Lehman v. Lycoming County Children's Services Agency

OPINION ANNOUNCING THE JUDGMENT OP THE COURT GARTH, Circuit Judge. This case requires us to determine whether a petition for a writ of habeas corpus is available for a federal constitutional challenge to Pennsylvania’s statutory scheme for involuntarily terminating a parent’s rights in her children. We hold that habeas corpus is not appropriate for the constitutional challenge here, and thus we affirm the district court’s dismissal of Ms. Lehman’s petition. I. The facts giving rise to the instant petition are detailed in full in In re William L., 477 Pa. 322, 383 A.2d 1228, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978), the Pennsylvania Supreme Court decision which held that Ms. Lehman’s parental rights were properly terminated under a constitutional act. We recount some of the relevant circumstances drawn from the factual recital of that case, not to evaluate the merits of Ms. Lehman’s constitutional claims, but rather to determine whether these facts constitute an extraordinary case impinging with especial harshness, on personal liberty — the hallmark for determining whether the requirement for the habeas corpus has been satisfied. In June, 1971, appellant Marjorie Lehman, then age 39, was living with her three sons who are the subject of this proceeding: Frank, then age 7, William, then age 5, and Mark, then age 1. At that time she was pregnant with her youngest daughter Tracie. Tracie has lived with her mother since her birth. Ms. Lehman’s eldest child, Carol, has lived with Ms. Lehman’s parents for many years, and Ms. Lehman does not seek her return. In June, 1971, when pregnant with Tracie, Ms. Lehman voluntarily surrendered custody of her three sons to the Lycoming County Children’s Services Agency (the Agency). Ms. Lehman had come to the attention of the Agency sometime earlier as a result of the deplorable living conditions that obtained in her apartment. Ms. Lehman and the caseworker agreed that the home was unfit for children. After Tracie’s birth, the Agency helped Ms. Lehman find a new apartment. Ms. Lehman vacillated between seeking an apartment large enough to accommodate only herself and Tracie, and one large enough for the three boys as well. She ultimately selected one suitable only for Tracie and herself. The boys remained in foster care. In November, 1974, more than three years after she had surrendered custody of her sons, Ms. Lehman requested that the boys be returned to her. At the time, she was still in the apartment suitable only for Tracie and herself. The Agency, concluding that Ms. Lehman could not provide her sons with necessary support and supervision, declined to return them. The Agency then filed a petition in the Court of Common Pleas of Lycoming County under section 311(2) of the Pennsylvania Adoption [137] Act of 1970,1 seeking to terminate Ms. Lehman’s parental rights in the three boys, so that they could be placed for adoption without Ms. Lehman’s consent. Most of the evidence at the hearing on this petition consisted of the testimony of nutrition aides and caseworkers from the Agency who had visited with Ms. Lehman. After Tracie’s birth, nutrition aides began regular visits to Ms. Lehman’s home to help her maintain the household and raise her infant daughter. Ms. Lehman came to rely heavily on these aides to perform even the simplest tasks of everyday life. She made little or no progress in learning to handle problems without assistance. A series of incidents illustrates the depth of Ms. Lehman’s incapacity. On one occasion, Tracie was sent home from school because she had lice. The nutrition aide could not make Ms. Lehman understand the need to rid Tracie of the lice or how to perform the simple procedure to achieve this result. Ultimately, as Tracie became upset about missing school, the aide herself was forced to perform the treatments. On several occasions, Ms. Lehman has had her heat and electricity terminated for her failure to pay the bills. Once, Ms. Lehman sought emergency financial assistance to pay bills for rent, gas, water and electricity that she believed were due. On inquiry, the aide discovered that Ms. Lehman had already paid all of these bills. There was also other evidence of Ms. Lehman’s incapacity to conduct her financial affairs responsibly. She told the aides on several occasions of making payment for items, such as toys, that were never delivered. She also told them of turning over her social security checks, her sole source of income, to creditors who would cash the checks, deduct amounts allegedly owed, and return to Ms. Lehman the difference. As a result of Ms. Lehman’s incapacities and the long period — almost a decade— since her sons have lived with her, relations between Ms. Lehman and the boys have deteriorated. The boys visited their mother in her apartment twice a month during late 1975 and early 1976 under a court ordered visitation plan. Aides present during these visits described them as “free-for-alls” in which Ms. Lehman would chase, in succession, each of the children about the apartment seeking to establish control. The two older boys appeared to do no more than tolerate their mother. The youngest boy, who has lived with a foster family since his first birthday, spent these visits watching television. Each of the boys testified in chambers that he did not want to live with his mother. The oldest boy admitted that he would not obey his mother and that she could not control him. Other evidence at the hearing focused on Ms. Lehman’s intellectual and social skills. A psychologist who administered a series of tests reported that Ms. Lehman has a mental age of six years, ten months, and that her social skills and ability to function independently were those of a twelve year old. The psychologist opined that Ms. Lehman lacked the social and intellectual maturity necessary to raise children. Based on this testimony, the Court of Common Pleas found the appellant irremediably “incapable of providing minimal care, control and supervision for the three children.” In re William Lehman, Nos. 2986-88, slip op. at 4 (C.P. Lycoming Co., June 3, 1976). The court rejected Ms. Lehman’s argument that section 311 of the Pennsylvania Adoption Act was unconstitutionally vague. Accordingly, the Common Pleas Court terminated Ms. Lehman’s parental rights in her three sons, making them eligible for adoption. The Pennsylvania Supreme Court held that the adoption statute was neither unconstitutionally vague nor violative of substantive due process and [138] then found that the lower court’s termination of Ms. Lehman’s parental rights was supported by competent evidence,2 In re William L., All Pa. 322, 383 A.2d 1228, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978). Ms. Lehman’s petition for a writ of certiorari was denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978), and thereafter she filed a petition for a writ of habeas corpus “on behalf of” her three sons in the United States District Court for the Middle District of Pennsylvania.3 The petition asserted that the Pennsylvania Adoption Act was unconstitutional as applied and/or on its face, and sought the return of the children. It also sought a declaration that Ms. Lehman was their legal parent, or, in the alternative, the release of the children from the Agency’s custody unless within sixty days “a hearing is held in the appropriate state court and it is judicially determined to be in the best interests of The Children that temporary custody should remain with the [Ajgency.” The district court dismissed the petition for lack of jurisdiction, Lehman v. Lycoming County Children’s'Services Agency, No. 79-65 (M.D.Pa. Sept. 4, 1979), relying substantially on the holding of the First Circuit in Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978). On July 23, 1980 a divided panel of this court reversed the district court. It held that “federal habeas corpus jurisdiction may be invoked to challenge the constitutionality of a state statute by which the state has taken custody of children and has terminated without consent the rights of a natural parent to them.” Lehman v. Lycoming County Children’s Services Agency, No. 79-2466, slip op. at 24, (3d Cir. July 23, 1980), vacated and rehearing en banc granted (August 15,1980). Thereafter rehearing before the court en banc was ordered. II. A habeas corpus action differs from other constitutional challenges in one exceedingly important respect. All other litigational claims, constitutional and non-constitutional, are subject to the doctrine of res judicata. That principle precludes a litigant who has fully and freely pressed a claim or defense in one court from obtaining a second adjudication of that claim or defense.4 Society, and hence, the law has a critical interest in finality, which is the basis for the doctrine of res judicata. In normal litigation, our jurisprudence dictates that this degree of finality has been reached after consideration by a court of original jurisdiction and a court of review. Thus, [139] the doctrine of res judicata bars a cause of action that had earlier been determined in court, even if that determination was substantively in error. Habeas corpus, because it embodies considerations of personal liberty, is the major exception to this doctrine. The writ of habeas corpus recognizes however, that this interest in finality cannot transcend each and every other societal interest. It represents our society’s judgment that avoiding wrongful incarceration and unlawful restrictions on liberty outweighs the otherwise compelling interest in finality of litigation. Because this interest in personal liberty is one of our most highly valued constitutional rights, those who are in “custody” pursuant to a judgment of a court are, in almost all cases,5 permitted to raise their federal claims in federal court, even those claims had once before been adjudicated. As Justice Brennan wrote for the Supreme Court majority in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). “conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review.” Id. at 424, 83 S.Ct. at 841. While the ability to avoid res judicata is an extraordinary characteristic of habeas when the relitigation takes place within the same judicial system — that is, when a state court entertains the writ on behalf of a person in custody pursuant to the judgment of a court of that same state — the writ assumes even more profound implications when its operation cuts across the federal and state judicial systems. In this latter context, the writ empowers a single federal district judge to overrule determinations of federal issues which have been adjudicated by the highest court of a state. Sumner v. Mata, - U.S. -, 101 S.Ct. 764, 767, 66 L.Ed.2d 722 (1981). Thus, the assumption of habeas jurisdiction by a federal court on behalf of a party complaining of a judgment rendered against him by a state court, represents an unparalleled assertion of federal authority over the state judicial system. Such an intrusion upon state judicial authority deeply implicates the principles of comity and may impair the smooth workings of our federal system. The awesome power of the writ to avoid res judicata, and its implications for our federalism, demand that its use be confined to its proper role: the preservation of individual liberty and the relief from unlawful custody. This principle has been expressed by the Supreme Court in Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973): The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. Since habeas corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate. Id. at 351, 93 S.Ct. at 1574. (emphasis added). Other commentators have expressed similar sentiments: The historic custody requirement, although rooted in the procedural nature of the writ, took on a substantive character as habeas corpus came to be seen as an extraordinary remedy for the extraordinary restraints of custodial situations. The modern jurisdictional requirement [of custody] reflects this conception. Federal supervision of state judicial processes by means of the writ departs from traditional notions of deference owed state administration of federal law; problems of federalism aside, ordinary concepts of finality in the judicial process [140] are displaced by the continuing availability of habeas for review of restrictions imposed by the judgments of federal courts. Therefore the restraints which have been thought appropriate for review in habeas proceedings are those which impinge with especial harshness on personal liberty — those severe enough to warrant relitigation. Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1073 (1970) (emphasis added). The need to confine habeas to its proper sphere has become even more important as the scope of constitutional errors within its reach has expanded dramatically. See id. at 1041. In deciding whether habeas corpus lies to challenge a termination of parental rights, we must determine, then, whether such a case presents the same, strong claim for overriding the interest in finality as inheres in the plea of a prisoner that he has been incarcerated in violation of the Constitution of the United States. We think the answer is clear: it may not, and for much the same reasons as those expressed in Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978). The principal reason may be plainly stated: habeas lies to challenge unlawful custody, but unlawful custody is simply not the issue in a parental rights termination case. It is not the liberty interest of the children that is sought to be protected in such a case, but only the right of the particular parent to raise them.6 Such an interest is unrelated to the core concern of the writ of habeas corpus. A. The federal habeas corpus statute for state prisoners, 28 U.S.C. § 2254, establishes custody as the prime requisite for relief. The statute provides in relevant part: (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. (Emphasis added). While the Supreme Court has held that persons other than incarcerated prisoners may be in custody and hence has extended relief under the writ of habeas corpus to them, see Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), such cases present instances of actual restrictions on the petitioners’ individual liberty, all stemming from state criminal conviction. In Hensley v. Municipal Court, supra, the habeas petitioner had been released on his own recognizance after his state conviction and sentencing, but prior to the commencement of his incarceration. In holding that the petitioner was in custody, the first factor that the Court looked to was that he was “subject to restraints ‘not shared by the public generally.’ ” Id. at 351,7 93 S.Ct. at 1574. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) presented the situation of a state prisoner who was unquestionably in custody at the time when the district court and court of appeals considered his petition for a writ of habeas corpus. His petition was denied by the court of appeals and he then sought a writ of certiorari. Just prior to the granting of his petition for certiorari by the Supreme Court, Carafas was discharged from his parole status because his sentence had ex [141] pired. The Supreme Court held that Carafas’s case was not moot, and that Carafas was in custody within the meaning of the habeas corpus statute. The Court, in so holding, stressed that Carafas was subject to “collateral consequences,” id. at 237, 88 S.Ct. at 1559, and “is suffering, and will continue to suffer, serious disabilities.... ” Id. at 239, 88 S.Ct. at 1560. Jones v. Cunningham, supra, involved a petitioner who was on parole after serving part of a state prison term. The Court ruled that he was “in custody” because “the custody and control of the Parole Board involve significant restraints on petitioner’s liberty .. . which are in addition to those imposed by the State upon the public generally.” Id. at 242, 88 S.Ct. at 1561. Relating these principles to the Lehman family situation, it is immediately apparent that unlike Hensley, Carafas, and Jones, the three boys here suffer no restraints that can be equated to the restraints which permitted habeas corpus relief in those cases. If indeed a characteristic of habeas custody is that the restraint suffered is “not shared by the public generally,” Hensley at 351, 93 S.Ct. at 1574, see also Jones at 242, 83 S.Ct. at 376, we fail to understand how the situation of the three Lehman boys differs from the situation of other children in “the public generally” who are subject to parental or foster parental care and living arrangements. Thus this record discloses no restraint on liberty in terms of Hensley and Jones and no “collateral consequences” in terms of Carafas. Nor are we aware of any other expressions of federal habeas corpus “custody” which would include a child custody situation such as the one presented by Ms. Lehman’s petition. B. Sylvander v. New England Home for Little Wanderers, supra, is the only case that has analyzed whether the termination of parental rights meant that the children were “in custody” for habeas corpus purposes.8 The facts of Sylvander, are remarkably similar to those of this case. Gail Sylvander relinquished custody of her son, Michael, to the New England Home for Little Wanderers, a state licensed, albeit privately run institution.9 After Mrs. Sylvander rescinded her permission granting the Home the right to put her son up for adoption, that institution petitioned the Massachusetts Probate Court for authority to dispense with the mother’s consent to the child’s adoption. That court found that it was in the best interests of the child to be placed with prospective adoptive parents. The Supreme Judicial Court of Massachusetts affirmed the order of the probate court and rejected Sylvander’s argument that the statute’s standards were unconstitutional. Sylvander did not take an appeal to the United States Supreme Court, nor did she file a petition for certiorari. Instead she filed a petition for habeas corpus in the district court for the District of Massachusetts, joining with it a complaint pursuant to 42 U.S.C. § 1983. The district court dismissed her case, and the First Circuit affirmed. After concluding that res judicata barred the § 1983 action, the First Circuit then held that there was no custody for habeas corpus purposes. It pointed out that the Supreme Court “had never acknowledged that habeas corpus is an appropriate remedy for litigating federal constitutional [142] claims arising from child custody disputes.” Id. at 1110-1111. The First Circuit wrote: It is of course true that, although the wording of the federal habeas statute is tailored to fit state criminal proceedings, the habeas remedy has been made available in other contexts. What is not clear is that this case presents yét another situation to which that remedy should be extended. Here, the custody that the habeas petition seeks to challenge is a state’s assignment of the responsibility for the upbringing of a child to one person or another, in that child’s “best interests.” Michael is not a detainee or one undergoing some form of state-imposed restraint or disability, but rather is living with persons who have taken interim parental responsibility for him at the request of a private institution after a judicial determination that he may be adopted without parental consent. This is not the kind of custody that has traditionally prompted federal courts to assert their jurisdiction in the face of prior state adjudication. It cannot meaningfully be said that the person in custody — Michael — is being held against his will. The “rights” Ms. Sylvander now asserts on Michael’s behalf are chiefly her own — her rights as a mother not to be deprived of her child. Only speculatively are they the rights of the person in “custody.” Indeed, several years of state court litigation resulted in the determination that the Home, a charitable institution established to promote the welfare of children, is correct in arguing that Michael’s best interests lie in his being adopted. Thus, if this court were to recognize the availability of federal habeas in child custody cases, the proper party to seek the Great Writ on Michael's behalf in this case might as well be the Home as Ms. Sylvander. Id. at llll.9a The court concluded that: the question is who should bring Michael up. We do not think that Michael’s mother may avail herself of federal habeas corpus to litigate her right to do so. Id. at 1113. Similarly in this case, the Lehman boys are not “detainee[s]” nor are they “undergoing some form of restraint or disability.” Id. at 1111. “It cannot meaningfully be said that the” Lehman boys are “being held against [their] will.” Id. at 1111. Just as Ms. Sylvander essentially was asserting her own rights in her child, the rights Ms. Lehman asserts on behalf of her children are chiefly her own — her rights as a parent not to be deprived of her children. The “custody” of a foster or adoptive parent over a child is simply not the type of custody that may be challenged through federal habeas. Ms. Lehman attempts to distinguish the facts of the present case, involving the power of the state to extinguish the rights of a natural mother in her children, from the typical private custody dispute among parents. Yet such a distinction, in terms of the availability of habeas, cannot be sustained.10 In both instances a litigant uses the state’s judicial machinery to establish the litigant’s right to raise the child and to invalidate some other party’s right to do so. Thus, the status of the child is the same whether [143] determined in a “typical dispute between parents” or in a state parental right termination proceeding. If there is “custody” within the meaning of the habeas statute in the one instance, there must necessarily be “custody” in the other, because neither situation can be distinguished from the other in terms of the “extraordinary restraints,” 83 Harv.L.Rev. at 1073, that must be present to satisfy the custody requirement. In both instances, the child’s status at the completion of the action is the product of a state judicial decree.11 C. We recognize that outside the context of federal habeas which is extended to persons in custody pursuant to the judgment of a state court, habeas has seen a considerably expanded usage. Ms. Lehman, for instance, refers to the discussion in Jones v. Cunningham, 371 U.S. 236, 239, 83 S.Ct. 373, 375, 9 L.Ed.2d 285 (1963), and notes that under the English common law, habeas could be employed in custody disputes between warring parents. See R. Sokol, Federal Habeas Corpus § 6.1, at 73 (2d ed. 1969). Many states employ habeas for the same purpose. See discussion in Sylvander, 584 F.2d at 1110. But such cases are plainly inapposite to the question presented here. The use of habeas within a single, unified judicial system, that is, when the writ is extended by a federal court to a person in custody pursuant to the judgment of a federal court, or by a state court to a state prisoner, or by an English court to an English prisoner, does not implicate any concerns of comity. When one judicial system decides to subordinate the interest in finality to some other interest, that is its own prerogative. When the federal courts recognize the federal interest in liberty as. superior to the state interest in finality, we face a quite different problem, one which has the most profound implications for comity and federalism. As the First Circuit wrote in Sylvander: Federal habeas when applied to persons under state control is a procedure of unique potency within federal-state framework, having far different and more far-reaching consequences than a state’s utilization of habeas within its own system. State utilization of habeas to test the legal custody of a child is part of the fabric of its reserved jurisdiction over child custody matters. If a habeas remedy were not provided, some other procedure would be needed to effectuate the state’s substantive interest in these relationships. It is purely a matter of procedural detail whether the remedy is called “habeas” or something else. 584 F.2d at 1111. Thus, when we confine our review of the authorities only to those cases in which federal habeas has been extended to individuals in state custody, it is clear that none of the cases relied upon by Ms. Lehman for a broad reading of the term “custody” would find “custody” in the situation presented here, and thus would not authorize the use of the writ in the present case. D. Nor do policy considerations favor the availability of federal habeas in cases of this type. The child custody context is one where the interest in finality is especially weighty. It is widely recognized that children require secure, stable, long term and continuous relationships with their parents or the persons filling the role of parent. There is little that can be as detrimental to a child’s sound development as prolonged uncertainty over whom he is to regard as his parents. And yet prolonged uncertainty in family relations must be the inevitable outcome of allowing the relitigation in federal court through habeas, of federal constitutional issues that were once fully adjudicated in state court. As the First Circuit wrote in Sylvander, “[i]t is by no means clear that the welfare of children and fami [144] lies would be promoted by creating a right to litigate in two sets of courts instead of one, thus extending the potential duration of litigation in this area.” 584 F.2d at 1112. We must also recognize that the child (whose liberty interests we must presume to be implicated in order to find a basis for the extension of habeas, see note 6 supra) is little more than a pawn in the battle that engulfs him. Unlike the prisoner, who can control and direct the collateral attacks on his confinement, the child cannot call a halt to custody litigation whenever he sees fit. See Sylvander, 584 F.2d at 1112. The parties fighting over the right to raise the child will continue fighting, as Ms. Lehman has demonstrated, until there is no other forum in which they may do so. Providing another arena for this contest, by extending the federal writ of habeas corpus to custody actions, is hardly likely to serve the best interests of the child. See note 2 supra. Nothing we have discussed here, however, should be read as a suggestion that the great writ may never be available on behalf of a child. We have indicated earlier that this case does not involve incarceration or restrictions or restraints affecting the Lehman boys’ liberty — any of which conditions might well be sufficient for habeas to lie. “Were [the Lehman boys] incarcerated in a state home, or were there other issues making this truly a struggle for liberty by one imprisoned under the aegis of the state,” id. at 1113 (emphasis added), the writ might well be available. We hold only that parental rights termination suits, and other similar determinations of child custody, do not without more, provide a predicate for the use of federal habeas corpus. III. Ms. Lehman argues that she should be afforded habeas corpus review, otherwise a federal court will never hear the merits of her claim. Such an argument assumes that there is an inherent right to a litigant to have a federal court consider his federal claims. No such right exists. See Allen v. McCurry, - U.S. -, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Moreover, Ms. Lehman had a choice of two routes to a federal determination on the merits of her constitutional challenge and rejected both. The simplest and most direct route was Ms. Lehman’s right to appeal to the United States Supreme Court from the adverse judgment of the Supreme Court of Pennsylvania. By this means, Ms. Lehman could have immediately, and as a matter of right, obtained a decision from our highest court. She chose not to file an appeal, but, rather, simply petitioned for a writ of certiorari. Under 28 U.S.C. § 1257(2) (1976), a party who presents a federal constitutional challenge to a state statute (here, the Pennsylvania Adoption Act), and loses in state court, has the right to appeal to the United States Supreme Court. The Court’s appellate jurisdiction, of course, is nondiscretionary: the Court must determine cases falling within this jurisdiction on the merits, even though it need not give such cases plenary consideration. Hicks v. Miranda, 422 U.S. 332, 343-44, 95 S.Ct. 2281, 2288-2289, 45 L.Ed.2d 223 (1975). Thus, had Ms. Lehman invoked the Court’s appellate jurisdiction, instead of petitioning for certiorari, she would have obtained a ruling on the merits of her constitutional challenge. By deciding to forego an appeal and instead petitioning for certiorari, Ms. Lehman sought to avoid the res judicata effect that would attach to a summary affirmance on appeal, but not to a denial of certiorari. The second route to a federal resolution of the federal constitutional challenge is available by the litigant reserving the federal claims during the state court litigation, and then bringing a subsequent challenge to the state statutory scheme in federal court under 42 U.S.C. § 1983 (1976)., Such an approach is possible due to the limited res judicata effect accorded state court judgments in subsequent suits under § 1983, under the rule in this Circuit of New Jersey Educational Ass’n v. Burke, 579 F.2d 764 (3d Cir.), cert. denied, 439 U.S. 894, 99 S.Ct. 252, 58 L.Ed.2d 239 (1978).11a [145] Normally, res judicata bars the assertion of claims that were or could have been litigated in an earlier suit. In Burke, this court held that, in a later § 1983 suit, res judicata would apply only to federal claims that actually were litigated, rather than to those that could have been litigated, in the earlier state court suit. We said that “a state court judgment forecloses a § 1983 litigant from raising grievances in federal court only if such claims have been pressed before, and decided by, a state tribunal.” 579 F.2d at 774. We so held in order to give effect to the interest in providing a federal forum for the resolution of federal claims. Thus, Burke offered another federal route to resolve Ms. Lehman’s constitutional challenge to Pennsylvania’s statutory scheme for the termination of parental rights. Ms. Lehman could simply have withheld her federal constitutional claims in the state court proceedings, and then brought those claims in federal court under § 1983. Ms. Lehman, however, takes issue with the suggestion that § 1983 is an appropriate vehicle for a constitutional challenge in this custody setting. She objects, noting that such a procedure precludes state courts from addressing federal challenges to state statutes and procedures. She also points out that a § 1983 challenge would require duplicate litigation. To Ms. Lehman’s first objection, we note only that the interest in presenting federal constitutional challenges to state courts in advance of consideration in federal court is not an interest that applies in all types of cases; it is, rather, limited to constitutional challenges to custody within the meaning of habeas. A routine § 1983 action, such as a constitutional attack on a state Medicaid program, or a state statute providing for pre- or post-judgment garnishment, of course need not first be presented to the state courts. As long as custody within the meaning of habeas is not implicated, as it is not in this case, the exhaustion requirement has no place. The Supreme Court itself has entertained constitutional challenges to state custody procedures under § 1983, without any indication that the failure to give the state courts an opportunity to consider the federal constitutional questions was a bar to federal jurisdiction. See Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). To Ms. Lehman’s second objection, that a § 1983 challenge requires duplicate litigation, we observe that we have only urged that if a federal forum is desired, § 1983 is an appropriate means of gaining entry. We have by no means suggested that litigants in Ms. Lehman’s position ought to withhold their constitutional claims from the state courts and bring them in federal court later under § 1983. We believe that the state court is the appropriate forum for resolution of all aspects of these disputes, including the federal constitutional claims, although a litigant is not obligated to prosecute such constitutional claims in state court. Burke, as we have stated, gives a litigant such as Ms. Lehman a choice of fora for the determination of the federal challenge: she can raise federal constitutional issues in the state court, in which case she will be barred by res judicata from raising them in federal court, or she can reserve them in the state proceeding, and assert [146] them in federal court under § 1983.12 This scheme does not, however, give the litigant a right to have the claim determined both in state and federal court — a right that is available under habeas corpus, but unwarranted in this context. IV. We hold that custody disputes of the nature addressed here and which essentially involve no more than the question of who shall raise a child to maturity, do not implicate the federal interest in personal liberty sufficiently to warrant the extension of federal habeas corpus. Accordingly the order of the district court which dismissed Ms. Lehman’s petition for a writ of habeas corpus will be affirmed. Each party will bear its own costs. ALDISERT, JAMES HUNTER, III and WEIS, Circuit Judges, join in this opinion in all respects and also join in the concurring opinion of ADAMS, Circuit Judge. ADAMS, Circuit Judge, concurring, with whom ALDISERT, JAMES HUNTER, III and WEIS, Circuit Judges, join. The family relationship, whose origin is entirely independent of the state and whose rights are older than the Constitution itself, has been an unending source of sensitive legal problems. The present appeal compounds the delicate nature of the parent-child relationship with the intricacies of federal-state comity. Specifically before us is the question whether a federal court has jurisdiction to entertain an action based solely on the habeas corpus statutes, 28 U.S.C. §§ 2241 and 2254, brought on behalf of children by a parent claiming that the children are unconstitutionally confined. The application seeks the return of the children — although the children have expressed a wish-not to return1 — on the ground that parental rights were terminated pursuant to a state statute which allegedly violated the federal Constitution. I. No federal court has squarely held that it has jurisdiction over an action bottomed uniquely on habeas corpus in this type case.2 Nonetheless, it is admittedly arguable that the Lehman children technically fall within the literal language of the habeas statute. That is, in the words of the statute, they are conceivably “in custody pursuant to the judgment of a State court ... in violation of the Constitution,” and “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(a) and (b). However, attempts to ascertain the meaning of custody for purposes of the [147] Great Writ from the bare statutory language have, in the past, proven of little avail. As conceived by the Supreme Court, the writ “is not now and never has been a static, narrow, formalistic remedy.” Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). Yet our understanding of the writ is infused with its historic applications: “To determine whether habeas corpus could be used to test the legality of a given restraint on liberty, [the Supreme] Court has generally looked to common law usages and the history of habeas corpus both in England and in this country.” Jones v. Cunningham, 371 U.S. at 238, 83 S.Ct. at 374. But common law uses provide insufficient guidance in the present circumstances, first, because no federal system with its unique comity concerns existed at common law and second, because state child neglect and parental termination proceedings are predominantly tools of the modern state.3 It is true that certain early English common law cases considered habeas “a proper mode” to be utilized by parents to regain custody of children. But such an arrangement establishes no more than that one avenue of relief available at English common law was called habeas, whereas today such an approach has substantially been supplanted by statutory proceedings.4 Moreover, a reliance on the common law proves too much for Mrs. Lehman’s purposes. Indeed, Mrs. Lehman herself concedes that federal habeas jurisdiction should be limited, and suggests that courts erect a distinction between domestic relations disputes 5 and child custody or termination proceedings involving constitutional questions. Mrs. Lehman insists that unlike the private dispute in the ordinary domestic relations controversy which awards custody to a successful parent or relative, thus leaving the child within the family unit, in the present case it is the state which has permanently upset a family, leaving some of the children state wards. The English common law precedents,6 however, involve precisely [148] the intrafamily or private party disputes which Mrs. Lehman acknowledges should not fall within federal habeas jurisdiction. In America, the history of the jurisdiction of the federal courts to issue the writ of habeas corpus to persons alleging a custody in violation of federal law is one of carefully controlled statutory expansion. Originally, section 147 of the Judiciary Act of 1789 defined the substantive scope of the federal habeas power.8 Initially, only challenges to the jurisdictional competency of federal courts9 or to executive detentions without proper legal process10 were cognizable on habeas. Most significant for the present situation was the proviso precluding federal court scrutiny of state imprisonments. The statute declared “that writs of. habeas cbrpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.” 1 Stat. 81-82 (1789).11 While this limitation on federal habeas power was often merely implicit in the early cases, in Ex parte Dorr the Supreme Court made explicit that federal courts unqualifiedly lacked the power to issue a habeas corpus writ to any person in custody under a sentence or execution, whether civil or criminal, of a state court. [149] 44 U.S. (3 How.) 103, 105, 11 L.Ed. 514 (1845).12 Our understanding of federal habeas jurisdiction is further informed by Chief Justice Marshall’s explication in the landmark case of Ex parte Bollman, 8 U.S. (4 Cranch) 75,2 L.Ed. 554 (1807),13 of the character and scope of the writs federal courts were empowered to grant under section 14 of the 1789 Act. Chief Justice Marshall first noted that, unlike the common law, where the court’s power to issue a habeas writ was an inherent one, in the American system, judicial authority to grant the writ flowed solely from the statutory grant. Secondly, Chief Justice Marshall distinguished the generic term habeas corpus, which included every species of the writ,14 from the term habeas in its most important and constitutional sense, habeas corpus ad subjiciendum —the writ used in cases of criminal confinement at common law and the form which Mrs. Lehman seeks to employ here.15 “[W]hen used singly — when we say the writ of habeas corpus, without addition, we most generally mean that great writ which is now applied for [ad subjiciendum]; and in that sense it is used in the constitution.” 8 U.S. (4 Cranch) at 95. Certain guideposts, then, emerge from the analysis set forth by Chief Justice Marshall. Federal habeas power in the sense of the Great Writ is confined insofar as Congress establishes the bounds of the courts’ supervisory jurisdiction; 16 but the habeas corpus power is not a limited, auxiliary power, available only to aid the courts to exercise jurisdiction in cases which they are enabled to decide finally.17 Rather, once statutorily conferred, [150] habeas corpus is a distinct jurisdictional and remedial power to inquire into the cause of commitment. It embodies a court’s traditional authority to test restraints on liberty.18 Although a series of legislative amendments dealing with the usages of the Great Writ followed the enactment of the Judiciary Act of 1789,19 Congress in the course of passing such legislation in no way indicated a desire to embrace child custody concerns within the statutory scheme. The legislative history to the predecessor statute of 28 U.S.C. § 2254, the Judiciary Act of February 5,1867, quite significantly fails to mention challenges to termination of parental rights as among the intended uses of habeas. Passed in the wake of the Civil War, when Congress was anticipating resistance to its Reconstruction measures, the 1867 Act was proposed “to enable the courts of the United States to enforce the freedom of the wives and children of soldiers of the United States ... and also to enforce the liberty of all persons under the operation of the constitutional amendment abolishing slavery.”20 At that time, Congress was preeminently concerned with providing a federal forum for the constitutional claims of state prisoners and with establishing the principle that military authorities have no jurisdiction over private citizens.21 Even today, the habeas statute speaks in terms of “the rights of the prisoner,”22 thus continuing to reflect the specific thrust of the Judiciary Act of 1867. Of course, the original congressional purpose underlying the 1867 Act is not dispositive of the question presently confronting the Court; construction of the statutory phrase of “in custody” has evolved over time to embrace persons on parole,23 persons unconditionally released from prison after filing a habeas petition,24 persons released on their own recognizance,25 and persons on unattached, inactive army reserve duty.26 Nevertheless, the stamp of the criminal sanction pervades the overwhelming majority of habeas petitions, thus indicating the judicial and social perception of the scope of the Great Writ. Insofar as the use of habeas in a case such as the one at hand is not historically foreordained or legislatively mandated, it is appropriate to inquire whether existing proceedings circumscribing the termination of parental rights are constitutionally adequate, or whether children such as the Lehman children have an interest that merits the added safeguard afforded by the habeas writ.27 No empirical data has been brought [151] to our attention which would demonstrate that family unity is being seriously jeopardized as a result of state statutes or procedures which do not deal fairly and equitably with such matters. In this very case a review of the record in the state proceedings shows no cavalier disregard of parental rights on the part of the governmental agency or the state courts. All this is in sharp contrast with the situation that prevailed when the habeas statute was last given an expanded construction. At the time of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), few states had post-conviction hearing act procedures; thus federal habeas proceedings were necessary to assure appropriate protection of prisoners who were incarcerated without due deference to constitutional rights. Moreover, unless the federal courts were prepared to make their facilities available to vindicate such complaints it was at least doubtful, given the status of the complainants, that the legislative bodies would adequately respond to the problem.28 Under the circumstances, then, it would appear to be both unwise and impolitic for the federal courts to uncover a whole new font of jurisdiction at this time. Inasmuch as the Constitution specifically provides that jurisdiction for the lower federal courts should be conferred by the Congress, it would seem that a more prudent approach would be to permit Congress to determine whether § 2254 should be amended so as to empower the federal courts to enter the domain of child custody cases.29 II. Even assuming the propriety of extending jurisdiction under the federal habeas statute to the Lehman children, our inquiry does not end. Rather, what deserves special scrutiny here is whether it is proper for a mother in the posture of Mrs. Lehman to bring a habeas action on behalf of30 children in the present situation.31 [152] Normally, the law entrusts parents with providing for the basic needs of a child,32 and out of respect for the “integrity of the family unit”33 is reluctant to intervene in the private family domain. As the Supreme Court declared in Prince v. Massachusetts, “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). Concerns of social pluralism and social order underlie this legal deference to parental authority within the family. The state is foreclosed from imposing a single conception of the good life on its citizens, inasmuch as the institution of parental authority fragments decisionmaking concerning the goals of childrearing. At the same time parental authority functions to socialize children, encouraging conformity to cultural norms.34 It might thus not appear illogical that should the state break up this family unit, a parent would have standing to challenge the intrusion as an infringement of the parental interest, of the family’s interests, and, on the children’s behalf, of their interest in an intimate, ongoing association.35 But it is important to recognize that parents and children do not have identical interests. Clearly, the parental interest in the companionship, care and custody of the children is a strong one and is reciprocated by the child’s equally weighty interest in the nurture, love and instruction of the parents.36 However, the children have independent, private interests not necessarily shared by the parents,37 just as the parents have interests in the children that are not reflected by the children themselves.38 For example, in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), which held that the state may not impose a blanket provision conditioning an unmarried minor’s abortion decision on parental consent, the Supreme Court recognized the existence of a child’s privacy interest which the parent [153] could not purport to represent. The Court noted that “[a]ny independent interest the parent may have in the termination of the minor daughter’s pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant.” 428 U.S. at 75, 96 S.Ct. at 2834. Although an independent parental authority does exist which can be exercised for the sake of the parent rather than the child, the judiciary should be cautious in unquestioningly reinforcing such authority, especially in the context of terminations of parental rights.39 The existence of a “best interests of the child” standard, often used in domestic custody disputes,40 is a further recognition that minors have interests and constitutional rights separate from those of the parents. Whether the judicial scheme permits independent legal counsel for the child, thus acknowledging the inability of the parents or the court to represent fully the interests of the child,41 or retains the traditional model of the judge as parens patriae, protecting the child’s interest, it attests to divergencies in the parents’ and childrens’ interest.42 Additionally, the state itself has a stake in the child’s welfare. While the state’s interest does not necessarily mirror the child’s wishes, it similarly may not elide with the parent’s conception of what is best for the child43 Thus, despite society’s disinclination to subordinate parental prerogative to governmental authority, it has been recognized that the state can set limits on parental discretion when the physical or mental health of children is in jeopardy.44 It is in this context, then, that it is necessary to determine whether Mrs. Lehman can be presumed to be speaking “on behalf of” the children so as to merit extending the use of habeas to persons whose parental rights have been terminated. Although procedural protection can ordinarily be extended to one’s liberty interest without diminishing the substantive liberty of another, the present situation illustrates that this is not universally valid.45 Once a parent’s rights are terminated, a parent is no longer presumed to represent the inter [154] ests of the child.46 Even if we assume that the statute under which the termination occurred, and which survived attack in the state courts, is unconstitutional, it is highly possible that Mrs. Lehman, in challenging the statute ostensibly on behalf of the children, may actually be asserting an interest that derogates from the child’s interest.47 That is, the child’s interest in a sound family environment that the state statute was intended to protect may not be properly represented by the parent’s demand for family unity. The divergent interests between parent and child become clear when we focus on what Mrs. Lehman’s federal habeas claim addresses. She is not, in this proceeding, attempting to prove her fitness as a parent or even her right to permanent custody of the .children. Rather, she is attacking the state standard under which she was adjudicated “incapacitated” — a standard which, in light of traditional deference to family autonomy, we must assume was crafted to give leeway to parental authority while incorporating the community’s conception of minimally acceptable family conduct and the child’s interest in mental health and protection. In contesting the state statute which already embodies a balance between the needs of the parent and the child, Mrs. Lehman is potentially undercutting the child’s right and interest in a minimum parent-child relationship. It may be that Mrs. Lehman has standing to make this challenge to the statute as an infringement of her rights directly in state or federal courts, such as in a suit brought under § 1983. But what is questionable here is her right to resort to a habeas petition, which can be framed only on behalf of her children. Once Mrs. Lehman voluntarily relinquished custody of her children ten years ago, the presumption of family integrity was undermined. The long period of separation, and the development by the children of stable ties with a different set of persons in loco parentis, further underscores the potential discrepancies between the interests of Mrs. Lehman and her children.48 If Mrs. Lehman were to succeed in her habeas attack, a new state termination statute undoubtedly would be enacted to avoid the defects which Mrs. Lehman claims the present law possesses. Yet, upon reinstitution of the termination proceedings, Mrs. Lehman might well lose custody of her children once again. Inescapably, then, Mrs. Lehman’s interests and her children’s are not, in the context of this case, the same. While the intervention of the state via parental termination proceedings signals a potential nonalignment of the parent and [155] child’s interests, another element — the interest in finality — is likely to be valued quite differently by parent and child. The parent’s prime interest is theoretically in restoring family unity; the redundancy of habeas corpus and the prolongation of litigation is a burden which the parent may consider worth enduring for the sake of reestablishing parental rights. For the child, however, a prompt end to litigation and the clear establishment of a permanent association with a parent figure would seem to be the important goal.49 From this perspective, it would not appear that the writ of habeas is being exercised here on behalf of the children.50 This is especially so in a termination situation, where the unqualified ending of the original relationship offers the child an opportunity for an uninterrupted association following adoption by a new parent figure. Moreover, the prospect of a parent bringing a habeas petition on a child’s behalf years after the termination of parental rights, and years after the child has attained an established relationship with another parent figure, presents an even greater potential conflict between the parent and child’s interests.51 III. Accordingly, since it appears that a federal court does not have jurisdiction over the habeas petition in this case, and because even if it did it does not appear that Mrs. Lehman has standing to assert such an action on behalf of the three children, I would affirm the judgment of the district court. Footnotes [1] Section 311(2) of the Pennsylvania Adoption Act of 1970, 1 Pa.Cons.Stat.Ann. § 311(2) (Purdon Supp.1979), authorizes termination of parental rights on the ground that: The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent. [2] The Pennsylvania Adoption Act of 1970, under which Ms. Lehman’s parental rights were terminated, see note 1, supra, reflects the judgment that “a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.” In re William L., 477 Pa. 322, 345, 383 A.2d 1228, 1239, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978). In affirming the judgment of the lower court terminating Ms. Lehman’s parental rights in her three sons, the Pennsylvania Supreme Court held that this strict standard of parental incapacity had been satisfied. Id. at 341-52, 383 A.2d at 1237-43. In Pennsylvania, as in virtually all jurisdictions, the overriding concern in child custody proceedings is the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 107-08, 296 A.2d 625, 627 (1972); Commonwealth ex rel. Drum v. Drum, 263 Pa.Super. 248, 397 A.2d 1192, 1193 (1979). [3] A parent has standing to bring a habeas corpus action on behalf of her minor children. See, e. g., United States ex rel. Kirk v. Kirkpatrick, 330 F.Supp. 821 (E.D.Pa.1971); Hegwood v. Kindrick, 264 F.Supp. 720 (S.D.Tex.1967). The agency argued before the district court that because the state decree terminated Ms. Lehman’s parental rights, she lacked standing to file the habeas petition. The district court rejected that contention and it is not raised on appeal. [4] Normally res judicata bars the relitigation of claims that were raised or could have been raised at the first trial. We have accorded limited res judicata effect to state judgments in subsequent suits under § 1983, applying res judicata only to bar claims that actually were litigated. See New Jersey Educational Ass’n v. Burke, 579 F.2d 764 (3d Cir.), cert. denied, 439 U.S. 894, 99 S.Ct. 252, 58 L.Ed.2d 239. [5] Not every federal claim can be raised again. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), which involves search and seizure challenges under the Fourth Amendment. [6] Indeed, a fair reading of Justice Roberts’ thorough and thoughtful opinion for the Pennsylvania Supreme Court suggests that the Lehman boys might find a far greater restriction of their personal liberty in a judgment returning them to their mother’s custody than in the actual judgment severing Ms. Lehman’s parental rights, inasmuch as each of the boys expressed a clear preference for not living with his mother. In re William L., 477 Pa. 322, 343, 383 A.2d 1228, 1239, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978). [7] 'It also emphasized that its custody holding would not lead to a vast expansion of habeas jurisdiction. Id. at 353, 93 S.Ct. at 1575. [8] Other cases have assumed that habeas jurisdiction lies in this situation; Rouell v. Oesterle, 626 F.2d 437 (5th Cir. 1980); Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977), aff’d in part, remanded in part, 618 F.2d 374 (5th Cir. 1980), rehearing en banc ordered July 8, 1980; Smith v. Edmiston, 431 F.Supp. 941 (W.D.Tenn.1977); United States ex rel. Reed v. Tinder, No. 75-45 (S.D.W.Va.1975). Because of their conclusory nature, these cases are not helpful and of very little persuasive value. [9] It is of little importance that Sylvander involved a state licensed private agency, whereas in this case the Lycoming County Children’s Agency is a county institution. In neither case are there restraints present, let alone restraints which impinge with especial harshness on personal liberty, see 83 Harv.L.Rev. supra at 1073, the hallmark of custody in a habeas case. [9a] On page 160 of his dissenting opinion, Judge Rosenn asserts that “neither the [Sylvander] district court nor the First Circuit held that the children were not ‘in custody’ for the purposes of § 2254.” It is true that the district court for the District of Massachusetts so reasoned. It is not true that the First Circuit affirmed that reasoning. Contrary to Judge Rosenn’s impression of the court of appeals opinion, a fair reading of the passage quoted in text above from that opinion, indicates beyond question that the court of appeals in Sylvander held that “[tjhis is not the kind of custody that has traditionally prompted federal courts to assert their jurisdiction in the face of prior state adjudication.” 584 F.2d at 1111. [10] We recognize that there may be collateral differences between the termination of one parent’s custody with the consequent award of the child to the other parent in a typical parental custodial dispute, and the termination of a parent’s custody in a state termination proceeding. However, such differences that may exist are not significant in terms of habeas jurisdiction. Whatever effect they may have upon the parent-child relationship do not impact upon nor involve extraordinary restraints on liberty. [11] If we were to permit the use of habeas for state termination proceedings, we would necessarily be obliged to .permit the use of habeas for parental custody proceedings, thus opening the federal courts to a substantial number of matters which traditionally have been processed by state tribunals as matters of primary state concern. [11a] Judge Rosenn’s dissent in discussing the litigational strategy employed in a § 1983 action apparently takes issue with the holding of this court in New Jersey Educational Ass’n v. [145] Burke, 579 F.2d 764 (3d Cir.) cert. denied, 439 U.S. 894, 99 S.Ct. 252, 58 L.Ed.2d 239 (1978). We point out that we have referred to Burke only in connection with a possible alternative available to Ms. Lehman for a determination of her federal claims. The § 1983 route, as we have noted in text, was rejected by Ms. Lehman. It appears to us that Judge Rosenn is questioning, not our analysis of Burke, but rather the underlying holding of Burke. However, no issue implicating Burke’s holding has been presented to us on this appeal, and thus unless it is reconsidered and reversed by this court en banc, or rejected by the Supreme Court, Burke remains the law of this circuit. In this latter connection, we observe that the determination of this precise issue has been explicitly reserved by the Supreme Court in its recent opinion of Allen v. McCurry, - U.S. -,- n.5, n.10, 101 S.Ct. 411, 415, n.5, n.10, 66 L.Ed.2d 308 (1980). [12] Ms. Lehman in her brief suggests that § 1983 cannot provide a basis for the constitutional challenge raised here, and, indeed, that habeas is the exclusive route for such a suit, under the Supreme Court’s decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In Preiser, the Court held that habeas corpus was the exclusive remedy for a prisoner who sought to challenge the fact or duration of his imprisonment and who seeks, by way of relief, a judgment that he is entitled to immediate or speedier release. The Court held that § 1983 was an improper basis for such a suit. Ms. Lehman contends that, since her constitutional challenge seeks by way of relief the release of her children from the custody of the agency, Preiser controls and compels the conclusion that habeas corpus and not § 1983 is the only proper basis. This argument, once its initial premise is accepted, has a certain superficial appeal. But it is no more than another example of “how one goes in, determines how one comes out.” Her argument proceeds: since this suit challenges “custody” within the meaning of habeas, habeas is not only an appropriate route for the challenge, it is the exclusive route under Preiser. We find the converse of her argument, however, to be far more convincing: this action does not challenge “custody” within the meaning of habeas, thus, habeas is an inappropriate basis for the suit, and § 1983 remains available. Certainly nothing in Preiser precludes our view. Preiser involved a challenge to incarceration brought by an inmate placed in prison as punishment for criminal conduct. The present context, a child custody suit, is for reasons we have discussed earlier, outside the rule of Preiser. [1] See In re William ., 477 Pa. 322, 383 A.2d 1228, 1239 (1978). [2] See plurality op. ante at 141 n.8 (noting small number of courts that have assumed without discussion, in somewhat different contexts, that habeas jurisdiction lies). [3] The past century has witnessed the attenuation of extended kinship and tight-knit community ties with the consequent vulnerability of nuclear and one-parent families. As informal social supports for troubled families have diminished, the role of formal social institutions has increased. See D. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (1971). Cf. Ex parte Crouse, 4 Wharton 9 (Pa.1839) (Act of 1835 establishing House of Refuge for infants with incorrigible, vicious or morally depraved parents held constitutional). The habeas action brought by the father on behalf of the child in that case was denied. The 1835 Act was among the first of its kind. [4] See B. Sharpe, The Law of Habeas Corpus 169 (1976). Such proceedings include, for example, actions for adoption, custody, or guardianship. See also Stanley v. Illinois, 405 U.S. 645, 647 — 49, 92 S.Ct. 1208, 1210-11, 31 L.Ed.2d 551 (1972). [5] Plaintiff admits that it makes sense that “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States.” In re Burrus, 136 U.S. 586 at 593, 10 S.Ct. 850, at 852, 34 L.Ed. 500 (1890). PI. Brief at 20. In light of this concession and the continuing vitality of the general proposition articulated in In re Burrus — that traditionally questions concerning “the custody and guardianship by the parent of his child” do not arise under the Constitution, laws or treaties of the United States, see 136 U.S. 586 at 596, 10 S.Ct. 850, at 853, 34 L.Ed. 500 — we are somewhat at a loss to understand the attack mounted against Solomon and Burrus by Judge Gibbons. See dissent infra at 173 n.8. Neither Burrus nor Solomon involved a federal claim or constitutional question. We fully agree that there are aspects of family life that are not immune from constitutional protection. Such issues are properly raised by stating a cause of action under 42 U.S.C. § 1983 or directly under the Constitution as suggested in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979); Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); and Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). Mrs. Lehman is not presently asserting a claim in a § 1983 action or directly under the Constitution; rather, she has brought a complaint, bottomed solely on habeas corpus jurisdiction, seeking custody of her children. [6] See Lyons v. Blenkin, 1 Jac. 245, 37 Eng.Rep. 842 (Ch.1821) (an English case holding that habeas is the proper mode for a father to regain custody of his child from an aunt); In re Matthews, 12 Ir.R.C.L. 233 (1859) (another English case in which the writ of habeas issued at the [148] instance of a mother claiming the legal right to her infant who was then in the custody of a nurse). [7] Judge Gibbons contends that section 14 is not a jurisdictional statute. That section is, however, part of the first grant of federal court jurisdiction, Act of September 24, 1789. See Fay v. Noia, 372 U.S. 391, 400, 83 S.Ct. 822, 828, 9 L.Ed.2d 837 (1963). It is also the ancestor of 28 U.S.C. § 2241 which we understand to confer jurisdiction, as well as remedial powers, when the conditions defined in that section are found to exist. In Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), the Supreme Court noted that at least since 1842, the power of courts and judges to issue the Great Writ of habeas corpus had been subject to jurisdictional limitations, whereas the “all writs” power of courts, much like the judicial power in the English system, was without such limitations. 364 U.S. 611, 615-20, 81 S.Ct. 338, 340-43, 5 L.Ed.2d 329. However, we are not dealing here with an ad prosequendum or an ad testificandum writ, nor do we have jurisdiction premised on some other source, which this Court might then choose to enforce by means of a writ. We assume this is what Judge Gibbons’ dissent is addressing insofar as he suggests that habeas may be a remedy. The complaint filed by Mrs. Lehman is grounded jurisdictionally solely on the habeas statute, 28 U.S.C. §§ 2241, 2254. It is not based on a 42 U.S.C. § 1983 claim alleging jurisdiction under 28 U.S.C. § 1343(a), nor has Mrs. Lehman presented this Court with any other basis such as diversity, for jurisdiction. Cf. Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509 (2d Cir. 1973) (diversity jurisdiction). [8] Section 14 provided: That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the Supreme Court, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment: provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. Act of September 24, 1789, ch. 20 § 14, 1 Stat. 73, 81-82 (1789). [9] See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 100, 2 L.Ed. 554 (1807). [10] See Ex parte Randolph, 20 F.Cas. 242 (C.C.D.Va.1833). The dissent of Judge Rosenn argues that Ex parte Randolph supports the proposition that habeas will lie regardless whether the custody is civil or criminal. While the Randolph court suggested that habeas corpus might apply to a person imprisoned under civil process at the federal level, the court carefully noted that the case before it involved the abuse of process by an executive official, under a special jurisdiction, “which can neither be supervised by certiorari, or re-examined by writ of error.” 20 F.Cas. 242, 253 (C.C.D.Va.1833). [11] As Chief Justice Marshall explained in Ex parte Bollman, a logical construction of the statute required that the proviso be read to apply to both the courts enumerated in the first sentence and the justices and judges in the second sentence. 8 U.S. (4 Cranch) 75, 98, 2 L.Ed. 554 (1807). [12] In Ex parte Dorr, 44 U.S. 103, 11 L.Ed. 514 (1845), Dorr sought to challenge his life imprisonment for levying war against Rhode Island on the ground that the state statute under which he was prosecuted was unconstitutional inasmuch as treason could not be committed against a state. The conclusion in Ex parte Dorr tends to undercut Judge Rosenn’s attempt to give a broad reading to the type of “commitment” comprehended by the second sentence in the 1789 Act. [13] Ex parte Bollman and Swartwout involved a petition for habeas by the alleged seditious co-conspirators of Aaron Burr, who had been denied bail prior to trial. [14] These include ad respondendum, used when a party wishes to initiate suit against a person already confined by the process of an inferior court; ad satisfaciendum, which enabled one court to award execution on the judgment of another court at common law; ad prosequendum, testificandum, and deliberandum, \yhich issue to remove a prisoner in order to prosecute or to testify in any court, or to be tried in the proper jurisdiction; and the common law writ of ad faciendum et recipiendum, “to do and receive whatever the king’s court shall consider in that behalf.” Ex parte Bollman, 8 U.S. (4 Cranch) 75, 96-97, 2 L.Ed. 554 (1807). As explained in Carbo v. United States, “Although our own practice has limited the jurisdiction of courts and justices to issue the Great Writ, we have never abandoned the English system as to the ad prosequendum writ.” 364 U.S. 611, 620, 81 S.Ct. 338, 343, 5 L.Ed.2d 329 (1960). Because state courts are not inferior courts — except in the situations where appeals lie to the United States Supreme Court — many uses to which these process writs were put at common law are inconceivable within the federal system. See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 96-97, 2 L.Ed. 554 (1807). Consequently, Judge Gibbons’ suggestion that the statutory grant “was as broad as the common law,” see dissent infra at 170, should be read with caution. [15] The petition for a writ of habeas corpus filed by Mrs. Lehman alleged that the children are unlawfully detained and restrained of their liberty by the Lycoming Children’s Agency in violation of the Fourteenth Amendment. It sought release of the children from the custody of the state agency and return to the mother’s custody. Such a writ clearly sounds in habeas corpus ad subjiciendum, and cannot be construed as a mesne process or a 28 U.S.C. § 1651 writ that is utilized solely to facilitate the already-existing jurisdiction of a federal court. See also Fay v. Noia, 372 U.S. 391, 414, 83 S.Ct. 822, 835, 9 L.Ed.2d 837 (1963); Developments — Federal Habeas Corpus, 83 Harv.L. Rev. 1038, 1043 (1970). [16] See Carbo v. United States, 364 U.S. 611, 620, 81 S.Ct. 338, 343, 58 L.Ed.2d 329 (1960); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93, 100, 2 L.Ed. 554 (1807). [17] This is not to dispute that other habeas writs exist, such as the ad prosequendum writ utilized in Carbo, supra and the writ fashioned to obtain petitioner’s appearance on appeal in Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), applications which are not subject to statutory or jurisdictional limitations. But such writs within the court’s inherent power that are used to facilitate the exer [150] cise of jurisdiction are available only after the court has otherwise obtained jurisdiction. [18] Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95, 98, 2 L.Ed. 554 (1807) (power to grant writs of habeas to inquire into cause of commitment vested in courts as well as justices and judges). [19] The first modification, in response to South Carolina’s nullification ordinance, enabled federal courts to release from state custody persons who had been acting under federal authority. See Force Act of March 2, 1833, c. 57, § 7, 4 Stat. 634-35. Subsequently, the Act of August 29, 1842, c. 257, 5 Stat. 539-40, extended federal habeas to foreign nationals acting under authority of a foreign state. It is noteworthy that, like the earlier Force Act and the later modification in the 1867 Act, the 1842 amendment was prompted by a political crisis — the British diplomatic protest to the trial of a Canadian soldier by a New York state court. See People v. McLeod, 25 Wend. 483, 1 Hill. 377 (N.Y.Sup.Ct.1841). While all significant statutory changes in the federal writ were responses to grave political crises, no equivalent crisis can be said to exist here. [20] See Cong.Globe, 39th Cong., 1st Sess. 87 (1865) (House resolution precipitating Bill No. 605, which became, with slight changes, the Judiciary Act of 1867). [21] See Cong.Globe, 39th Cong., 1st Sess. 4151 (1866) (House Bill No. 605). [22] 28 U.S.C. § 2254(b). [23] See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). [24] See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). [25] See Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). [26] See Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972). [27] Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), in which the Supreme Court declined to extend the Eighth Amendment into the context of school discipli [151] nary proceedings, presented a somewhat similar question on the extent of federal court intervention into child care and education. The Court recognized a difference between children and criminals for Eighth Amendment purposes — just as we have suggested here with respect to habeas corpus — and found existing state and common law remedies adequate to protect the child. [28] In contrast, we would expect that the present situation, which deals with family concerns to which the entire community is sensitive, would be appropriately dealt with by the state legislatures. See J. Ely, Democracy and Distrust, 73-104 (1980). [29] In his thoughtful essay on Structure and Relationship in Constitutional Law, Professor Charles Black of the Yale Law School admonishes that federal courts should consider not only the particular textual provision in question (whether statutory or constitutional) but should also ground their reasoning on the structure of the federal union — here, on the relationship of federal to state governments. Id. at 3-32 (1969). It certainly is true that the states were assumed to have exclusive jurisdiction in areas such as child welfare. Until Congress acts, then, indicating an intent to intervene via habeas, the federal courts should be hesitant to invade such areas. Moreover, extending habeas removes the res judicata effect of the prior state judgment, a most significant jurisprudential departure, see plurality op. ante at 139, 143-144, constituting an important alteration in state-federal relations. [30] The district court, in a preliminary order, denied the respondent’s contention that Lehman had no standing, and the parties did not raise the issue on appeal. But while Mrs. Lehman has a sufficient personal interest in getting the present habeas relief she seeks, the question whether she is a sufficiently appropriate representative of the other interested parties— the children — is a difficult one, given the context of overlapping yet potentially conflicting parent and child interests. Not only does the problem deserve to be addressed, but a court of appeals may affirm a district court’s decision on a different ground from that assigned by the trial court. See Harold Friedman Inc. v. Thorofare Markets, 587 F.2d 127, 140 (3d Cir. 1978). [31] Inasmuch as the complaint has asserted no basis for the court’s jurisdiction other than 28 U.S.C. §§ 2241 and 2254, our standing discussion is necessarily framed by this statutory context. We acknowledge that Mrs. Lehman might well have standing to bring a § 1983 action challenging the constitutionality of the statute on its face and as applied to her, but that is not the question before us. Rather than imposing our views of the merits on Mrs. Lehman, as Judge Gibbons asserts we do, it is Mrs. Lehman who has brought her cause of action in its particular form and accordingly defined the [152] perspective for our standing analysis. In fact, counsel for Mrs. Lehman made it clear at oral argument that the decision to proceed by way of habeas rather than under § 1983 was quite advertent. [32] See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1202, 1212, 31 L.Ed.2d 551 (1972). [33] The family unit has found protection in the Due Process and the Equal Protection Clauses of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), as well as under the Ninth Amendment. See Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 1688, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). [34] See Moore v. City of East Cleveland, 431 U.S. 494, 503-04, 97 S.Ct. 1932, 1937-38, 52 L.Ed.2d 531 (1977); Wisconsin v. Yoder, 406 U.S. 205, 232-34, 92 S.Ct. 1526, 1541-42, 32 L.Ed.2d 15 (1972); Note, The Mental Hospitalization of Children and the Limits of Parental Authority, 88 Yale L.J. 186 (1978) (articulating five justifications for parental authority: social pluralism, social order, parental privilege, family autonomy, and the child’s welfare); Wald, State Intervention on Behalf of “Neglected” Children: A Search for Realistic Standards, 27 Stan.L.Rev. 985, 990-93 (1975). [35] Should the children be in state custody against their will, it is even possible that habeas would be an appropriate vehicle for the legal attack. [36] See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978). [37] See In re Smith, 16 Md.App. 209, 266, 295 A.2d 238, 246 (1972) (parent may not compel 16-year-old to have abortion). Martin v. Martin, 308 N.Y. 136, 138-39, 123 N.E.2d 812 (1954) (per curiam) (12-year-old permitted to attend church of choice and transfer from parochial school over parent’s objection). In Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the Court explicitly noted that the record showed no evidence of a conflict between parent’s and children’s wishes concerning schooling, but conceded that existence of such a conflict would present a very different question. 406 U.S. at 230-31, 92 S.Ct. at 1540-41. [38] See Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (parent retains substantial, if not dominant, role in decision to have child institutionalized in mental hospital notwithstanding child’s interest in not being confined unnecessarily for treatment or stigmatized as mentally ill). [39] Unchecked exercise of such a power might ultimately undermine its very basis. Parental authority legitimately proceeds from ties that bind, and might forfeit moral validity and legal protection when it becomes solely the imposition of one will upon another. See Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101 (1979) (“historically, it has been recognized that natural bonds of affection lead parents to act in the best interests of their children.”). [40] See Note, Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce, 87 Yale L.J. 1126, 1135 n.36 (1978). “[A]s of 1975, 31 jurisdictions appeared to have had statutes establishing the ‘best interests of the child’ as the standard for divorce custody adjudications.” [41] See Note, supra n.40, at 1127 (24 jurisdictions have implemented legal representation for the child). [42] The very existence of statutes authorizing state intervention on behalf of neglected and abused children reflects the principle that parental rights are limited by, and occasionally different from, the legitimate interests of their children. See J. R. v. Parham, 442 U.S. at 630, 99 S.Ct. at 2518. (Brennan, J., dissenting); Wald, State Intervention on Behalf of “Neglected” Children: A Search for Realistic Standards, 27 Stan.L.Rev. 985 (1975). [43] See Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) (best interests of child, state’s interest in providing for well-being of illegitimate children through adoption and unwed parent’s interest in child all arguably different); Smith v. Organization of Foster Families, 431 U.S. 816, 841 n.44, 97 S.Ct. 2094, 2108 n.44, 53 L.Ed.2d 14 (1977) (state, natural parents and foster parents, all of whom shared some portion of responsibility for guardianship of child, were parties to suit, and all contended that position they advocated was most in accord with rights and interests of children). [44] See Wisconsin v. Yoder, 406 U.S. 205, 230, 233-34, 92 S.Ct. 1526, 1540, 1542, 32 L.Ed.2d 15 (1972); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Goldstein, Medical Care For the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L.J. 645 (1977). [45] See Smith v. Organization of Foster Families, 431 U.S. 816, 846, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14 (1977). [46] See Stanley v. Illinois, 405 U.S. 645, 649, 652, 92 S.Ct. 1202, 1211, 1213, 31 L.Ed.2d 551 (1972). [47] In fact, because the children have articulated a wish not to return, this case approaches the standing dilemma that the Supreme Court declined to answer in Gilmore v. Utah, 429 U.S. 1012 at 1013-14, 97 S.Ct. 436 at 437-38, 50 L.Ed.2d 632 (1976). There, Bessie Gilmore, claiming to act as “next friend” on behalf of her son, filed an application for a stay of execution of the death sentence. The Court concluded, after a careful examination of the record, that her son Gary Gilmore did not want a stay and had knowingly and intelligently waived any rights he might have asserted after imposition of sentence. One concurrence concluded that the “next friend” concept was wholly inapplicable in that case on account of the express divergence between the biological parent’s and child’s wishes. Admittedly, the Gilmore case differs somewhat from the situation here. Gary Gilmore was of age and his attorneys had filed a response challenging the standing of Gilmore’s mother. However, the situation presented in Gilmore may suggest that a dichotomy of interests between the party asserting a right and the person on whose behalf the right is asserted is relevant to the standing inquiry. See Brilmayer, The Jurisprudence of Article III: Perspectives on the “Case or Controversy" Requirement, 93 Harv.L.Rev. 297, 310-314 (1979). [48] One child has been with the same foster family for 10 years now, since he was one year old and he is presently unable to relate emotionally to Mrs. Lehman. See In re William L., 477 Pa. 322, 383 A.2d 1228, 1239 (1978). Cf. Smith v. Organization of Foster Families, 431 U.S. 816, 844, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14 (1977) (child continuously in care of same foster parents develops strong ties to those parents, equivalent to bonds within natural family). [49] See J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1973); Cf. Smith v. Organization of Foster Families, 431 U.S. 816, 826, 844, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14 (1977) (possibility for deep emotional ties even in absence of blood relationship). [50] In addition, to justify extending the writ to the parent with the belief that the children could always object, would force the court to demand express opposition from the child before the judiciary will recognize a conflict between the interest of the parent and interest of the child. This is unrealistic from the perspective of common sense as well as the psychologist’s understanding of the child’s emotional dilemma. Children’s loyalties to, and dependencies on, their parents, regardless of overt disagreement and even in the absence of the physical and emotional minima needed by the child, often create an ambivalence which reduces a child to silence. To permit children to bring a habeas petition in state court in the present situation, should they be so motivated, would be legally and psychologically realistic; to allow a parent to petition, absent the child’s objections, in a context where emotional conflict often results in silence, would tend toward a misreading of the child’s best interest. Burt, Developing Constitutional Rights of, in and for Children, 39 Law & Contemp.Prob. 118, 126-30 (1975). [51] If federal habeas is permitted in this situation, and res judicata eliminated as a bar, there is nothing to preclude a parent from filing a petition for a writ of habeas corpus years after the original separation, and then litigating the constitutional issue completely afresh.