BRUCE KIRKPATRICK, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE ROBERT E. GASTON, District Judge, Family Court Division, Respondents, and SIERRADAWN KIRKPATRICK CROW, Real Party in Interest
Kirkpatrick v. Eighth Judicial District Court ex rel. County of Clark
Before the Court En Banc.
BRUCE KIRKPATRICK, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE ROBERT E. GASTON, District Judge, Family Court Division, Respondents, and SIERRADAWN KIRKPATRICK CROW, Real Party in Interest.
BRUCE KIRKPATRICK, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE ROBERT E. GASTON, District Judge, Family Court Division, Respondents, and SIERRADAWN KIRKPATRICK CROW, Real Party in Interest.
No. 37593
March 14, 2003
64 P.3d 1056
Gayle F. Nathan, Las Vegas, for Petitioner.
Rebecca L. Burton, Las Vegas; Bruce I. Shapiro, Henderson, for Real Party in Interest.
Before the Court En Banc.
OPINION ON REHEARING
By the Court,
Shearing, J.:
On April 11, 2002, this court issued an opinion in this case granting the petition for a writ of mandamus. Subsequently, the real party in interest filed a rehearing petition. After reviewing the rehearing petition, as well as the briefs and appendix, we conclude that rehearing is warranted, and we grant the petition for rehearing. We now withdraw our April 11, 2002, opinion and issue this opinion in its place.
Bruce Kirkpatrick asked us to hold unconstitutional NRS 122.025, which permits a minor under the age of sixteen to marry with the consent of one parent and district court authorization. Under that statute, the district court permitted Kirkpatrick's fifteen-year-old daughter to marry a forty-eight-year-old man with the consent of her mother, but without the knowledge of her father. We conclude that NRS 122.025 is constitutional and that the district court was correct in denying Kirkpatrick's petition to annul his daughter's marriage. We, therefore, deny this petition for extraordinary relief.
FACTS
SierraDawn Kirkpatrick Crow is the daughter of Karen Karay and petitioner Bruce Kirkpatrick. In 1990, Karay and Kirkpatrick were divorced in California. As part of the divorce decree, Karay and Kirkpatrick were awarded joint legal and physical custody of SierraDawn. In 1992, Karay and SierraDawn moved from California to New Mexico. In December 2000, when SierraDawn was fifteen years old, she informed her mother that she desired to marry her guitar teacher, forty-eight-year-old Sauren Crow. SierraDawn's mother approved of the marriage. However, under New Mexico law, SierraDawn was not permitted to marry. Therefore, SierraDawn, her mother, and Crow traveled to Las Vegas where SierraDawn and Crow could marry, if granted permission by the court.
Karay filed a petition with the Clark County district court to obtain judicial authorization for SierraDawn's marriage. With the petition, Karay filed an affidavit consenting to the marriage, in which she stated that she has "seen no other couple so right for each other," that they "have very real life plans at home, in the town in which we all reside," and that "[t]heir partnership and their talents will be most effectively utilized by this marriage." The district court found that good cause existed under Nevada law for the marriage, and ordered that a marriage license be issued to SierraDawn and Crow. On January 3, 2001, SierraDawn and Crow were married in Las Vegas.
When Kirkpatrick first learned of SierraDawn's marriage, he sought an ex parte temporary restraining order in the New Mexico district court. That court granted the temporary restraining order, and awarded Kirkpatrick immediate legal and physical custody of SierraDawn. Four days later, however, the court rescinded its order because it found that SierraDawn's marriage was valid under Nevada law, and that SierraDawn was emancipated as a result of the marriage.
Kirkpatrick then asked the Clark County district court to vacate its earlier order authorizing SierraDawn's marriage and to annul the marriage. Following a hearing, during which Kirkpatrick was present and SierraDawn and Crow were physically absent, but were represented by counsel, the district court entered an order denying Kirkpatrick's motion. The district court concluded that the marriage complied with Nevada law and determined that Kirkpatrick lacked standing to challenge the marriage's validity.
Thereafter, Kirkpatrick filed this petition seeking a writ of mandamus to compel the district court to vacate its order authorizing SierraDawn's marriage and to annul the marriage.
DISCUSSION
A writ of mandamus is aváilable "to compel the performance of an act [that] the law [requires] as a duty resulting from an office, trust or station." But we will not issue a writ of mandamus to control a trial court's discretionary action unless the court has manifestly abused its discretion. Mandamus is an extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered. We will consider this petition because it raises important issues of public policy and challenges the constitutionality of a Nevada statute, which is applied in contexts wherein review may be evaded.
Kirkpatrick asserts that, because NRS 122.025 allows the court to approve the marriage of a person under the age of sixteen with the consent of only one parent, he has been deprived of his fundamental right to the parent-child relationship without a compelling reason. Kirkpatrick also maintains that his procedural due process rights were infringed because he was not provided with notice, with an opportunity to be heard, or with an opportunity to object to his daughter's marriage before the court authorized it. Thus, Kirkpatrick raises both substantive and procedural due process challenges to Nevada's marriage consent statute.
It is well settled that states have the right and power to establish reasonable limitations on the right to marry. This power is justified as an exercise of the police power, which confers upon the states the ability to enact laws in order to protect the safety, health, morals, and general welfare of society. Pursuant to this power, the Nevada Legislature enacted NRS 122.025, which states, in relevant part:
1. A person less than 16 years of age may marry only if he has the consent of:
(a) Either parent; or
(b) Such person's legal guardian,
and such person also obtains authorization from a district court as provided in subsection 2.
2. In extraordinary circumstances, a district court may authorize the marriage of a person less than 16 years of age if the court finds that:
(a) The marriage will serve the best interests of such person; and
(b) Such person has the consent required by paragraph (a) or (b) of subsection 1.
Kirkpatrick argues that this statute violates his constitutional interest in the care, custody, and management of his daughter since it neither requires his consent nor gives him an opportunity to be heard on the issue of his daughter's marriage. The United States Supreme Court has held that parents have a fundamental liberty interest in the care, custody, and management of their children. However, the United States Supreme Court has also held that, although these rights are fundamental, they are not absolute. The state also has an interest in the welfare of children and may limit parental authority. The Supreme Court has even held, where justified, that parents can be totally deprived of their children forever. If the state can completely eliminate all parental rights, it can certainly limit some parental rights when the competing rights of the child are implicated.
The United States Supreme Court has held that the right to marry is a fundamental right. In Zablocki v. Redhail, the Court stated:
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."
In Zablocki, when Wisconsin sought to restrict the right to marry, the Supreme Court said:
It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. . . . Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.
The Supreme Court has made it clear that constitutional rights apply to children as well as adults. In the case of In re Gault, the Court stated that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." In Planned Parenthood of Missouri v. Danforth, the Court stated, "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.' ' However, the Court has also recognized that states have the power to make adjustments in the constitutional rights of minors.
Marriage is the cornerstone of the family and our civilization. As marriage comprises the most sacred of relationships, the decision of whom and when to marry is highly personal, often involving reasons that are complex and vary from individual to individual. The decision to marry should rest primarily in the hands of the individual, with little government interference. As a society, we recognize that reasonable constraints on the right to marry are appropriate, especially when the marriage involves a minor.
There is no one set of criteria that can be set forth as a litmus test to determine if a marriage will be successful. Neither is there a litmus test to determine whether a person is mature enough to enter a marriage. Age alone is an arbitrary factor. The Nevada Legislature recognized that although most fifteen-year-olds would not be mature enough to enter into a marriage, there are exceptions. Nevada provided for the exceptional case by allowing a fifteen-year-old to marry if one parent consents and the court approves. The statute provides a safeguard against an erroneous marriage decision by the minor and the consenting parent, by giving the district court the discretion to withhold authorization if it finds that there are no extraordinary circumstances and/or the proposed marriage is not in the minor's best interest, regardless of parental consent. The statute strikes a balance between an arbitrary rule of age for marriage and accommodation of individual differences and circumstances.
Consent of both parents is by no means a constitutional requirement for even the most important of decisions regarding minors, as Kirkpatrick alleges. In Hodgson v. Minnesota, in declaring a two-parent notification requirement for an abortion unconstitutional, the United States Supreme Court stated:
It is equally clear that the requirement that both parents be notified, whether or not both wish to be notified or have assumed responsibility for the upbringing of the child, does not reasonably further any legitimate state interest. . In the ideal family setting, of course, notice to either parent would normally constitute notice to both. A statute requiring two-parent notification would not further any state interest in those instances. In many families, however, the parent notified by the child would not notify the other parent. In those cases the State has no legitimate interest in questioning one parent's judgment that notice to the other parent would not assist the minor or in presuming that the parent who has assumed parental duties is incompetent to make decisions regarding the health and welfare of the child.
Not only does two-parent notification fail to serve any state interest with respect to functioning families, it disserves the state interest in protecting and assisting the minor with respect to dysfunctional families.
The Hodgson Court went on to hold that two-parent notification "is an oddity among state and federal consent provisions governing the health, welfare; and education of children," such as enlisting in the armed services, obtaining a passport, participating in medical research, or submitting to any surgical or medical procedure. When the state requires the consent of only, one parent for significant events in a minor's life, the state implicitly recognizes the common reality of modern families. A significant percentage of children under the age of eighteen live in single-parent households. Furthermore, single-parent consent to a minor's marriage is common throughout the country, and none of these laws has been declared unconstitutional on the basis that the other parent did not consent. Nor have any courts held that a non-consenting parent's due process rights have been violated by failure to notify that parent of a child's desire to marry, with the consent of one parent. Kirkpatrick is making a unique argument without the support of case law.
Kirkpatrick asserts that he has been deprived of his fundamental right to the parent-child relationship, like the parents whose parental rights have been terminated. Contrary to what is apparently Kirkpatrick's view, the parental relationship does not end with the emancipation of a child. The only right that he has lost by his daughter's emancipation is his right to exercise legal control over his daughter during her minority. He still has all the other legal and social attributes of parenthood. Kirkpatrick retains the legal rights of inheritance, as well as all the bonds of love, care, companionship, and influence that any parents have after emancipation of their children. How he chooses to foster those bonds is up to him.
The Supreme Court has held that the usual standard for analyzing a substantive due process challenge to the constitutionality of a state statute that impinges on a fundamental constitutional right is whether the statute is narrowly tailored so as to serve a compelling interest. In family privacy cases involving competing interests within the family, however, the Court has deviated from the usual test. Various child rearing and custody cases demonstrate the Court's application of a more flexible "reasonableness" test, which "implicitly calibrates] the level of scrutiny in each case to match the particular degree of intrusion upon the parents' interests."
In this case, we have the interest of the daughter in marriage and the interest of the mother in her daughter's welfare and happiness balanced against the father's interest in the legal control of his daughter for the remainder of her minority. NRS 122.025 strikes an appropriate balance between the various interests. As the United States Supreme Court stated in Hodgson, "[n]or can any state interest in protecting a parent's interest in shaping a child's values and lifestyle overcome the liberty interests of a minor acting with the consent of a single parent or court." While the right involved in this case is different, the Hodgson language illustrates the fact that there is clearly a limit on a single parent's control. The state has a right to limit the right of a parent if the limitation strikes an appropriate balance between the various interests at stake. As the Supreme Court said in Michael H. v. Gerald D. in criticizing the dissent:
It seems to us that [the dissent] reflects the erroneous view that there is only one side to this controversy — that one disposition can expand a "liberty" of sorts without contracting an equivalent "liberty" on the other side. Such a happy choice is rarely available. . . . Our disposition does not choose between these two "freedoms," but leaves that to the people of California.
Nevada has an interest in promoting stable marriages, while not treating minors arbitrarily by denying them a right based solely on a few months' difference in age. In fact, at common law, although minors could not enter other contracts, they were allowed to contract for marriage at age twelve for a girl and age fourteen for a boy. Other state legislatures are free to set a different public policy for their states, but that does not invalidate Nevada's public policy.
Kirkpatrick alleges that even if NRS 122.025 does not infringe on his substantive constitutional rights, it still infringes on his procedural due process rights by depriving him of notice and the opportunity to be heard on whether his daughter should be allowed to marry. The United States Supreme Court made it clear in Hodgson that a two-parent notification requirement when a minor seeks to enforce a right is not necessarily required. The Court said that even though the other parent may have an interest in the minor's decision and full communication is desirable, "[t]he State has no more interest in requiring all family members to talk with one another than it has in requiring certain of them to live together.' '
The usual test that is cited to determine whether a litigant's procedural due process rights have been violated is set forth in Mathews v. Eldridge in the context of the deprivation of a property right. The factors the United States Supreme Court considers are:
First, the private interest that will be affected by the 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 fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
This test is really more appropriate in the context of the government deprivation of property rather than in the context of an intra-family dispute; however, applying the test still does not invalidate Nevada's procedures.
Kirkpatrick does have an interest in the control of his daughter, but her emancipation merely means that he no longer has the force of the law to enforce his rules and restrictions. He still has all the moral and social authority that comes with parenthood. Kirkpatrick has basically suffered no injury. The cases which have found that the parent has a right to be heard have all been in the context of a party outside the family seeking to deprive parents of control, not in the context of family members with competing interests. In the one context in which a right of parental notification regarding an important decision by a child has been litigated, the United States Supreme Court has concluded that the parent had no such right.
Under NRS 122.025, 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. Just because a litigant is unhappy with the outcome, does not mean that he has a right to be heard when appropriate safeguards are in place. The state also has an interest in fostering appropriate marriages and tailoring its statutes in such a way as to take into account the individual variations in maturity, rather than just setting an arbitrary rule of age. Requiring additional notices and hearings would be a financial and administrative burden, which would hinder the state policy of fostering appropriate marriages. Balancing the interests of the state and the minimal deprivation to Kirkpatrick, it cannot be said that Kirkpatrick has been deprived of procedural due process under either the United States or Nevada Constitutions.
Kirkpatrick also seeks to annul the marriage of his daughter. NRS 125.320(2) provides that a marriage obtained without parental consent may only be annulled ' 'upon application by or on behalf of the person who fails to obtain such consent." Thus, Kirkpatrick has no standing to annul his daughter's marriage.
For the foregoing reasons, we find that NRS 122.025 is constitutional, and therefore, the petition for a writ of mandamus is denied.
Rose and Maupin, JJ., and Young, Sr. J., concur.
Kirkpatrick v. Dist. Ct., 118 Nev. 233, 43 P.3d 998 (2002).
An exhibit to the petition for rehearing is an application for a marriage license in New Mexico, which was obtained after SierraDawn turned sixteen. A subsequent marriage under New Mexico law could render this case moot, but in view of the important constitutional issues raised and the prior opinion issued, we will consider this case.
At common law, marriage is generally sufficient to constitute emancipation. See 1 Donald T. Kramer, Legal Rights of Children § 15.04, at 672 (2d ed. 1994). Although NRS 129.080 provides that a child "who is at least 16 years of age, married or living apart from his parents . . . may petition the . . . court . for a [judicial] decree of emancipation," this statutory provision does not expressly abrogate the common law effect of marriage as emancipating a minor. It does not appear that judicial action is required for emancipation to occur. A judicial decree, however, provides an emancipated minor with tangible evidence of his or her emancipated status.
NRS 34.160.
Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).
Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).
See Binegar v. District Court, 112 Nev. 544, 548, 915 P.2d 889, 892 (1996).
SierraDawn contends that because Kirkpatrick did not raise these issues before the district court, these issues are not properly before us. See Wolff v. Wolff, 112 Nev. 1355, 1363-64, 929 P.2d 916, 921 (1996) (stating that an issue not raised in the district court is considered waived on appeal). Because this petition raises important constitutional issues, we will consider them. See McNair v. Rivera, 110 Nev. 463, 468 n.6, 874 P.2d 1240, 1244 n.6 (1994) (recognizing that this court can consider constitutional issues sua sponte).
Zablocki v. Redhail, 434 U.S. 374, 386 (1978).
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991) (plurality opinion).
See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also Troxel v. Granville, 530 U.S. 57, 65 (2000) (stating that "the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court"); Parham v. J. R., 442 U.S. 584, 602 (1979) (noting that "[o]ur jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children").
Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).
Lassiter v. Department of Social Services, 452 U.S. 18 (1981); see also Prince, 321 U.S. at 166 (recognizing that the state may require school attendance, vaccination, medical treatment, and regulate or prohibit child labor).
Santosky, 455 U.S. at 768-69.
Loving v. Virginia, 388 U.S. 1 (1967); Zablocki, 434 U.S. 374.
434 U.S. at 383 (quoting Loving, 388 U.S. at 12 (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942))).
Id. at 386 (citations omitted).
In re Gault, 387 U.S. 1 (1967).
Id. at 13.
428 U.S. 52, 74 (1976).
Ginsberg v. New York, 390 U.S. 629, 638 (1968).
Zablocki, 434 U.S. at 384.
Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974).
The United States Supreme Court has made clear that states can regulate marriage with respect to bigamy, incest, or underage marriages. See Zablocki, 434 U.S. at 392 (Stewart, J., concurring); id. at 399 (Powell, J., concurring); id. at 404 (Stevens, J., concurring).
497 U.S. 417, 450 (1990).
Id. at 454.
See Troxel, 530 U.S. at 64 (noting that in 1996, twenty-eight percent of all children in the United States under the age of eighteen lived with only one parent).
See, e.g., Cal. Family Code § 302 (West 1994); see also 1 Kramer, supra note 3, § 14.04, at 596.
See Washington v. Glucksberg, 521 U.S. 702, 721 (1997); accord Lulay v. Lulay, 739 N.E.2d 521, 529 (Ill. 2000); Wolinski v. Browneller, 693 A.2d 30, 37 (Md. Ct. Spec. App. 1997); see also John E. Nowak & Ronald D. Rotunda, Constitutional Law § 10.6(a), at 348 (5th ed. 1995).
See generally David D. Meyer, The Paradox of Family Privacy, 53 Vand. L. Rev. 527 (2000).
Id. at 546; see also David D. Meyer, Lochner Redeemed: Family Privacy After Troxel and Carhart, 48 UCLA L. Rev. 1125 (2001) (examining the Supreme Court's application of a "reasonableness" test when balancing competing liberty interests in femily-privacy jurisprudence); David D. Meyer, Family Ties: Solving the Constitutional Dilemma of the Faultless Father, 41 Ariz. L. Rev. 753, 838-43 (1999) (discussing whether the Supreme Court in family privacy cases applies a strict scrutiny standard or a reasonableness test).
497 U.S. at 452.
491 U.S. 110, 130 (1989).
State v. Wade, 766 P.2d 811, 815 (Kan. 1989) (noting that the common law still controls the minimum age for marriage).
See, e.g., Moe v. Dinkins, 533 F. Supp. 623 (S.D.N.Y. 1981), aff'd, 669 F.2d 67 (2d Cir. 1982).
497 U.S. at 450.
Id. at 452.
424 U.S. 319, 335 (1976).
Id. at 335.
Troxel, 530 U.S. 57; Santosky, 455 U.S. 745; Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
Hodgson, 491 U.S. 417.
The Honorable Cliff Young, Senior Justice, having participated in our prior decision of this matter and in our deliberations on rehearing as a Justice of the Nevada Supreme Court, was assigned to participate in the decision on rehearing following his retirement. Nev. Const, art. 6, § 19; SCR 10. The Honorable Mark Gibbons, Justice, did not participate in the decision of this matter.