TOOL OF THE DAY: Child’s rights Violated by Current Family Court Practices
CATEGORY: Family Law
The legal presumption that a state may “grant” or “assign” custody or possession of a child to one parent over another parent based on nothing more than a change in the marital status of the parents is a legal legacy of the idea that parental rights are a function of the marriage between the child’s parents and is facially unconstitutional as a violation of substantive due process and is an invidious classification under the equal protection clause.
Fit parents enter divorce with full and equal parental rights to their children. Where the state presumes to “assign” or “grant” rights to one parent over the other as a result of a divorce petition, the state in fact infringes on the rights of one of the parents. Where one parent leaves a divorce proceeding with less than equal rights with the other parent, that parent’s fundamental rights have been infringed based on an invidious classification.
Children, who are not parties to a divorce proceeding and who have no basis for standing in a divorce proceeding, enter the proceeding with full family association rights to both parents.
Where the state reduces those rights with one parent, the state infringes the First Amendment rights of the child based on an invidious classification.
Where both parents are fit and willing to parent, the state lacks even a legitimate interest in choosing one protected family unit over the other. Where the state presumes that one family unit must be chosen over the other without proving a necessity to act and without proving that doing so is the least restrictive means to achieve a compelling state interest, the state violates the procedural due process required of fundamental liberties in general and First Amendment Free Association protections specifically.
