The Constitutional Right to Travel

DiAnn Lindquist, Esq. (Colorado) makes the following argument in favor of custodial parent post-divorce relocations:

A citizen's right to interstate travel has long been recognized as a fundamental right, grounded upon the Privileges and Immunities Clause of Article IV, Section 2, of the United States Constitution. Edwards v. People of State of California, 314 U.S. 160, 173, 62 S.Ct. 164 (1941).

This principle encompasses the right of individuals to "migrate, resettle, find a new job, and start a new life." Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct 1322, 1329, 22 L.Ed.2d 600 (1969).

Edwards, Shapiro, and their progeny were concerned with the constitutionality of state statutes designed to discourage indigent people from relocating to their state of choice.

The Supreme Court consistently held the statutes to be unconstitutional, reasoning,

"...[t]he nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land, uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." Id.

The Court also held that the right of travel is "...a virtually unconditional personal right, guaranteed by the Constitution to us all." Id. at 643, 89 S.Ct. at 1336.

For the same reasons that a state cannot prohibit a person from moving to a particular area, it also cannot prohibit a person from moving from a particular area.

Strict Scrutiny

Court action that places restrictions on a citizen's fundamental rights requires application of the strict scrutiny test. Jones v. Helms, 452 U.S. 412 (1981); U.S. v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778 (1938).

Under strict scrutiny, the state must show that it has a compelling purpose for denying the fundamental right and that the remedy chosen is narrowly tailored to meet the stated purpose. Shapiro, 394 U.S. at 634, 89 S.Ct. at 1331.

Requiring a citizen to live in a specific locale, thereby restricting his or her fundamental right of travel, must be based on compelling state concerns. Hodgson v. Minnesota, 497 U.S. 417 (1990).

Parents also have a fundamental liberty interest in the care, custody, and management of their natural children, and due process must be provided when the state interferes with that relationship. Santosky v. Kramer, 455 U.S. 745 (1982).

This argument successfully was used in the mother's brief in the Colorado Supreme Court relocation case of Spahmer v. Gullette, decided June 5, 2005 (Barry Seidenfeld, Esq. and Anne Whalen Gill, Esq., counsel.)