Testimony

of

Michael A. Galluzzo

to

The Juvenile and Family Law Committee

October 8, 2003

 

Mr. Chairman, Honorable Members of the committee, I have come here today to testify in support of HB 232. I have also come here to criticize it.

 

The reason you are sitting here today is this single piece of paper.    This is the Certificate of Constitutional Question to the Ohio Attorney General as ordered by Federal Magistrate Judge Michael Merz.  The certification reads in part:  “the Court hereby gives you notice that the Plaintiff has filed the above-captioned action to challenge the constitutionality of Ohio Revised Code § 3109.04 and Ohio R. Civ. P. 75(N) with respect to the asserted effect of this rule and statute to permit an Ohio domestic relations court to deprive a biological parent, in a divorce situation, of equal custodial parent status without a finding by clear and convincing evidence that the parent so deprived is an unfit parent.” 

 

This certification, through a chain of events by other concerned Ohioans, was the impetus and the reason for Rep. Ron Young to present the current legislation in HB 232.  However, Rep. Young’s proposal was for “EQUAL” parental rights.  When the legislation came out of the Legislative Services Committee, it was only addressing “substantially equal” rights.

 

For over 80 years, the U.S. Supreme Court has strongly upheld the rights of fit parents to raise their children without undue interference from outside parties including the government. 

 

From Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) , to Stanley v. Illinois (1972) and Santosky v. Kramer (1982) , and even in the recent 2001 decision in Troxel v. Granville, the high court has always held that the rights of fit parents to the custody and control of their children superceded the arbitrary determination of the “best interest of the child” standard. 

 

Ohio, as well as other states, unconstitutionally continue to usurp federal law and inject it’s own determination as to what they feel is right for the child.  The high courts have repeatedly stated that “fit parents” act in the best interest of their children.  So without a finding that a parent is unfit and that there is substantial harm to the child, there is no constitutional authority for a judge to remove custody from one parent in favor of another or to enlarge one parents time and responsibility over the other. 

 

Ohio must enact a domestic relations law that is constitutionally compliant or it too will be challenged in the courts.  Constitutionally compliant by the 14th Amendment means “equal” not “substantially equal.”

 

The current statute, O.R.C. 3109.04 and Civil Rule 75(N) are unconstitutional on their face in that they deprive fit parents of their right to custody without the benefits of due process.  The proposed legislation has the same problem.  It states: “ the court, in a manner consistent with the best interest of the children,” and that’s the first problem, “shall allocate the parental rights and responsibilities for the care of the children primarily to one of the parents…”  That in and of it’s self is an unconstitutional act.  Parental rights being a federal right, supercede the “best interest of the child” standard used so widely in Ohio and other states. 

 

Ohio statutes for juvenile court are constitutional in that there must be a finding by clear and convincing evidence of substantial harm to the child before custody is removed.  What follows is a process to reunite the parent and child.  Not so in domestic relation court.  Once the child is removed from one parent, minimal every other weekend visitation is considered adequate.  I’ve been subjected to it for the last 10 years and I tell you it is not!

 

In order to have a domestic relations law that is constitutionally compliant and effective, it MUST be EQUAL.  As elected legislators of the people, you took an oath to uphold and defend the Constitution of the United States as well as the Constitution of the State of Ohio.  That requires you to enact legislation that is constitutionally compliant.  In knowing that the current and proposed legislation is unconstitutional, you have a duty and responsibility to the people to amend and put forth constitutionally compliant legislation.

 

A constitutionally compliant statute requiring equal parental rights for fit parents will:

1)      Take the financial incentive out of divorce.  The current system alienates parents in a struggle for custody over the children.  Who ever gets the kids, gets the money!  We need a system that will bring parents together for the benefit of the children, not force them apart in a power struggle for personal gain.  A parent with sole custody can, and often does, use the children and visitation to punish, harass, and control the deprived parent.   Parents who would attempt to abuse the system should face loosing custody altogether.

2)      Lower the divorce rate.

Two years ago West Virginia passed legislation that required both parents to continue the same childcare they provided prior to the divorce.  Within 6 months, the divorce rate dropped.

3)      Decrease post-decree litigation.  Without financial incentives, parents will be more likely to workout their differences knowing that they both have equal rights and that frivolous litigation may cause them to loose their equal status.

4)      Provide full access of the child to both parents and will eliminate many of the societal problems plaguing our children due to the effects of divorce and the separation from one parent.

5)      Reduce an estimated 95% of the domestic court issues related to custody determinations, in that there will not be that many custody related issues.  This will free the allegedly overloaded schedule of the domestic relations judges so they can focus on the real issues of the court such as situations where the unsuitability of parents exists. 

6)      A default presumption of equal parental rights will totally streamline the domestic relations system in Ohio.  That will save the state untold financial resources such as the cost of visiting judges, and will reduce the incentives for false allegations of child abuse used to leverage one parent against the other in an attempt to gain custody.

 

Attached to my testimony are:

1)      A copy of the Certificate of Constitutional Question filed in Dayton

Federal Court on Aug. 12, 2002 by Judge Michael Merz,

2)      A condensed copy of the 43 page Merit Brief filed in my case on Dec. 18, 2002,

3)      A copy of proposed legislation (with notes) compiled by Mr. Chuck Evans. Those 4 paragraphs are a constitutionally compliant condensed version of 3109.04, and covers any situations that may arise in a custody divorce or separation.

 

Truly equal parental rights legislation is a win, win, win situation, for the child, for the parents, and for the State of Ohio.  I urge you to consider these remarks and move forward with a bill that is truly “EQUAL” in content.  

 

I thank you for your time and will gladly respond to any questions you may have.