The United States Court of Appeals for the Eleventh Circuit issued a major ruling Monday, declaring that the fundamental right of parents to live with their children extends to all parents, including those with past convictions for child pornography.
In an en banc decision, the court tackled a challenge to the Alabama Sex Offender Registration and Community Notification Act. The 2011 state law permanently bars adult sex offenders convicted of offenses involving a child from residing or staying overnight with any minor. Because the law’s definition of a “sex offense involving a child” includes child pornography, the restriction applied directly to plaintiff Bruce Henry, permanently preventing him from living with his young son.
Writing for the majority, Circuit Judge Robin Rosenbaum emphasized that the right of a parent to establish a home and raise their children is “perhaps the oldest of the fundamental liberty interests” secured by the Fourteenth Amendment.
The state of Alabama argued that certain classes of parents forfeit these fundamental rights entirely due to past misconduct committed years before their children were born. The court directly rejected that sweeping approach.
“But the Supreme Court and our history and tradition have spoken unambiguously: parents—even those who have committed state-defined ‘misconduct’—enjoy the fundamental right to live with their children,” Rosenbaum wrote.
Henry pleaded guilty in 2013 to knowingly possessing child pornography after federal authorities discovered two videos and 348 photos on his computer. He served five years in prison followed by supervised release. Since his release, Henry completed a sex offender treatment program, maintained steady employment, and attended support groups. Though his supervised release was extended to March 2026 following two probation violations involving adult and teen pornography searches in 2019, he has had no further violations. In August 2021, Henry and his wife had a son.
Under Alabama’s law, Henry faced a lifetime restriction with no option for administrative relief, meaning he could never live under the same roof as his child or stay past 10:30 p.m.
The federal appeals court noted that recognizing a fundamental right does not mean a state cannot regulate it. Because child safety is a compelling government interest, the court placed the case on a “strict-scrutiny track.” This requires Alabama to prove that its total residential ban is narrowly tailored to protect children. The court remanded the case back to a smaller judicial panel to make that specific determination.
The decision drew a sharp dissent from Chief Judge William Pryor, joined by three other judges, who argued the majority improperly framed the issue by ignoring Henry’s criminal status.
“This appeal presents a different question: whether the Due Process Clause grants child-sex convicts, not parents generally, a fundamental right to reside with their children. Of course not,” Pryor wrote.
Pryor’s dissent pointed to centuries of common law and early American history showing that courts regularly stripped parental custody from individuals for gross misconduct, profligacy, or debauchery. He noted that at the time of the nation’s founding, severe sex offenses against young children were routinely punished by death.
The dissent warned that the majority’s logic takes power away from elected state legislatures and could force individual judicial hearings even for offenders who have committed direct contact crimes against minors.
“Under the majority’s reasoning, a father who raped his minor child will enjoy the fundamental right to reside with that child and other minor children absent an individual judicial determination of dangerousness,” Pryor wrote.
In a separate concurring opinion, Rosenbaum countered that the historical cases cited by the dissent actually proved the majority’s point. She noted that historical courts did not use an automatic, permanent legislative switch to bar parents from their children. Instead, they relied on individualized, discretionary evaluation based on the parent’s current fitness and the child’s immediate welfare.
By defining the right at stake as the general right of a parent to live with their child, the Eleventh Circuit affirmed the lower district court’s stance in part, setting up a high legal hurdle for Alabama’s strict residency restrictions to survive moving forward.
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