Thursday, October 28, 2004

Newdow Presentation

I went back and forth as to if I would post this because it is so long.. but I think it is worth it. Part of this is already here, but this is the presentation in its entirety.

More info on Newdow on this blog here, here and here.

I am not going to comment too much on it, some of it rings extremely true to me, other parts seem a bit sensationalized. One problem I have can be seen in the fundamental fairness section. We don't need to paint primary parents or breadwinners in this manner; it is simply playing to stereotypes of good parents and bad parents and sound frighteningly like the rhetoric we see coming out of the feminist groups, though obviously in a reversed fashion. The argument is that this is unconstitutional - and it would be unconstitutional even if the "stay at home" mom were just as wonderful as the "working mom." In my opinion, anyway. You will have to make your own decision.

I received this in an email an am copying it verbatim:

"Resolved, the current family law system is an unconstitutional system that is far more detrimental than beneficial."


For the first 150 years of our nation's existence, those in power felt confident that only men could own property. Accordingly, children - who were "property" - were "owned" by their fathers, and they were placed in their fathers' custody whenever a judicial determination was necessary.

In the early twentieth century, we "progressed" by asserting that women were far better nurturers than men, and employed the "tender years" doctrine. Those in power felt confident that women should obtain custody of young children.

Now we look at the past, and think how foolish and shortsighted were our predecessors. Those, we believe, were inappropriate approaches to family law. The proper structure - we say as confidently as those in the past - is to focus on "the best interests of the child."

It is my thesis that the "best interests of the child" (BIC) standard - although it sounds beneficent and noble - is no more advantageous or justified than those prior methodologies. What I propose is a "respect for the Constitution" standard, which somehow always seems to yield the optimal results. If we simply accord deference to due process, equal protection and the fundamental constitutional right of parenthood, we will. I believe, achieve far "better" results.

The current framework is clearly not working. The blank in "custody ____" is generally filled in with words such as "conflict," "battle" or "war." And although the current thinking is that such a situation is due to the parent litigants, I believe that assumption is as invalid as it is unproven. People generally don't fight unless they think they are being treated unfairly, or because they believe they will gain advantages. In the current family law systems, unfairness is unabashedly declared to be official policy, and remarkable incentives are held out for those who believe they will be "victorious."

The constitutional violations are legion, yet virtually never discussed. I will briefly list some of the key ones here.

(1) The Fundamental Constitutional Right (FCR) of Parenthood is not treated as a FCR

Although the Supreme Court has referred to the right of parenthood as "perhaps the oldest of the fundamental liberty interests recognized by this Court," the fact is that it is treated as anything but a FCR. Would a judge ever abridge a parent's right to belong to the Catholic Church, an Islamic sect or the Church of Scientology by claiming that was not in "the best interests of the child?" Could we imagine a court telling a mother she can't vote for the candidate of her choice for that reason? Could a jurist prohibit a father from engaging in a peaceful protest because that wasn't in the child's "best interests?" Obviously not, because we really count the freedoms of worship, suffrage and speech as FCRs. But the FCR of parenthood is a FCR orphan, upon which we trample daily in our family courts.

Let us never lose sight of what this right entails, and the harms that follow its abrogation. There is nothing as important, meaningful and life-defining to a person as the relationship (s)he has with his or her child. Few people would give up their homes, kidneys or lives for their First Amendment freedoms, or any other enumerated FCR. But few parents would not give those up for their kids. And to tell parents that they can only see their children every other weekend - a standard "visitation" order - is nothing short of abuse. It is an incredibly cruel punishment and a horrible; life-shattering event like no other. Certainly more than some ipse dixit by an individual who happens to be wearing a black robe must be required before such an order may be imposed.

(2) Equal Protection Clause Violations

(a) Children versus Parents

The family codes specify that it is the "best interests of the child" which are to be paramount. That may certainly win votes, and most parents would agree that they would put their children's welfare before their own. Nonetheless, where in the Equal Protection Clause is government permitted to implement such a rule? We're not talking about protecting children, which government not only has the right, but the obligation to do. We're saying that - given one set of citizens (children) and another set of citizens (parents) - we're going to put the lives of the former set above the lives of the latter. And we don't even care how much worse off we make the parents or how little "better" we make the children. If we can save the child one cough, we can give the parent terminal cancer. If we can give the child an extra nickel, we can deprive the parent of his life's savings. There is no justification or legal authority for this inequity.

(b) Parents Within the Family Courts versus Parents Outside the Family Courts

It is assumed that parents who are separated are not similarly situated to parents in an intact family. But there is no evidence that - were they treated fairly by the state - those parents would be any less similarly situated than parents who are perfectly healthy versus those who have a physical disability; parents who are rich versus those who are poor; parents who are mature versus those who are teenagers; etc. To apply a completely different standard to divorced and separated parents merely on that basis violates equal protection.

(3) Due Process Violations

(a) The "best interests of the child" (BIC) standard is unconstitutionally vague

The BIC standard is unconstitutionally vague, with no safeguards whatsoever to protect the FCR of parenthood that is abrogated by its use. There are no accepted criteria, no scales to measure criteria (even if criteria were accepted), no methods for weighing the criteria against each other, and no means to integrate the criteria over time. Furthermore, the child development "science" is far too rudimentary to make any correlations between a given parenting style and the outcome in a given child for the overwhelming majority of outcomes.

There is no more a "best" for children than there is a "best" for music, political party, religion, environmental policy or anything else. And to give a judge the unbridled discretion to make such determinations - with no basis other than his or her own subjective feelings - is a due process violation that unjustly impinges upon "perhaps the oldest" - and I would argue the most important - "of the fundamental liberty interests."

The problem should be obvious by considering the quandary facing a fit parent who has been told by a judge that, "I've decided it's "best" for your child to abridge your FCR of parenthood." Then what? The judge can pull out of thin air anything (s)he chooses. "You're too rigid." "You're narcissistic." "You don't co-parent well." How does one counter those allegations? There are no elements necessary for the trial judge to reach those conclusions. There is nothing that requires the judge to consider any other characteristics of the parent that might offset those "detriments" (even if they were real). There's no remedial course of conduct the parent can count on to restore his FCRs.

The Courts of Appeal provide no safeguards either. Also lacking any accepted criteria, the Appellate justices routinely defer to the lower court's determination. What sort of due process is there when a sole government actor has unbridled discretion to severely injure a party - and deprive him of a FCR - in a setting where there is no mechanism to prevent, counteract or redress such an abuse?

(b) The application of the BIC standard is unconstitutionally arbitrary

Even if there were some "best interests of the child," the manner in which it is determined is unconstitutionally arbitrary. First, the parents are sent to mediation. What that means is that - unless both parents are willing to be fair - one parent must mediate away the most precious part of his life ? his time with his child. Where else in society do we ever ask people to mediate away their liberties?

When a parent is unwilling to allow for this, the mediation is said to be unsuccessful, and the couple deemed "highly conflicted." The "experts" are then called in. These people, however, have no proven expertise whatsoever to accomplish the stated goal: determining the BIC of a child. Rather, they mindlessly apply mantras that have somehow developed and pervaded the field. For instance, they proclaim, "Children need consistency!" as if they've actually said something. Consistency how? Certainly, a foster child who has no way of knowing where he will sleep the next night, or who will be there to nurture him needs "consistency" in care and protection. But a child with two loving parents does not need any more "consistency" than the consistent knowledge that a devoted parent will always be there for him. The contention that a new custodial arrangement cannot be implemented - especially when that arrangement would likely eliminate rather than exacerbate the interparental conflict - because that would be too difficult for the child is absurd. Parents in intact families put children in day care, send them to sleep-away camp, let the grandparents take them for extended periods of time, get them nannies, discharge those nannies, and impose a whole host of changes without the government or the experts crying "Consistency!" Children start soccer, end scouting, take up ballet, get new friends, change schools, etc. One could well argue that learning to deal with such changes and being exposed to different situations is a benefit, not a detriment.

Our mandatory school attendance laws belie this entire "consistency" notion as well. We take children who have never in their lives been away from their parents, and put them with total strangers for forty hours a week. The State never argues there that children are harmed because of a lack of "consistency." Why, then, is it maintained that putting a child with the parent she loves - but previously only saw 25% of the time - in a custodial arrangement where both parents become equals is problematic?

The answers are absurd. A favorite is to ignore the question and point, instead, to such inane statistics as the fact that only 2% of custody battles end up in trial. What does that prove? An even lower percentage of Southern slaves went to trial to end their injustices. Would that fact be used to show the propriety of slavery?

The fact is that noncustodial parents are told from the outset that they are going to be abused, and that fighting the abuse will only increase the number and degree of the injuries. Few people have the resources or fortitude to challenge a system where the agents who are supposed to protect them proclaim as some badge of honor that they will do the opposite. A parent who fights to share equally in raising his child faces years of horrific pain and financial ruin, with dismal prospects for success. The fact that few take up the challenge in such a setting means nothing.

(c) The BIC standard is unconstitutionally imposed

Absent a finding of neglect or abuse, parents have - as part of their FCR of parenthood - the right to raise their children as they see fit. That is the case from Day 1 through Day N for parents about to be brought into the family courts. On Day N+1, however - even though that parent is exactly as fit and capable as (s)he was on Day N - the standard is changed. No longer does "neglect or abuse" suffice. Rather, a BIC standard (which has no meaning and, therefore, can't be defended against) is instituted. This new standard is applied solely because a very interested party - the other parent, who is being enticed with the rewards of more custodial time, power, control, vengeance ? and, of course, money - has decided to file a piece of paper. Nowhere else would we ever even consider depriving people of FCRs by applying different standards to them solely because some other citizen finds that to be to his or her own benefit.

(d) Strict Scrutiny is required, but not followed

Imagine that Pfizer wanted to put a new drug on the market. The drug is known to have severe, life-threatening side effects. Although the Pfizer representatives say it's effective for treating some disease, there is no study to back up that claim. Without such studies, the FDA would obviously never consider approving that drug.

That approval, however, has been given in the family law system. We know that there are severe side effects, some of which are life-threatening, that stem from the use of the family law "drug." The most important interpersonal bond in the child's life is worsened. Enormous amounts of time, energy and money are wasted. The life of at least one parent is decimated. Yet - without a single study showing that this "drug" provides a benefit - we have approved its use.

With the FCR of parenthood being abridged, strict scrutiny must be applied. This means that the government has the burden of proof to show a compelling interest, that its laws serve that interest, and that the laws that serve that interest do so in the least restrictive manner possible. All three of these elements are required. Government has never provided any.

The interesting thing is that manifest evidence exists to demonstrate the folly of the current approach. Most (if not all) states have a policy for religious upbringing, stating that - absent a finding of harm - both parents have the right to instill in the child whatever religious beliefs they wish. Thus, fathers and mothers know that litigation over religious upbringing will serve no purpose. Accordingly, such litigation is exceedingly rare. Imagine, however, if the legislature were to pass a law stating that, henceforth, judges shall determine the "best religious interests of the child," and that "religion support money" shall be given to the winner. Certainly, no one can reasonably doubt that there would be a marked increase in litigation over religious upbringing were such a law in place.

The least restrictive means of abrogating parental rights is to respect both parents equally. Any honest assessment of our current system makes it clear that we have no idea of what is "best" for children, or that our BIC setup gives "better" results than simply upholding the right to 50% custody for both parents. In other words, we have two routes we can take: (1) treat people unfairly while imposing a system that gives uncertain results, or (2) treat people fairly while imposing a system that gives uncertain results. For some bizarre reason, we've chosen method (1). That makes no sense, and it is not the "least restrictive means" of implementing a family law system.

(e) Fundamental Fairness

Because gender issues often cloud these discussions, consider two lesbian parents. Parent A and Parent B have jointly adopted a child. (Neither is genetically related to the child, and neither bore the child during pregnancy.) Both are equally loved by the child, both love the child equally in return, and both are equally fit. The only difference is that Parent A has decided to spend her free time educating herself, working hard, and saving. Parent B dropped out of high school, has decided to live "the good life," and always spends whatever money she has.

The parents decide that one of them should stay home to raise the child. With Parent A capable of earning much more, Parent B - by default - becomes the "primary parent." In other words, Parent A - because she has worked hard and applied herself - sacrifices the joy of being with her child for the financial security she can bring to the family unit. Reciprocally, Parent B - because she has not worked or applied herself - gets the bonus of Parent A's financial support while she simultaneously gets increased amounts of that child-raising joy.

The child thrives under this arrangement, and she remains equally in love with both parents. During her spare time, Parent A continues to further her education. She spends virtually nothing on herself, saving for the child's education and to achieve sufficient financial security to preclude the child from having to care for her in her old age. Parent B - during her spare time - just watches TV and parties. She saves nothing.

A breakup ensues. Parent A says, "I'm no longer willing to sacrifice my parenting time. I want now for us to share custody equally. Besides, it was always my plan to spend more time with our daughter once she matured."

Parent B says, "No way. The government will maintain the unequal custody because I had more time with our child before. Additionally, because you have accumulated a lot of money, the government will let me use your savings to bankroll my quest to maintain this inequity. I know you planned on increasing the time you spend with our child, but (for me) that's only an additional reason to demand primary custody."

"That's mean and vindictive. Additionally, I don't want to the money I planned to use for our child to fund attorneys. We're both fine parents. Let's simply share fairly," says Parent A.

"Nope," says Parent B. "You have accomplished much and sacrificed much. Now you will be forced to pay for your diligence."

This is not an uncommon initial step in family law conflicts. If the judge agrees with Parent B's position - as judges often do - Parent A has two options: give up the most important thing in her life (i.e., her time with her child), or fight. There are no other choices. And, if she fights, she will lose the fruits of years of her labor (while Parent B loses nothing) simply because she (Parent A) chose to apply herself and sacrifice parenting time.

This is simply unfair. One should not be penalized for working hard and wanting to share equally, while another is rewarded for not working and being selfish. Additionally, having a court mandate that an individual must use her savings to pay attorneys to deprive her of her own fundamental constitutional rights clearly violates the First Amendment.

(4) Fourth Amendment violations

Family Court judges generally emphasize that they would be perfectly happy if the two parents would come to an extra-judicial agreement In other words, if Parent B (in the preceding example) agreed to share 50-50, Parent A would have obtained her rightful equal parenting time. Only because Parent B didn't agree is Parent A subject to infringements of her fundamental rights. The reason given is that there is a compelling state interest in doing what is "best" for the child. But how compelling can that interest be if the judge would have willingly abided by a 50-50 arrangement had Parent B agreed?

In any event, an "expert evaluation" is usually ordered by the Court at this point in time. The experts - whose skills in making "best interests" determinations are proven to no greater a degree than those of a psychic or some person off the street - are then given the power to make all manner of "searches" and "seizures." Without any probable cause, the Parents A of the world are forced to open their bedrooms, their medicine chests, their personal records, and their thoughts to some stranger. Again, this is done with none of the mandates required under "strict scrutiny."


Those who have created our family law system are undoubtedly well-meaning and convinced of their righteousness. But "[h]istory teaches us that there have been but few infringements of personal liberty by the state which have not been justified ? in the name of righteousness and the public good, and few which have not been directed ? at politically helpless minorities." No one can be more politically helpless than a party who is told by the judge before whom he appears that the court has no interest in being fair to him. That is the situation for parents who are fit parents, seeking only to uphold their most precious liberty interests.

Our current family law system is rife with conflict, and causes unequivocal harms. It is time to consider the possibility that this is not due to the parties, but that it is a "systems problem." Especially with no proven benefits, our judges and legislators must put an end to a framework that inflicts as much pain as does this one. Perfectly innocent parents - who want none of these battles, but only to enjoy their fundamental rights - have their lives shattered by their government, without any proven countervailing benefit. This is abuse, produced for no other reason than those invested in the system have refused to be rigorous and objective in considering what they are doing. This repetition of history - following in the footsteps of the "only-men-can-own-property" and the "only-women-can-care-for-children" fallacies - must end. Simply respecting the rights of parents is a methodology ready to be placed in the stead of the illusory and unconstitutional "best interests of the child" scheme now grievously injuring parents and children.


(1) The legislature finds and declares that protecting children from harm is a compelling state interest. However, determining what is "best" for a child does not protect that child. On the contrary, it often fosters interparental conflict; wastes enormous amounts of time, energy and money; and decimates the lives of parents. These are all harms to children.
(2) The legislature also finds and declares that protecting adults from harm is a compelling state interest as well. Abusing adults is a harm, and to abridge a parent's fundamental constitutional right of parenthood - absent an adequate justification - is abuse. This is not only a harm to the parent, but a harm to his children as well.
(3) In view of the foregoing, the legislature finds and declares that - absent a finding of real harm - all parents have an absolute right to equal shared custody of their children.
(4) Real harm within the family law context is defined precisely as it is outside the family law context. Parents with concerns that real harm is occurring due to the other parent's custody may contact CPS for assistance.
(5) Any parent may bring an action in court - outside of the CPS system - claiming real harm due to the other parents' custody. If real harm is not proven, the accusing parent, and his or her attorney, shall be joint and severally liable for all of the accused parent's legal fees.
(6) Absent a finding of real harm:(a) Parents have the absolute right to make whatever arrangement they can agree upon.(b) Parents who are unable to agree upon a custody arrangement shall be required to go to mediation. Unless agreed upon by the parents - or unless an equal parenting plan is not possible without real harm occurring - any custody plan shall adhere to an equal (i.e., 50-50) shared parenting arrangement.(c) If mediation fails, the case shall be handled by the Court. Unless agreed upon by the parents - or unless an equal parenting plan is not possible without real harm occurring - the Court shall adhere to an equal shared parenting arrangement.
(7) If real harm is found, the Court shall specify precisely what that harm is, and the evidence upon which its findings of harm are based. The Court shall then order a custody arrangement as near as possible to an equal shared arrangement as can be created while obviating the given harm.
(8) Expert evaluation:(a) The Court may order an "expert" evaluation only upon a significant suspicion of real harm. The suspected real harm must be detailed prior to the "expert" evaluation.(b) Absent some evidence that a given type of training results in "better" outcomes, no special training shall be required of any "expert" or mediator. (c) Every "expert" or mediator shall be required to provide to each parent his/her hourly fees, the average total cost of his/her evaluations or mediations, and the results of his/her own evaluations (see the following section (9)(a)).
(9) Evaluation of the Family Law personnel(a) Every "expert" and mediator shall be required to provide each parent with a confidential evaluation form to be filled out by each parent after that "expert" has completed rees report. The judicial council shall keep records of evaluations of all "experts" and mediators, which shall remain public information.(b) Every judge shall be required to provide each parent with a confidential evaluation form to be filled out by each parent after every judicial order. The judicial council shall keep records of evaluations of all judges, which shall remain public information.



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