Troxel II

A constitutional architecture for family court

The Due Process Project seeks to promote organizations that share a commitment to constitutional rights and community well-being. Each featured resource reflects work being done in response to the national family court crisis, grounded in Due Process and Equal Protection. Our goal is to connect families and communities with trustworthy, mission-aligned support.

Read Troxel II, authored by Dr. Daniel Sturtevant

Family court must operate on a constitutional foundation. Troxel II organizes that foundation into six stabilizers, each paired with its constitutional equivalent, so the entire structure can be seen clearly and applied in every state.

This is not a policy proposal. This is the Constitution, and its jurisprudence, organized and explained. It may serve as the baseline for the Model Code and a federal reform act that would restructure family court into a constitutionally compliant arm of government.

The six constitutional stabilizers

1. Presumption of parental fitness

Substantive due process. Fit parents are presumed to act in their children’s best interests. The state cannot override a fit parent’s decisions without meeting a constitutional threshold.

2. Constitutional threshold for state interference

Strict scrutiny and narrow tailoring. Before the state may interfere with the parent-child relationship, it must show a constitutionally sufficient justification and use the least restrictive means.

3. Equal standing of parents

Equal protection. Similarly situated parents must be treated equally. Courts cannot apply different standards to different parents without a lawful basis.

4. Parental duty to cooperate

The state’s authority to regulate conduct when narrowly tailored to a legitimate state interest. Parents have a duty to avoid conduct that causes demonstrable harm and to cooperate for the well-being of the child, and with lawful, narrowly tailored state processes designed to protect the child.

5. Nondelegation and auditable judicial power

Due process and separation of powers. Courts cannot hand judicial power to third parties without constitutional safeguards. Orders must be based on evidence, findings, and a record that can be reviewed.

6. Evidentiary accountability

Due process and the requirement of reliable, causally grounded evidence. Family-court decisions must rest on evidence that can be tested, not labels, impressions, or unreviewable professional assertions. Any restriction on a parent-child relationship must be grounded in specific conduct, supported by reliable evidence, and tied to a demonstrable causal nexus to concrete harm or risk.

Why these stabilizers matter

• Courts abandoned or never recognized the presumption of parental fitness.
• They replaced constitutional thresholds with discretionary standards.
• They treated parents unequally, based on personal opinions and judicial discretion.
• They delegated judicial power to unregulated actors.
• They misused “cooperation” as a subjective behavior test rather than a basic presumption.

Troxel II outlines the roadmap for restoring the constitutional architecture that already governs family-court decision-making. The project’s own five guardrails are on the solution page. The playbooks are on the resources page.