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Carver v. Hornish, 171 Idaho 118, 158 P.3d 1175 (2022)
Christy Hoffmann*
I. Introduction
This year, Missouri joined the (surprisingly short) list of fifteen states to completely ban child marriage.[1] This legislation marks an update from the 2018 amendments to Missouri law, which allowed children between sixteen and eighteen years old to marry with parental consent.[2] Prior to 2018, many considered Missouri a “destination” state for child marriage, with individuals coming from both coasts to marry fifteen-year-old girls.[3] This Note explores the history and attitudes behind child marriage and the fairly recent wave of states to adopt full child marriage bans, while also considering the implications of child marriage on parental rights, especially for divorced parents. Part II articulates the facts and holding from Carver v. Hornish.[4] Part III navigates the history and variety of child marriage statutory framework in the United States, the constitutional rights of parents, and how those rights are implicated in child marriage. Part IV relates the Idaho Supreme Court’s decision in Carver. Lastly, Part V discusses the benefits of states adopting a complete child marriage ban as well as alternative statutory frameworks that limit or avoid the liberty interest issues at stake in Carver.
II. Facts and Holding
On November 1, 2021, the sixteen-year-old daughter (“Daughter”) of Erin Carver and William Hornish was married with her father’s consent.[5] Carver and Hornish divorced in 2012, and this marriage was allegedly a strategic move arranged by Hornish as part of an ongoing custody battle between him and Carver.[6] In 2021, Carver petitioned to receive full custody of Daughter when her ex-husband planned to relocate from Idaho to Florida.[7] Within the following week, Hornish had filed multiple motions asking for full custody and counterpetitions and had moved to Florida with Daughter and enrolled her in school.[8]
Five days after Hornish’s motion for temporary orders, Carver filed a petition for expedited enforcement of the custody schedule established in the divorce decree.[9] The Court denied Hornish’s motion for temporary orders and granted Carver’s cross motion for full custody during the proceedings.[10] The Court scheduled trial for March 2022, a date almost nine months in the future.[11] On October 29, 2021, Carver filed a motion seeking immediate relief, alleging that Hornish was organizing a sham marriage for Daughter in order to legally emancipate Daughter and strip the magistrate of jurisdiction over Daughter’s custody.[12]
Just over a week later, on November 5, 2021, the magistrate granted Carver’s ex parte motion, holding that“[b]oth the child and the Petitioner would suffer irreparable harm” if the alleged marriage were to occur.[13] However, Hornish responded with a motion to dismiss on the grounds that Daughter was married in Idaho on November 1, 2021, removing the court’s jurisdiction.[14] The magistrate held a hearing on November 9, 2021, where it admitted that “it had not seen [Carver’s] ex parte motion until November 5, due to a delay in the electronic filing system or an oversight.”[15] While the magistrate had granted the order “immediately” once it discovered the motion, it was not confident that the order could be reissued.[16] On November 19, the court granted Hornish’s motion to dismiss, agreeing with Hornish that the court could not reissue the motion retroactively.[17] The court further held that because Daughter had entered into a valid marriage, the court “no longer had jurisdiction over her custody,” obligating the magistrate to dismiss the case.[18] Carver appealed, challenging the lower court’s decision as well as the constitutionality of Idaho’s marriage laws.[19] The Idaho Supreme Court affirmed the magistrate’s decision, holding that the lower court did not have subject matter jurisdiction over Daughter.[20]
III. Legal Background
A. Child Marriage Before the 20th Century
Historically, U.S. states did not set minimum marriage ages but instead established when parental consent was required. [21] Historian Nicholas L. Syrett notes that this framework indicates an emphasis on “parents preserving the right to decide when their children might marry, rather than states forbidding all people below a certain age from doing so.”[22] By the 1800s, the U.S. had expanded, and so had the range of approaches to child marriage.[23] The nineteenth century also brought one of the first major child marriage cases in the United States: Parton v. Hervey.[24] This case concerned a marriage entered into with fraudulent parental consent, but the Parton Court upheld the marriage despite its illegality.[25] Since Parton, “most judges” have followed its precedent, allowing the validity of marriages even when children have broken the law to marry.[26]
B. Evolution of Parental Rights in the Twentieth Century
The United States Supreme Court has long recognized that parents have a fundamental right to direct the upbringing and care of their children under the Due Process Clause.[27] Over the years, several key cases have shaped the jurisprudence regarding parental rights.[28] In Meyer v. Nebraska (1923), the Court struck down a law prohibiting foreign language education to children, holding that it violated the Due Process Clause of the Fourteenth Amendment.[29] The Court emphasized that the liberty protected by the amendment includes the right of parents to control the education of their children and that the state may not arbitrarily interfere with this fundamental right.[30] The Supreme Court ruled in Pierce v. Society of Sisters (1925) that a law requiring public education was unconstitutional because it unreasonably interfered with the liberty of parents to choose private or religious education for their children.[31] The decision reinforced the principle that parents, rather than the state, have the primary role in directing their children’s education and upbringing.[32]
In Stanley v. Illinois (1972), the Supreme Court considered the rights of unwed fathers in child custody matters.[33] The Court held that a presumption that unwed fathers were unfit parents violated due process and equal protection rights under the Fourteenth Amendment.[34] The ruling affirmed that parental rights cannot be terminated without due process, reinforcing the idea that both parents, regardless of marital status, have protected liberty interests in the care and custody of their children.[35] The Troxel v. Granville (2000) Court limited lower courts’ ability to override a fit parent’s decision without sufficient justification, emphasizing that the Due Process Clause protects a parent’s fundamental right to make decisions concerning the care, custody, and control of their children.[36]
C. Child Marriage Reform in the Twenty-first Century
In 2016, Virginia was the first state to completely ban child marriage, with an exception allowed for legally emancipated minors.[37] Currently, thirteen states have a minimum marriage age of eighteen with no exceptions.[38] Eight states require minors to be at least seventeen to marry.[39] Meanwhile, fourteen states set the minimum age at sixteen.[40] Four states still have statutory schemes that do not limit marriage age, as long as the statute’s requirements are met—California, New Mexico, Oklahoma, and Mississippi.[41] As of mid-2025, California, Hawaii, Illinois, Kansas, and Oregon had pending legislation for full child marriage bans.[42]
IV. Instant Decision
This Part examines the Idaho Supreme Court’s holding in Carver v. Hornish, which affirmed the magistrate’s decision and found that the lower court did not have subject matter jurisdiction over Daughter.[43] The Court also held that because Carver failed to bring the constitutional question regarding her parental rights to the magistrate and the arguments on appeal were “cursory” and not substantive, it could not consider whether her parental liberty interests were violated.[44]
In affirming the lower decision, the Court confirmed that because Daughter legally married with the consent of a parent as required by Idaho statute, the magistrate court no longer had jurisdiction.[45] Regarding Carver’s argument that her protected liberty interest had been violated by Idaho Code section 32-202, the Court stated that it cannot consider questions without a complete record.[46] The Court noted, however, that Carver’s constitutional question was “important,” as underage marriage “implicates numerous overlapping and potentially conflicting interests,” including the interests of the parents, the minors, the judiciary, and the state.[47] The Court then discussed the variety of approaches to child marriage that provide for divorced parents’ liberty interests, including full bans and statutory frameworks adopted in other states.[48]
V. Comment
While legislation banning child marriage has previously garnered broad bipartisan support, the increased influence of far-right conservatism may cause a shift.[49] Scholars and advocates note that pronatalism, a rising ideology amongst U.S. conservatives, can be linked with child marriage outside the United States.[50] Republican legislators in several states have voiced support for child marriage as an alternative to abortions.[51] For example, a New Hampshire legislator argued that restricting “people who are of a ripe fertile age” would “mak[e] abortion a much more desirable alternative.”[52] Advocates for total bans note that the idea that child marriage would decrease abortions is not supported by scholarship,[53] and that the harms of child marriage far outweigh any potential harm if minors must wait to marry until reaching adulthood.[54] This section advocates for complete child marriage bans, while also outlining alternative statutory frameworks for states where a full ban is not yet possible.
A. Complete Child Marriage Bans
Banning child marriage without exceptions remains the best option for states to protect the interests and rights of minors and parents. Child marriage is associated with significant risks, including increased risks of: intimate partner violence, serious health conditions, educational disruptions, mood and anxiety disorders, and high rates of suicidal ideation or attempts.[55] Additionally, married minors often cannot bring statutory rape claims, as a spousal defense to statutory rape protects perpetrators married to minors in “virtually all states.”[56] Furthermore, married minors face the same restrictions as unmarried minors and are often unable to file for divorce or for protective orders.[57] Even in states without these restrictions, minors may not be able to hire an attorney because “contracts with minors, including retainer agreements, usually are voidable,” making attorneys leery of entering into representation contracts with minors.[58]
As noted by the Idaho Supreme Court, a complex overlay of rights and interests underlies minor marriage, which can produce difficulties for legislatures to correctly balance these rights.[59] Statues that provide options for minor marriage often rely on judicial oversight through best interest assessments.[60] While allowing minor marriage with the consent of both parents avoids constitutional issues for parents, scholarship consistently agrees that young marriage is not in the best interest of children and poses a risk of parents forcing children into marriage.[61] Banning child marriage limits procedural inefficiency while maintaining parental rights and children’s best interests.
B. Guiding Principles for Limiting Child Marriage
1. Arguments for Limited Framework
As previously discussed, current support for maintaining options for child marriage centers mostly around potential connections to abortion.[62] Previous legislative debates, however, indicate that this is not the only argument in favor of child marriage.[63] In 2017, the ACLU of Northern California argued against a proposed child marriage ban as an “unnecessary and unduly” intrusion on the fundamental right to marry.[64] Other supporters indicate that complete marriage bans limit the autonomy of adolescents who “are in the best position to determine whether they’re safe and also whether they want to be married.”[65] Some proponents cite protecting cultural customs as a reason to maintain frameworks allowing child marriage.[66]
2. Best Statutory Frameworks
If a state finds the arguments against a full ban compelling, then it is crucial that its statutes allowing child marriage protect the interwoven interests implicated in such a marriage. Statutes should strike a delicate balance between parental authority and minor autonomy by incorporating four elements: (1) accommodations for parental interests, (2) measured autonomy for minors, (3) proof of age and identity, and (4) a mandatory “cooling off” period. This section will briefly examine the four state statutes noted by the Idaho Supreme Court—Utah, Arkansas, New Mexico, and North Carolina;[67] further scholarship is needed to provide a more comprehensive understanding of the various approaches.
Utah’s statute, § 81-2-304, provides a structured framework for minor marriage, ensuring parental involvement while incorporating judicial oversight and protective measures.[68] This statute requires proof of age and identity from both the minor entering the marriage and the parent providing consent, limiting fraudulent marriages.[69] For divorced parents, the consent framework accommodates various custody arrangements.[70] Judicial authorization is required.[71] The judicial officer must ensure the marriage is voluntary and in the minor’s best interests.[72] Judges have the authority to impose conditions but cannot approve marriages with an age gap exceeding seven years.[73] Some may argue, however, that the requirement for both parental and judicial approval places excessive limitations on a minor’s autonomy.[74] Additionally, the seven-year age gap is above the average provision for statutory rape statutes.[75]
Arkansas takes a more restrictive approach, limiting marriage to seventeen-year-olds and requiring both parents’ consent unless one parent has sole custody.[76] The statute also allows the court to void parental consent with clear and convincing evidence that a consenting parent is unfit or if the marriage is not in the minor’s best interest.[77] These measures could provide an added layer of protection against the significant risk of coercion faced by sixteen- and seventeen-year-olds.[78] The inclusion of a five-business-day waiting period serves as a cooling-off mechanism, a check against impulsive decisions, and providing time for motions to void consent.[79] Proponents of more autonomy for sixteen-years-olds would find the limitation to only seventeen-year-olds excessive, although the exclusion of judicial authorization avoids potential issues of abuse of judicial discretion.[80]
New Mexico statute § 40-1-6 requires both parents’ consent or judicial approval for “good cause shown.”[81] It also permits marriage for minors under sixteen if part of a settlement to compel support or if the minor is pregnant.[82] This statute is the least detailed of those analyzed here, which could be a double-edged sword. This statute’s lack of specificity allows for wide judicial discretion, which could allow courts to freely consider individual circumstances, ensuring flexible decision-making.[83] However, this same judicial flexibility leaves significant room for judicial bias.[84] The lack of a minimum age requirement poses significant risks for child exploitation.[85] Furthermore, permitting marriage based on pregnancy alone may pressure minors into an early marriage.[86] This statute also lacks an age gap limit, which creates a risk of power imbalances that can lead to abuse.[87]
North Carolina presents a stricter but well-structured model in § 51-2.1, allowing sixteen- and seventeen-year-olds to marry while imposing a four-year maximum age gap between spouses.[88] Courts must find that the marriage serves the minor’s best interests, considering factors such as parental opinion, the minor’s relationship with their guardian, and their ability to assume marital responsibilities.[89] If all living parents oppose the marriage, the law presumes that the marriage is not in the minor’s best interest, adding a safeguard against coercion from the potential spouse.[90] While the lack of an explicit cooling-off period may allow rushed decisions without adequate consideration, the required procedures to receive judicial authorization essentially serves as a de facto waiting period.[91]
VI. Conclusion
As demonstrated by cases like Carver v. Hornish, the consequences of insufficient protections in marriage laws can be irreversible once a marriage occurs. Rather than continuing to experiment with partial measures that invite constitutional challenges and procedural manipulation, Missouri legislators correctly implemented the simplest solution—a complete ban on child marriage—which is also the most effective for protecting the rights and welfare of all involved. For states that cannot achieve a complete ban, statutory frameworks should, at minimum, include provisions that protect the liberty interests of both parents in divorce situations, establish meaningful judicial oversight, implement reasonable age-gap restrictions, and create cooling-off periods.
* B.A., International Cultural Studies, BYU-Hawai‘i, 2012; M.A., English, University of Oregon, 2016; J.D. Candidate, University of Missouri School of Law, 2026; Associate Editor, Missouri Law Review, 2025–26. Many thanks to Professor Rachel Wechsler for her generous time, support, and insights on this article and to the members of the Missouri Law Review for their suggestions and improvements.
[1] Evy Lewis, Missouri Legislature Votes to Ban Child Marriage, Raising Age to 18, St. Louis Pub. Radio (April 29, 2025), https://www.stlpr.org/government-politics-issues/2025-04-29/missouri-legislature-votes-ban-child-marriage-raising-age-to-18; Tahirih Just. CTR., Ending Child Marriage, State by State (July 9, 2025), https://www.tahirih.org/wp-content/uploads/2025/04/Child-Marriage-in-the-States-Two-pager_5.21.25.pdf.
[2] Claire Dickey, Map Shows Where Child Marriage Is Still Legal as Missouri Considers Ban, Newsweek (Feb. 4, 2025), https://www.newsweek.com/map-shows-where-child-marriage-still-legal-missouri-considers-ban-2026071 (last accessed Feb. 14, 2025).
[3] See Daniele Selby, Why Missouri Is a ‘Destination Wedding Spot’ for 15-Year-Olds, GLOB. CITIZEN (Mar. 12, 2018), https://www.globalcitizen.org/en/content/child-marriage-missouri-us-statutory-rape.
[4] 518 P.3d 1175 (Idaho 2022).
[5] Id. at 1177–78.
[6] Id. at 1177.
[7] Id.
[8] Id. at 1178.
[9] Id.
[10] Id.
[11] Id.
[12] Carver alleged that a Florida woman informed her that Daughter offered to do Florida woman’s son’s homework if he married Daughter and that Hornish would get another Florida resident to marry Daughter if the son declined. Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 1179.
[17] Id.
[18] Id.
[19] Id. at 1179–80.
[20] Id. at 1180.
[21] Nicholas L. Syrett, American Child Bride: A History of Minors and Marriage in the United States 31–32 tbl. 1.1 (2016).
[22] Id. at 16.
[23] Id.
[24] Parton v. Hervey, 67 Mass. 119 (1854).
[25] Id. at 122–123.
[26] Syrett, supra note 21, at 77.
[27] Michael J. Higdon, Constitutional Parenthood, 103 Iowa L. Rev. 1483, 1491–92 (2018).
[28] Id.
[29] 262 U.S. 390 (1923).
[30] Id. at 399–403.
[31] 268 U.S. 510 (1925).
[32] Id. at 534–535.
[33] 405 U.S. 645 (1972).
[34] Id.
[35] Id.
[36] 530 U.S. 57 (2000).
[37] Child Marriage in the United States, Unchained at Last, https://www.unchainedatlast.org/child-marriage-in-the-u-s/ (last visited Aug. 7, 2025).
[38] See Tahiri Just. Ctr., The National Movement to End Child Marriage (Sept. 1, 2024), https://www.tahirih.org/wp-content/uploads/2022/01/9.1.2024-States-CM-Reforms.pdf (citing complete bans on child marriage in New Hampshire, Virginia, Washington, Michigan, Connecticut, Vermont, Massachusetts, New York, Rhode Island, Minnesota, Pennsylvania, New Jersey, and Delaware).
[39] Id. (detailing updates in Maine, Maryland, Georgia, Nevada, Ohio, Florida, Kentucky, and Tennessee).
[40] Id. (detailing updates in West Virginia, Wyoming, Alaska, North Carolina, Idaho, Utah, Indiana, Maine, Arkansas, Colorado, Louisiana, Arizona, Missouri, and Texas).
[41] Tahirih Just. Ctr., Legislative Reforms to Limit or End Child Marriage Since 2016 10 (Sept. 1, 2024), https://www.tahirih.org/wp-content/uploads/2020/05/9.1.2024-Reflection-Paper_Making-Progress-But-Still-Falling-Short.pdf.
[42] U.S. Child Marriage Laws: Individual State Legislation, Freedom United, https://www.freedomunited.org/u-s-child-mariage-laws-individual-state-legislation/ (last visited Aug. 7, 2025).
[43] Carver v. Hornish, 518 P.3d 1175, 1180 (Idaho 2022).
[44] Id. at 1182.
[45] Id. at 1179.
[46] Id. at 1181.
[47] Id. at 1181.
[48] Id. at 1181.
[49] See, e.g., Jay P. Greene and Lindsey M. Burke, Here’s How to Actually Reverse the Baby Bust, The Federalist(Dec. 2, 2024), https://thefederalist.com/2024/12/02/heres-how-to-actually-reverse-the-baby-bust/ (advocating for defunding higher education due to correlation between education and late-age/limited childbirths).
[50] Rasadokht Forati & Deborah Bartz, “Blessed Be the Fruit”—The Contemporary Rise of Pronatalism, 391 N. Eng. J. Med. 1569, 1569 (2024) (discussing the rise of pronatalism in the United States). See also Asma Pourtaheri, et. al., Socio-ecological Factors of Girl Child Marriage: A Meta Synthesis of Qualitative Research, 24 BMC Pub. Health 19 (2024), (https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-023-17626-z) (noting pronatalism “encourages early marriage in Sudan.”); Valentina Calderón-Mejía et al., The Impact of Conflict on Child Marriage and Adolescent Fertility 12 (2020), https://www.unescwa.org/sites/default/files/pubs/pdf/impact-conflict-child-marriage-adolescent-fertility-english.pdf (listing “ethnic pronatalism encouraged” as a factor for increased child marriage in “conflict settings”).
[51] See Marie Johnson-Dahl,Note, Sixteen Candles on My Wedding Cake: Implications of Banning Child Marriage in America, 2020 Univ. Ill. L. Rev. 1045, § 1056–66 (2020).
[52] Cynthia McCormick Hibbert, New Hampshire Legislators Pass Bill to Ban Child Marriage, Ne. Glob. News(May 7, 2024), https://news.northeastern.edu/2024/05/07/child-marriage-law-new-hampshire/.
[53] Kelly Rissman, The Former Teen Bride and the Republicans Who Don’t Want to Outlaw Child Marriage, The Indep. (Aug. 5, 2024), https://www.independent.co.uk/news/world/americas/us-politics/child-bride-marriage-laws-republicans-abortion-b2588939.html (quoting child marriage scholar Syrett, “I know of no study that actually demonstrates that to be true.”).
[54] J. Shoshanah Ehrlich, Too Young for Marriage But Not for Abortion: Keeping Teens in the “Driver’s Seat of Their Lives” Through the Intended Purpose Approach to the Shifting of Age Boundaries, 45 Harvard J. L. & Gender 125, 175 (2022), https://journals.law.harvard.edu/jlg/wp-content/uploads/sites/88/2022/09/Too-Young-for-Marriage-but-Not-for-Abortion.pdf.
[55] Tahirih Just. CTR., Child Marriage Poses Serious Risks to Children (May 8, 2020), https://www.tahirih.org/wp-content/uploads/2020/05/Child-Marriage-Impacts-One-Pager-updated-5.8.-2020-REGULAR-PRINT.pdf.
[56] Id.
[57] Id. at 167.
[58] Fraidy Reiss, Child Marriage Traps Girls in an Inescapable Legal Hell. But it is Still Legal in 46 US States, Unchained At Last (Apr. 11, 2021, 10:02 AM), https://www.unchainedatlast.org/4-11-2021-child-marriage-traps-girls-in-an-inescapable-legal-hell-but-it-is-still-legal-in-46-us-states/.
[59] Carver v. Hornish, 518 P.3d 1175, 1181 (Idaho 2022).
[60] Terri Dobbins Baxter, Child Marriage as Constitutional Violation, 19 Nev. L. Rev. 39, 77 (2019), https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1760&context=nlj.
[61] Tahirih Just. Ctr., supra note 55.
[62] See supra Section V.
[63] See Joey Schneider, Missouri Lawmaker Defends 12-year-olds Getting Married, Fox2 News, (Apr. 14. 2023, 5:18 PM), https://fox2now.com/news/missouri/missouri-lawmaker-defends-12-year-olds-getting-married/ (quoting Missouri State Senator’s support based on successful marriage between minor children). See also Alixel Cabrera, Utah Legislature Approves Bill Forbidding Minors From Marrying Someone Four Years Older, Utah News Dispatch (Feb. 20, 2025, 2:08 PM), utahnewsdispatch.com/briefs/utah-legislature-approves-bill-forbidding-minors-from-marrying-someone-four-years-older/ (discussing legislative debate expressing doubt on appropriateness of a four-year age-gap restriction).
[64] Johnson-Dahl, supra note 51, at 1062.
[65] Tovia Smith, Who Decides if You’re Too Young to Marry?, NPR (April 5, 2016, 4:47 PM), https://
www.npr.org/2016/04/05/473106012/who-decides-if-youre-too-young-to-marry (quoting Stephanie Nilva, director of Day One, a non-profit focused on prevention of domestic violence and dating abuse).
[66] Caylin Jones, Note, Saying “I Don’t” to Child Marriage: Creating a Federal Minimum Marital Age Requirement Through the Treaty Power, 26 Sw. J. Int’l L.396, 400 (2020).
[67] Carver v. Hornish, 518 P.3d 1175, 1181 (2022).
[68] Utah Code Ann. § 81-2-304 (Westlaw 2025).
[69] Id. § 81-2-304(1)(b).
[70] Id. § 81-2-304(1)(a)(i)–(ii).
[71] Id. § 81-2-304(2)(a).
[72] Id.
[73] Id. § 81-2-304(2)(d)–(e).
[74] Raquel Wildes Genet, Note, Child Marriage in America: An Interim Solution Pending a Total Ban, 40 Cardozo L. Rev. 2999, 3026–27 (2019).
[75] Age Gap Provisions, The Gault Center, https://www.defendyouthrights.org/wp-content/uploads/2015/11/AgeGapProvisions.pdf (last visited Aug. 8, 2025).
[76] Ark. Code Ann. § 9-11-102(b)(1), (4) (2025).
[77] Id. § 9-11-102(b)(5).
[78] Jones, supra note 66, at 403.
[79] Id. at 403; § 9-11-102(b)(6).
[80] Jones, supra note 66 at 414.
[81] N.M. Stat. Ann. § 40-1-6(A) (2025).
[82] Id. § 40-1-6(B).
[83] Jones, supra note 66, at 414.
[84] Id.
[85] Id. at 403.
[86] Id.
[87] Wildes Genet, supra note 74, at 3041.
[88] N.C. Gen. Stat. § 51-2.1 (2025).
[89] Id. § 51-2.1(a).
[90] Id.
[91] Id. § 51-2.1(b).