CUSTODY
& the CONSTITUTION"
Presented
on
Healing Our Families National Conference
-A Time For Change-
by Chuck Evans
©1996-2005 All Rights
Reserved
I.
State Rights and Federal Rights &WHat is RIGHT?
A. STATE RIGHTS
-Each State Maintains the
Right to Regulate it's Citizens, including the
Regulation of Family Matters.
However, an important Caveat
Exists Where All United States Citizens Rights are Protected
under the
-Each State Protects the
Welfare of It's Minor Citizens/Children in Family Matters.
-Family Matters also include
the State's Right to Regulate Matters of Marriage and Divorce.
-Under State & Federal
Law[1] Parents are Presumed to be Suitable and Fit Parents.
-Parents, Implicitly
Presumed to be Suitable and Fit, Protect Their Child(ren)'s
Welfare.
-Conclusion&Suitable and Fit
Parents Act in Their Child(ren)'s Best Interests.
-The State Assumes an
Obligation, its "Parens Patriae"
interest,[2] where the Parent(s) are
Unsuitable (unfit, unwilling, or unable to protect their minor child(ren)'s welfare) and where no other Suitable Individual
is Available.
-The State must have a
compelling legal reason to Protect the Welfare of Children where a Parent is
available for the Care, Custody, and Control of their Minor Child(ren).
-The State does NOT have a
right to improperly intrude on a parent-child relationship without a compelling
reason.
-However, where Parent(s)
are LEGALLY Presumed to Act in their Child(ren)'s Best Interests/Welfare, the
State has no Compelling Reason to Intrude into the Private Realm of the Family
or into the Associational relationship between each Parent and Child.[3]
-Conclusion&WITHOUT a
Compelling Reason for State Intervention, each autonomous Parent-Child
Relationship Remains Intact.
At this point, the State has no Legal Basis to Intervene, that is&the State has No Compelling Reason to
inject itself into either Parent-Child Relationship. The Welfare/Best Interests
of the Child(ren) are Protected. [4]
-And it is also at this
juncture that the State maintains no Legal basis to interfere with pre-existing Parental Rights.
-The State has no Legal
basis to Implicate ANY Parental Right where the Child(ren)'s
Welfare is implicitly protected.
-Therefore the Welfare of
the Child(ren) has not been Proven to be in Jeopardy.
-Conclusion&Both Parents
Retain their Right to Legal and Physical Custody of their Child(ren).
However, Let's Go Back to the Current Reality that Exists in Every
Divorce with Children&State
Authority Asserting that the Best Interests of the Child(ren)
is
-The State Opines that it
maintains an Obligation to Protect the Welfare of its Minor Citizens&and
therefore State Intervention is Rationally Related to the Best Interests of the
Child(ren).
-But, what
exactly is the Legal Definition of "Best Interests'"?
-What Evidentiary
Standard is Applicable to Determine a Child's Best Interests?
-And who
Actually Takes Control of the Child(ren)& the Parents
or the State?
-State Judicial
Decisions/Court Orders Evidence the TRUTH about what Actually Occurs as a
Pattern and Practice in Family Courts throughout the nation.
-What Actually Happens Daily
in State Family Courts certainly is NOT the Least Intrusive Means. The recurring Pattern and Practice of
presumably acting in the child(ren)'s best interests
occurs by Intentionally ignoring Parental Rights.
-This Pattern and Practice
Inverts the Supremacy Clause (Art.VI of the US Constitution) by upholding State
Law (allegedly protecting children's interests) over Federal Law, i.e., compliance with U.S. Constitution,
where a FEDERAL RIGHT (the fundamental liberty right to custody) is Implicated.
-The State Believes that the
Least Intrusive Means, founded in the Child(ren)'s Best Interests, is to
Physically Remove one legally-suitable, but arbitrarily-denied Parent from
Substantive Contact with his or her Child(ren).
-The State expressly
condones, by their OWN public record, that what is "best" for child(ren) is to effectively minimize their relationship
with the now designated "non-custodial" Parent.
-Upon designation, custodial
and non-custodial parents are no longer similarly situated.
-The State legislature
provides a statutory entitlement for non-custodial parents to 'visit' with
their child&and this token stipend is the State's Least Intrusive Method of
encouraging a healthy parent-child relationship and maximizing quality familial
involvement!
-On what legal basis (of
intervention) is the State entitled to make these Decisions for Suitable
Parents?
B. Implication of Federal Rights by the State
-When
a State Court Implicates (infringes, denies, deprives) a Parental Right
(temporarily or permanently), the State Absolutely Intrudes Upon the
Parent-Child Relationship by Implicating Each Parent's Fundamental Liberty
Right to Custody of their Minor Child(ren).
-Infringement
of a Federal Right Occurs when the State Improperly Rationalizes that the
Child's Welfare/Best Interest is "Jeopardized" Merely through the Termination
of a Marriage Contract or by Arbitrary Presumption that one parent is better
suited to address the care, custody, and control of the child(ren) than the
other parent.
-Conclusion&State Law
Impermissibly Intrudes Upon and Implicates Fundamental Parental Rights.
The Only Way the State Can Rebut the Presumption that Fit Parents are Legally Presumed to Protect their Child(ren)'s Best Interests&is with a "Compelling" Reason.
-A Compelling Reason
Requires the State to step-in (Intervene) where the Welfare of it's Minor Citizens is in Jeopardy.
If the State
does step-in, then it is at this point that State Rights Intersect with Federal
Rights [and
Federal Rights Require Mandatory Federal/Constitutional Protections]. And pursuant to Article VI
of the U.S. Constitution, the Supremacy Clause requires that "the judges in
every State shall be bound (by the Constitution and the Laws of the
C. Federal Rights
-Parental rights are
Fundamental Rights Protected under Federal/Constitutional Law. [5]
-Fundamental Rights Inhere to the Individual, not the Married Couple. Fundamental rights are
also called substantive rights or natural rights.
1.
Parental Rights ( & associative children's rights)
a. Parental Rights are a Bundle of Parental
Responsibilities
-The Bundle of Parental
rights and responsibilities includes the right to the care, custody, and
control of a minor child.
2. Parental
Rights are Fundamental (Substantive) Federal Rights
-The United States Supreme
Court has continuously & repeatedly held that Parental Rights are Protected under the U.S. Constitution beginning in 1923 with
Meyer v. Nebraska and most recently
summarized in great detail in Troxel v.
Granville (2000).
-Parental rights are Liberty
Interests protected under the 14th Amendment.
-
-Parents and children also
maintain unenumerated privacy and autonomy interests under the 9th Amendment
and the freedom to associate (an autonomous and reciprocal association between
each parent and their child) pursuant to their parent-child relationship under
the 1st Amendment.
-Conclusions As a Matter of Law&
PARENTAL RIGHTS
ARE ABSOLUTELY PROTECTED.
THE PARENT-CHILD
RELATIONSHIP IS ABSOLUTELY PROTECTED.
3. Custody is
the Legal Basis for Care and Control of the Child
DEFINITIONS:
Legal Custody =
the Decision-making Right
Physical Custody
= the Companionship (relationship) Right
-Defining the legal basis of
"what a parental right consists of" is critical to successful understanding of
the fundamental right itself and must be consistently and uniformly used
throughout the
-The improper use of current
phrases and terminology is detrimental to a consensus understanding. These include shared parenting, which has no legal definition, and divided
or joint custody, which is subject to
judicial interpretation.
-Without a strict legal
definition, current terminology is vague and inconclusive, but more
importantly, subject to arbitrary interpretation by a state judge. Statutory
(court) use of vague terminology further confuses and muddles litigation
resulting in eroded family relationships.
II. Constitutional Scrutiny[6]
A. Substantive and
Procedural Due Process [7]
-Fundamental, substantive,
and/or natural rights are legally differentiated from civil rights because
civil rights are rights created under law.
One could clarify fundamental rights as pre-existing "inherent" rights
and civil rights as government-created rights.
-Where a Federal Right is
implicated, the State Must Provide the Accused a Process that is
Constitutionally Compliant with the U.S. Constitution and Mandatory under
Federal Law.[8]
-The State Must Provide an
Explicit Process Due the Accused to Prove that the Child(ren)
are being Harmed. This set of procedures is commonly known as Due Process.
-Due Process is a Mandatory
Set of Procedures Required by the U.S. Constitution entitling Citizens whose Fundamental Rights are implicated to Consistent and
Fair Treatment.
-Mandatory Fair Procedures
Include:
Express Notice of the
Accusation&a Pre-deprivation Hearing&the Right to Confront Witnesses&an
Evidentiary Standard that is Constitutionally Compliant&and the Least
Restrictive Means to Obtain a Satisfactory Solution.
-Conclusion&Where a
Fundamental Right is Implicated, the State Must Provide Expressly Written
Mandatory Due Process Procedures and Use the Least Restrictive Means of
Intrusion to Achieve an Optimal Outcome.
B. Both Parents Rights are
Diminished Under State Law [9]
-Neither Parent is provided
with Due Process of Law, i.e., in
some states there is NO pre-deprivation hearing.[10]
-No Statutory Scheme contains
a Constitutionally Compliant Evidentiary Standard. [11]
-Statutes expressly written
which Diminish both Parents' Fundamental rights, are NOT Constitutionally
Compliant, and therefore do not meet Strict Scrutiny under Federal Law.
-Conclusion&Where BOTH Parents'
Rights are diminished under State Law, there is NO Set of Circumstances that a
Constitutional Outcome can ever be achieved.
C. Substantive Equal
Protection: Similarly Situated Parents Must be Treated Similarly [12]
-State Implication of a
Fundamental Right resulting in the Arbitrary Classification of Parents into
Suspect Classes (Non-custodial and Custodial) is Subject to Constitutional
review.
-Whenever Government Action
Seriously Burdens Fundamental Rights and Interests, Heightened Scrutiny of the
Procedures is Warranted.
-Where a State Law Impinges
upon a Fundamental Right secured by the U.S. Constitution it is Presumptively Unconstitutional.[13]
-Conclusion&Where a
Statutory Classification Significantly Interferes with the Exercise of a
Fundamental Right, Constitutional Scrutiny of State Procedures is Required.
SUMMARY &
CONCLUSION&
-Where Similarly Situated
Parents Must be Treated Similarly, Suitable and Fit
Parents Must be Treated Similarly.
-Without a finding of
Parental Unsuitability (unfit, unwilling, or unable) by Clear & Convincing
Evidence, BOTH Parents Must be Treated Similarly. The "Best Interests of the Child" standard of
review is not a Constitutionally Compliant Evidentiary Standard when Addressing
Parental Rights Between Suitable and Fit Parents.
-The "Best Interests of a
Child" can be addressed only AFTER a FINDING of Parental Unsuitability by Clear
& Convincing Evidence.
-However, where Both Parents
are Suitable, the State has NO Legal Basis Under State
or Federal Law to Even Make a Custody Determination.
-Where the State has No
Legal Basis to Implicate a Fundamental Parental Right, Both Parents Maintain
Their Inherent Pre-existing Right to Legal Custody of Their Child(ren).
-Because BOTH Parents
Maintain Autonomy in Their Respective Parental Rights, Both Parents Must be Treated Similarly as to Physical Custody (Companionship
Time).
-Since the Child(ren) Cannot be Cut in Half, the Constitutionally
Compliant Solution and the Least Intrusive Remedy is a Presumption of Equality.
-The Presumption of Equality
is Rebuttable, however this Presumptive 'Starting
Point' in a divorce with children Eliminates the Power Struggle for Control by
Equalizing Both Parental Interests. The
Presumptive 'Starting Point' also takes the Wind-out-of-the- Sails of the
Litigants (and their Attorneys) by Eliminating Leverage through Equalization.
-The Child(ren)'s
BEST INTERESTS are Enhanced by Maintaining a Substantive Relationship with BOTH
Parents&a Win-Win situation for Both Parents and Children.[14]
THE BEST PARENT IS BOTH
PARENTS!
[1] Parham
v. J.R, 442
[2] Literally meaning, 'parent of the country
(state)'.
[3] Implicating the Fourteenth, Ninth, and
First Amendments.
[4]
[5] The USSC plurality decision in Troxel v. Granville, 530 U.S. 57 (2000) evinces that all 9 justices
agree that parental rights are fundamental rights, however, the Federal
Magistrate Judge in the Dayton District Court refused to conclude parental
rights were fundamental, and therefore constitutionally protected, resulting in
the first of three issues presented for review in the pending U.S. Sixth
Circuit Court of Appeals case styled, Galluzzo
v. Champaign Cty. Court of Common Pleas.
[6] The United States Supreme Court mandates that
constitutional (strict) scrutiny is the heightened level of scrutiny applicable
to the implication of fundamental rights secured by the U.S. Constitution.
Gender discrimination in state custody determinations is not at issue where a
lesser standard of review (intermediate scrutiny) would be applicable.
[7] Substantive Due Process is defined as the procedural
requirements due when a fundamental right is implicated.
[8]Goldberg v. Kelly, 397 U.S. 254 (1970) addressing the importance of certain property rights (where liberty rights are deemed far more important than property rights).
[9] Admission made by Ohio Attorney General Jim Petro in the
State of Ohios Second Amicus curiae
Brief filed April 8, 2005 in the United States Court of Appeals for the Sixth
Circuit in the pending federal appeal styled, Michael A. Galluzzo v. Champaign County Court of Common Pleas.
[10] Stanley
v.
[11] Clear and Convincing Evidence (of Parental Unsuitability)
is the highest evidentiary standard in civil law that meets constitutional
scrutiny pursuant to Santosky v. Kramer,
455 U.S. 745 (1982).
[12] Fundamental Rights strand of Equal Protection under the
Fourteenth Amendment.
[13] Harris
v. McRae, 448
[14] A Presumption of Equality also enhances extended family
participation with children of divorce,
i.e., grandparents, who have a vested emotional interest, but no legal
recourse, to develop a relationship with their grandchildren. Additionally, the child(ren)s
welfare/best interests would be enhanced by increased accessibility to their
extended family.