Free Congress © Commentary
By Daniel Lee
Family law as implemented in Western Countries today is resulting in the state creating single- and no- parent homes for children, and in the process replacing the parents. For decades it has been public knowledge that in a custody case, or for children born out of wedlock, mom gets custody and dad typically has court orders to see his children every other weekend. It is also widely known that if mom wishes, she can thwart much of the every other weekend contact.
Many individuals and organizations have been working in an incoherent fashion to reform this, and thus we have moved ahead to the point where now the courts are allowing more dads to assume the role of primary caregiver. Human nature being what it is, many then can and do emasculate or sever the relationship between mom and the children. In the May 28, 2001 Newsweek, Dan Quayle is quoted as seeing some "encouraging signs in the Census reports," one of which is "Then there is the rise in the number of single dads." Dan is a smart fellow, and what this shows is how little penetration the problems in family law have made in academic and political circles.
Family courts operate under a legal concept called "best interest of the child." That allows a trial judge to pretty much do anything he or she wishes with the child. The proceeding can occur in chambers and closed to the public, records sealed, decisions rarely appealed, and far more rarely overturned. For the most part, it's a rigged game where the attorneys (up to five), social workers, investigators, and psychologists transfer a significant portion of the family's lifetime accumulated wealth to themselves.
Many problems are inherent in the above. The most significant two are Constitutional and cultural. The standard for any state intervention in a parent-child relationship is "substantial harm". Appellate and Supreme courts sometimes muddle up the language and call it "significant" or "some" harm, but it is always understood to mean not providing needed medical care, any education, abandonment for an extended period of time, etc. Further, if a trial judge does find a child in substantial harm, he must tailor the orders as narrowly as possible.
That means at the beginning of a custody/paternity action, a trial judge could issue no orders pendente lite, or permanent, prior to the state proving where its compelling state interest lies in that particular case. Attorneys reading this may protest, "but there will be chaos if a primary custodian isn't designated!" I think not, but besides that due process requires that where fundamental rights are at stake there cannot be an automatic infringement on them. Rather the burden is on the state to prove its compelling interest (substantial harm) in each individual instance prior to considering the remedy (means has a very tight fit with the ends). If it is found the child is in substantial harm, the court must then issue orders as narrow as possible. That precludes any nationwide policy as exists today to award every other weekend visitation and two or so weeks in the summer.
For those two points, and a number of other more subtle due process and equal protection violations, almost every standing custody order (and the case and statutory law they derive from) today is in open violation of the U.S. Constitution. Many elected officials, law school professors, appellate attorneys, and media outlets, are aware of this. And yet business continues as usual, ChaChing!, and children continue to be traumatized to their core.
Other parts of family law are also unconstitutional. For children born out of wedlock in Tennessee custody is automatically with mom, and dad does not exist unless he registers with the state. At that point he may hire an attorney and begin the above process (unless mom is accommodating in her role as gatekeeper to the child, then he may skip some of it). In any case a statute cannot automatically infringe upon a fundamental right. Next!
Baby abandonment laws. Tennessee's allows a mom (or anyone actually) to anonymously drop off a newborn in a state facility or hospital. These laws were promoted to reduce the number of moms who kill their newborns each year. Could any elected official vote against that? Of course not, and yet 40 here did. That's more than a hint these bills are not as they are being marketed. A close reading of them and associated amendments, and with the knowledge the bills original intent could have been reached with clauses to counsel the parents and offer the child to the extended family, indicates they were written to create a new source of infants for the fostercare/adoption industries.
Thirty days after the deposit both parents' rights are terminated. They needn't be present at the hearing, they needn't be informed of it. That's a new way to terminate parental rights, and unconstitutional. If it sounds like parental rights are being constantly and selfishly invoked, it must be remembered this is the only protection parents have against the heavy, clumsy, and destructive actions of the state.
There's more. Parental rights are fundamental liberty and privacy interests. Those interests exist outside of parent-child relations too, right? Family law is becoming corrosive to other areas of law, or stands the great potential to. The Tennessee Supreme Court stated, "Section 36-1-113 is presumed to be constitutional." and, "The burden of proof and persuasion rests with him even though 36-6-113 affects a fundamental right."
In Re E.N.R. No. M1998-00417-SC-R11-CV p.6 (Tenn.2001), compare with "It is well settled that, quite apart from the guarantee of equal protection, if a law "impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional."Harris v. McRae 448 U.S. 297, at 312 (1980).
Using a parental rights termination case as a vehicle, either the Tennessee Supreme Court unanimously made a blunder of historic proportions, or they are attempting to overturn the bedrock concept of constitutional law. That concept is where fundamental rights are at stake strict scrutiny is applied and the burden is on the state to prove its compelling interest. It is this writer's belief upon observing the evolution of family, constitutional, and international law, that the state is positioning itself as primary caregiver to replace both parents, in married families and outside of them.
In response to the above Childs Best Interest was founded to place all family case and statutory law under a microscope to determine where it violates the substantial harm standard, and have it properly amended. And also to file amicus curiae briefs where parents are asserting their Constitutional rights. Another very significant initiative is to develop a process to sort out who is for the state raising children, and who is for the parents doing so. Of course this is not as easy as asking them, rather a legislative questionnaire is being developed for elected officials, and a training program for citizens. As they proceed through them they are forced to show their colors. See rough draft at http://childsbestinterest.org/University_of_CBI.htm .
Family law is a symptom of a sickness in the body politic. It can spread and be fatal, or can be cured. To date few persons have been aware of it, although parents in the homeschool movement seem to be taking a preemptive action to remove their children from the state's grasp. But it is probably now clear to all, the substantial harm standard is what protects these homeschooling parents too. Without it the state can dictate what they may and may not teach their children. As in other areas of family law destroy the substantial harm standard, and so too do these and other protections disappear.
Daniel Lee is the President of Childs Best Interest, and Associate Director, ACFC
© This column is the property of the Free Congress Foundation and may not be reproduced without their permission. For comments and inquiries, contact Angie Wheeler at
firstname.lastname@example.org Visit our website at
© This column is the property of the Free Congress Foundation and may not be reproduced without their permission. For comments and inquiries, contact Angie Wheeler at email@example.com Visit our website at www.FreeCongress.org