It is relatively rare for domestic relations cases to be decided by the Supreme Court of the United States. There is a reason for that. The United States Supreme Court long ago decided that matters concerning the management of the family were best handled by the states and their courts rather than the federal judiciary. Only when questions affecting the U.S. Constitution arise does the highest court in our country decide a question where family matters are involved.

This did occur last week when the Supreme Court heard argument in two cases: Camreta v. Greene and Alford v. Greene, 588 F.3d 1011 (9th Cir 2009).  Both cases come out of the state of Washington and both were heard in that state’s federal court. Both cases were then appealed to the U.S. Court of Appeals for the 9^th Circuit which covers the western United States. The U.S. Supreme Court decided that these cases warranted attention because there were important constitutional issues involved, 131 S. Ct. Reptr 456,457 (2010).

We all understand that we have freedom from unreasonable search and seizure by government personnel (usually police) investigating what they believe to be a crime. Since the late 1890s the United States has also adopted the view that people enjoy a right of privacy. Last, but not least, the U.S. Supreme Court has consistently held that people have a fundamental right to raise children in accordance with their wishes and that government intervention in family matters will be afforded the highest scrutiny.

The two cases argued last week involve government investigations into allegations that children were being abused by a parent. There are few subjects more problematic than family child abuse. First, children are usually unreliable witnesses. But as these cases properly observe; they are usually the only witnesses where parental abuse is alleged. Second, the parent who is not the subject of the allegations faces the worst dilemma a human being can endure. We may no longer love our spouse; we may not even like that person, but rarely does this attitude extend to the belief that a parent would physically abuse their own flesh and blood. But we all know it happens. Just not in our family.

In the Greene case it appears that investigators were contacted by a seven year old child’s school with information that the Father might have sexually abused the child. Both a law enforcement official and an employee from the county agency designated to investigate such allegations went to the child’s school to interview the child. The interview took place before any warrant was obtained nor was either parent notified that an investigation was underway.

As often occurs, the child gave conflicting statements as to what occurred, but the state prosecuted anyway. Ultimately, the Father was acquitted. At that time the mother sued the state for invading her child’s privacy and conducting and unreasonable search of her daughter without permission of either parent.

The question for the Court to decide is whether government officials have the right to interview your child without your permission, a warrant, court order or other exigent circumstances where it would be impossible to get those forms of permission. In this case, the individuals who did the interviews were state welfare officials and police officers. In theory, however, teachers, principals and guidance counselors are government officials, as well, so the decision could have a far wider impact than just the law enforcement community. In the second case, it was the child welfare authorities who questioned the child, not the police.

We have not read the briefs but from the reports we have examined on this issue it seems to have several red herrings. If a child witnessed an accident or was the victim of a crime not committed by a parent is parental permission or a warrant required to interview the child? The child is not the same person as the parent. Is there a higher level of due process required because the parent is an alleged perpetrator?  The answer should be negative.

Still, these are difficult questions. We live in an age when any parent could find that an altercation with the child results in the child complaining to school officials. They are required to report to law enforcement anything that they reasonably believe constitutes abuse. We have recently encountered this in cases where the child goes to school angry at a parent and decides to “report”. It puts school personnel in a precarious position as young children, in particular, are highly impressionable and not the best reporters of facts.

If you find yourself in this position, the typical response is to avoid seeking legal advice lest one “look guilty,” but these allegations are very, very serious and have both custodial and criminal implications that are quite far-reaching. Seek independent advice from an attorney before responding to any allegation that you have done harm to a child; even if you regard the allegation as frivolous.