Nichole Walsch


In Weigand, the petitioner argued that the statute infringed on his due process and equal protection rights to the care, custody and control of his child and that it violated the open courts provision of the Missouri Constitution. This Note argues that the "balancing-of-interests" test applied by the Supreme Court of Missouri does not give parental rights the heightened scrutiny they deserve. In addition, the balancing test is problematic because it is extremely subjective and leaves the decision of constitutionality entirely up to judicial discretion. This Note also suggests that the court failed to give full weight to the procedural nature of the statute in holding that the statute did not violate the state constitution's open courts provision. The procedural, rather than substantive, nature of a statute is a factor that normally has considerable weight in open court challenges. Instead, the Supreme Court of Missouri applied a reasonableness standard that weakens the protection provided by the open courts provision found in Article 1, section 14 of the Missouri Constitution. This Note concludes that the court should have applied strict scrutiny, or at least a form of heightened scrutiny, to the due process and equal protection claims and probably should have struck down the statute because it was not narrowly tailored to achieve the state's interest. Also, the court should have found that the statute was arbitrary and unreasonable because it was mainly procedural in nature and therefore violated the open courts provision.

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