The state extends its reach into American families every day: Is it constitutional?

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Father’s rights on Singledad.com. Rick Ortiz of DadsDivorce.com explains how experts in the field of family law are finally challenging what divorced and unmarried non-custodial parents have known for some time… that their constitutional rights and the rights of their children are being violated.

Experts in the field of family law are finally challenging what divorced and unmarried non-custodial parents have known for some time… that their constitutional rights and the rights of their children are being violated with cookie-cutter custody arrangements that are all-too-common in family law courts across America.

As happens every day in America, thousands of married couples decide to file for divorce. For our purposes, let us agree that our couple consists of two individuals who are both professionals with one child between them. They both work outside the home, and both have equal future earning potential. Both have proven themselves to be fit and loving parents. Both have a good relationship with their child and with the child’s doctors, teachers and other professionals. Essentially all things are determined to be equal– even in the family law court’s eyes. Most importantly, however, neither parent has been shown to in any way be negligent or harmful to their child. So, why is it that in most states across the country one of them will walk away from the marriage being significantly penalized in terms of their relationship with their child.

The real constitutional issue in question when courts dictate to parents what will happen to child/parent relationships as a result of custody litigation is: Whose child is it? All too often family courts intervene and dictate to parents decisions that should be left to the parents themselves. The notion that the child is the creature of the state has been refuted by the US Constitution. According to constitutional law attorney, Stanley Charles Thorne, "The concept that the state can control the child and dictate to parents what happens to the child was rejected a long time ago by US Supreme Court, and they were unequivocal about it."

In custody litigation, we often see the state intervening and involving itself within the intimate parent/child relationship that each parent wants to have with the child. Thus, we see the state routinely overstepping its authority and dictating not to just one, but to both parents, the nature of future issues related to the child such as parenting time, access to medical records, schooling and much more. Rather than helping two fit parents arrive at a compromise or accommodation regarding the child, "what we see in typical custody litigation is a contest of wills in which the state intervenes and dictates what will be done with the child."

According to Thorne, "The child is not the state’s child. You as a parent, unless you have conducted yourself in a way that has caused abuse, neglect or threat of imminent peril to the child, have the primary role in the child’s life against a third party such as the state."

The question that must be asked is: in cases where you have two fit parents, how do you help them resolve their competing interests involving having time with their children? In most custody litigation we find a protocol where the starting point is to create a lopsided time arrangement where one parent has a minimal amount of time and the other parent has the vast majority of time with the child. "Instead of starting the parents in a place with equality and mutual respect and dignity, the roles are mismatched where one parent is marginalized out of the child’s life," Thorne explains.

How do the courts need to address the rights of two fit parents who have decided to split up, but who each deserve time with their child or children?

Almost universally across the United States, judges wield much discretion without the proper guidance and social science knowledge as to how to make informed decisions regarding the true best interest of the children. And what’s more, they simply don’t have the constitutional authority to make these decisions.

When may the state may utilize its authority to determine the fate of a child’s relationship to his or her parents? The answer is clear: when a child is in danger of harm. But, this danger does not come up in the vast majority of custody cases. When a parent, or both parents, are fit and have done no wrong that may endanger the child, the state has no triggering event to activate what is called the Parens patriae authority which is the provision in constitutional law that protects the weakest individuals such as children and mentally ill by allowing the state to step in and decide their fate in order to protect them.

The constitutional question having been answered gives way to the practical question of what a potential non-custodial parent is to do when judges are routinely making "best interest of the child" decisions without the authority that matches the power that they are presently exercising in family law courts. Armed with this knowledge of the boundaries that the state must respect regarding the parent/child relationship, what should a parent do?

Thorne asserts that, "The argument that the state should not intervene or interfere in your ability to maintain your parent/child relationship unless and until you have been proven unfit should be a part of the arsenal that your attorney plans on using on your behalf. Parents who are treated with equal dignity and respect can and will usually work out their parenting relationship with their children."

The Supreme Court of The United States requires a "clear and convincing" evidentiary standard before it is deemed acceptable for the state to take over the role of determining the fate of your parent/child relationship. In short, you have the human right to parent your child without state interference unless there are facts that give the state its right to exercise its authority in your case.

Thorne cautions, "The family court system is a very dynamic, efficient and powerful process that picks up families and often times invades parental roles in such a way as to knock you off balance. Parents need to stand up for themselves with quiet dignity and respect for the court as well as an understanding of what their parental rights are. The goal is that your child will end up with the benefit of a meaningful and ongoing relationship with both parents."


Rick Ortiz is the editor of dadsdivorce.com. To view the interview with Stanley Charles Thorne that served as the basis of this article, go to: http://www.dadsdivorce.com/blog/stanley-charles-thorne-the-constitution-and-your-parental-rights.html

Richard JaramilloRichard “RJ” Jaramillo, is the Founder of SingleDad.com,
a website and social media resource dedicated to single parenting and specifically for the newly divorced, re-married, widowed and single Father with children.
RJ is self employed, entrepreneur living in San Diego and a father of three children. The mission of SingleDad is to help the community of Single Parents
“Make Life Happen…Again!”

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Richard “RJ” Jaramillo, is the Founder of SingleDad.com, a website and social media resource dedicated to single parenting and specifically for the newly divorced, re-married, widowed and single Father with children. RJ is self employed, entrepreneur living in San Diego and a father of three children. The mission of SingleDad is to help the community of Single Parents “Make Life Happen…Again!”