According to Young v. Hector, 740 So. 2d 1153 – Fla: Dist. Court of Appeals, 3rd Dist. 1998, “Nancy’s fairness argument is irrelevant to how custodial responsibility should be allocated…. The court should allocate custodial responsibility based on the parents’ past caretaking roles.”
This is wrong and flawed thinking on the appellate court’s part. It appears that they choose to follow the Principles of the Law of Family Dissolution: Analysis and Recommendations,Tentative Draft No. 3, Part I, American Law Institute, § 2.09, at 121 (1998) as opposed to following SCOTUS and their interpretations of the United States Constitution regarding parental rights.
This case ruling in its entirety is a demonstration of how even appellate court judges are letting other people dictate the law to them while ignoring the foundation our founding fathers and SCOTUS have established as fundamental to the continued health and welfare of our society and communities. Remember that this case was ruled on before SCOTUS ruled on Troxel so they didn’t have this one to guide them.
Florida 3rd appellate court in this decision originally based overturning the trial court’s ruling as an abuse of discretion decision on the following but then overturned their ruling in an “en banc hearing immediately following”:
“Moreover, the guardian ad litem’s recommendation was also based on the fact that architect has been “away from the 1158*1158 home for substantial periods of time and [the attorney] has been the dominant influence.” Under the circumstances of this case, the fact that architect was away from the home prior to the separation should not be a “determinative factor” where the architect has continually been the primary caretaker since the fall of 1993.” –Young v. Hector – Fla: Dist. COA 1998
This is absurd to use the decisions that the parents made regarding their employment when deciding custody time for each parent:
The appellate court here blatantly states that the judge is not expected to shed his/her inclinations, so how can there be no bias? This type of injustice is prevented when the constitution is applied to trial court decisions regarding parent’s and children’s rights
The appellate court continues with flawed thinking in their en banc opinion. It is not only flawed but unconstitutional and treats the parents as if their rights can be disregarded and a judge’s opinion and preference can be inserted if he gets enough people in front of him to support his bias.
“Indeed, the trial court has the unique advantage of meeting both parents prior to making its decision. Thus, the trial court, unlike an appellate court, is entitled to rely, not only upon the record evidence presented, but upon its mental impressions formed about each of the parents and their respective parenting strengths and weaknesses. Moreover, trial judges sitting as triers of fact in these proceedings are not required to shed their common sense and life’s experiences when they don their black robes to preside over these proceedings. As long as the trial court’s decision is supported by substantial competent evidence and is not based upon legally impermissible factors such as gender bias, it must be affirmed on appeal.”
They appellate court needed to include other legally impermissible factors that are legally prohibited for the judge before remanding back so that a proper ruling and justice could be done. We created a short list for them.
A few of these legally impermissible factors should also include:
It is legally impermissible for the judge to base his decision regarding child custody time on the following factors:
legally impermissible for a judge to substitute their personal preferences over a fit parent’s preferences even if the judge believes that his/her preference or decision is a better one than the fit parent
legally impermissible for a judge to substitute guardian ad litem’s, neighbor, the other parent, teacher, or anyone else’s personal preferences over a fit parent’s preferences
legally impermissible for a judge to divide time unequally between fit parents
legally impermissible for a judge to grant custody to a parent who already has custody by natural right
legally impermissible for a judge to intervene in custody matters between fit parents with no proof of clear and present danger to the child and no compelling state interest to do so
legally impermissible for a judge to enforce a state statute that violates the U.S. Constitution and SCOTUS opinions.
Remember judge’s swear an oath to protect the United States Constitution, the supreme law of our land. They have been failing to do this and have failed to update their practices in their family law courtrooms to reflect that the Fourteenth and Thirteenth amendment have limited their discretion in child custody cases, child support, and alimony.