interior modified so that he can easily navigate with his wheelchair. The boys, now 7 and 9 years old, have also adjusted to Dave’s physical limitations. They are both doing well in school and have many friends.


            Recently, Jim and Ida Fisher filed a petition with the Probate Court seeking custody of Eric and Phillip. In their petition, they argued that Dave’s accident is a material change in circumstance justifying a modification of the prior custody order awarding custody of Eric and Phillip to Dave. The Fishers argued that the boys are being deprived of many of the characteristics of a traditional upbringing because of Dave’s handicap. As a result of the accident, Dave is not able to feed himself or help the boys prepare meals or get dressed and he cannot participate in the numerous athletic activities which the boys enjoy. Dave has sought to retain custody of the boys, arguing that since 2006, when the boys first came to live with him, they have formed a strong family unit, based on both love and kinship.

            The competing petitions for custody of Eric and Phillip recently came before Judge Gordon Jackson of the Probate Court. Judge Jackson heard all the evidence in the case and decided to award custody of the two boys to the Fishers. In reaching a decision, Judge Jackson made the following remarks:

            The principle concern in any custody petition is the best interest of the child. There is no issue in this case as to the fitness of either Dave Carney or the Fishers to serve as custodial parents. Both Dave Carney and the Fishers are devoted to Eric and Phillip, and both would provide the boys with a suitable home and more than adequate financial support. However, in this case, while the evidence makes clear that Eric and Phillip love their uncle and he loves them, other factors must be considered. This Court feels that despite the strides that have been made in accepting persons with physical handicaps in this country, it is inevitable that Eric and Phillip will, if allowed to remain in their present situation, suffer from the limitations that their living situation is sure to involve. While Eric and Phillip can still talk to Dave, their relationship will no longer be a normal relationship like that of a “father” and his sons including playing baseball and going fishing.

            Dave Carney has appealed his loss of custody to the State Supreme Court. He argues that the Probate Court deprived him of custody of Eric and Phillip in violation of his rights under the Due Process and Equal Protection Clauses of the United States Constitution.

            You are a law clerk to one of the judges assigned to the case. The judge asks you to write an analysis detailing the due process and equal protection arguments that can be made by Dave Carney as well as the due process and equal protection arguments that can be made by the Fishers in defense of the constitutionality of the award of custody to them.