TOOL OF THE DAY: How to Argue to the Court to Abolish the Best Interest of the Child Doctrine.
CATEGORY: Family Law Policy Analysis
Today, I discuss how to abolish the “Best Interest of the Child Doctrine” (BIC) from being used in your family court case. (This only applies if you have not been proven unfit or a clear and present danger directly to your child.) There is the myth that fighting for equal or shared parenting in a child custody battle takes the focus away from what is best for the child.
Be prepared that when you challenge the Court and object to them using BIC, you most likely will be disparaged and put down. You will even be accused of putting your own interests above your child’s. You might even be told that focusing on your rights takes the focus off of what is best for your child. You will be made to look selfish and to look like you are unable to put your child first. Your attorney might try to convince you to ask the court to appoint a separate attorney to protect the interests of the child. Don’t do this! Even if the court tries to impose this on you. The Court may try to find ways to punish you and might even appoint a child attorney (amicus/Guardians ad litem (GAL)/best interest attorney (BIA) despite your objection. The Court will do everything they can to make you feel bad and look bad for daring to challenge their power. The Court will do everything they can to discredit you and make you look like raising your rights is in conflict with the child’s rights. This couldn’t be further from the truth. Actually, your child’s and your rights are aligned with each other. Your child’s rights are protected by you. You hold your child’s rights in trust. You must protect your rights in order to be able to protect your child’s. Your rights protect your child from losing one of their parents, from losing the stability they receive from each of their parents, and protects the child from losing the direct custody, support, and development that the child gets from each of its parents equally.
Your rights are not in conflict with the child’s rights just because you are in disagreement with the other parent. The Court makes you believe that your child’s rights are elevated above yours in a divorce and that they need protection from the decisions you make for them. The Court will make you believe that the Court has a right to force you into an impossible standard, and that you have to make best interest decisions for your child. The Court process is tricky and if they can get you to believe that when you and the other parent disagree on the child’s best interest, the Court gets to take it over and decide, you have given them a pass to skip over applying the constitutional protections. So, do not believe them. And do not ever feel bad for challenging the Court and objecting to the Court applying the idea that BIC is something that you should be held to. Historically, parents have been punished for fighting the court on best interest and for daring to raise their own rights as the primary issue. Parents have been accused of thinking of only their own interests. The only way the Court can have any power over you is to trick you out of your rights. So if they punish you for bringing up your rights then they protect their ability to abuse their power and to skip applying your rights. Once your rights are subverted the Court can do as it pleases. Your rights are all that stands between your child and the Court!
Why Would the Court Do This?
To protect the Court’s power and money. The process can be made more expensive if they can make you qualify to continue to be a parent, with one of you having more power and authority than the other. Your rights actually protect you from being required to qualify and protect you from being made less than an equal parent to the other. Your rights require that the Court apply constitutional protections before they marginalize you. If you do not know this, then they can marginalize you. Once they have done this it is easier to discredit you and impose more and more procedures that cost you. The goal of costing you more money is to get you to run out of resources so that you cannot continue to challenge them.
The Court Says the Constitution Doesn’t Apply.
We’ve all probably heard about common law. But what is it really? And why does it matter to you?
In order to understand this concept better, first we have to understand where common law comes from.
Common Law is judge made law. It is “The body of law derived from judicial decisions, rather than from statutes or constitutions.” A common law doctrine is when a multitude of decisions are made over a long period of time.
Does this mean that the Constitution doesn’t apply? Absolutely not! Does this mean that the Constitution doesn’t apply in some courts like the family court? No, it does not. You would refer to Marbury v. Madison for the guiding principle on this one. All courts within the U.S. are subject to the United States Constitution.
Then if this is the case how are the family and domestic courts continuing to apply common law doctrines like “best interest of the child?”
First let’s clarify something, best interest of the child may have started out as common law when there was no guiding principle for a court to sue for deciding between two fit parents in disagreement. No statute to address the situations they were facing, no 14th amendment, and no Supreme court rulings specifically addressing a parent no longer married to the other parent and in dispute with that parent.
In those situations, judges can create law. Essentially when there is no controlling statutory law or other higher law at the time a series of rulings can lead to the creation of a common law doctrine.
Okay so now we have the best interest of the child doctrine. Before this we had the tender years doctrine and before that we had courts defaulting to awarding the children to the father’s. You are probably wondering how did the Best Interest Doctrine get created and continue to exist when the 14th amendment has been around long before this doctrine.
Let’s first look at how did we abolish the other two doctrines? Way before the tender years doctrine, men were generally awarded the children because they were able to earn and provide for the children. Because they provided for the children, they were entitled to the children as well. The women were not allowed to work at that time.
So what changed? Women felt that this was unjust and unfair treatment. They also felt that this harmed the children since they were the nurturers and the fathers were the providers. But how were they going to get help from the courts when there was no law or doctrine that stated the court could award the child to the mother?
The women (it turns out a woman initially) convinced a judge that she required protection as well as the child required protection that only a judge could make by making judge made law. Since there were no laws protecting women and children at that time, the judge was able to create it. After a long series of rulings, this led to the creation of the Tender Years Doctrine.
So as it goes, the Tender Years Doctrine was challenged by fathers. And after many deliberations and showing the court that times had changed and women were able to work now and were not the sole nurturers to the children. The court once again responded to the need for some new policy. (Of course there were more details to it, but this should suffice for our purposes here.)
This brings us to today where parents throughout the United States have been struggling with getting rid of the effects caused by “The Best Interest of the Child Doctrine.” Why might that be? Perhaps because the best interest of the child doctrine has led to more abuses of power and harm to children than anyone ever dreamed.
Originally this doctrine might have been created to rid the Court of gender bias, while also striving to protect the children from their parent’s disagreements. But this doctrine has failed on both accounts. Now the Court can be biased equally if they so choose. And the children are involved regularly by judges, GALs, and other so-called experts of the Court. The best interest of the child policies are disadvantaging all parties.
Many organizations and people try to improve on the elements that the Court uses to determine the best interest of the child. They might think that this will correct the problem. We do not believe that this is the case. In fact, this usually just imposes more expense on the parents and more pressure being placed on the child.
We believe that the argument needs to change now. It’s time to abolish the best interest of the child doctrine.
But how do you do this? And what would you replace it with? When this happens, where do we turn?
We turn to the protection of individual rights and equal protection of the laws. This then is no longer about picking between the parents but instead about applying the rule of law that protects every individual equally (which in turn protects the children) so that we can have fairness in the process, reduced bias and personal beliefs affecting the decisions, and truly have opportunity for justice for all.
So what are judges supposed to do now?
- The judge must examine prior opinions that led to the creation of the common law doctrine. In this case, the best interest of the child doctrine. (This doctrine, by the way, is statutory now in most if not all States. Doctrines can be statutory or made statutory after many rulings have made it a precedent.)
- Next the judge should examine any policies in the State that led to the creation of their best interest doctrine.
- Then the judge should examine the need for the doctrine. This examination should consist of the following:
- What purpose did the policy of the state have?
- Does it still serve the purpose it was originally intended to serve?
- Is there higher law that has passed since the creation of the doctrine? (Even if the doctrine was created after a higher law was passed, the higher law would still apply.)
- Is there a consistency issue when you apply the higher law?
- Does the doctrine need to be abolished to solve the consistency issue?
- Does applying the doctrine to the case before the court violate any higher principles?
- Does the doctrine need to be abolished?
- Does there need to be another layer of examination applied before applying the doctrine? In the case of family law divorces and child custody battles between parents, since the 14th amendment now applies and there is now case law that has created law that is superior to the old common law. Parents have rights superior to the Court until certain conditions have been met. These are proving the parent unfit or that there is direct imminent danger to the child by the parent.
- Is there now a better way to serve this need that the public policy wishes to serve?
During the infancy of the best interest doctrine many things were different. The best interest doctrine at its infancy was believed to be needed at that time to protect parents from being discriminated against and to protect children. This doctrine has not served this purpose and in fact is hurting children and their parents. At the time, there was no understanding that parents are the first protectors of their children. There was also no understanding that two parents in dispute still got protection of their rights individually. There also was no understanding that children’s rights are held in trust by both parents equally until the parents are proven to be unfit, or clear and present danger, or when there is an exception with one of the child’s rights. There was no understanding that there are some harms that the Court cannot protect the children from…divorce is one of these harms, parents in disagreement is another, and children having two parents equally and living in two homes is one too.
States were not required to apply the rights of the U.S. Constitution to the individuals originally — the U.S. Constitution only applied to the federal government.
Once it was found that this didn’t make any sense for the rights guaranteed in the U.S. Constitution to not apply to the States, the 14th amendment was fought for and passed. Many laws have had to change in order to be in compliance with the application of the 14th amendment to the States.
The family courts have been able to avoid a serious examination and abolishment of the best interest doctrine for so long not just because it is easy to inflame the public when it comes to the safety and welfare of a child, but also because parents have been asking the courts to provide them with relief in the form of reducing the other parent to a visitor (and both parents have been consenting to the judge determining best interest of their child). Also because there is caselaw that has adopted the view that a parent who raises their rights is unable to put the child’s interests first. States have bought into this view and now perpetuate it with the false dichotomy that the child’s rights and parental rights are two competing ideals, not that the two are symbiotic. When parents forfeit their rights to the court and ask for their guidance, there is nothing in the Constitution that prohibits them from doing so however. You have just given up your protection of the Constitution, and thus the Best Interest of the Child Doctrine can be used.
(NOTE: I tend to over simplify in these columns just so we can focus on one specific tool at a time. So just keep in mind that sometimes there can be other arguments regarding whether or not the judge is allowed to violate your rights and the child’s rights and come to a decision of unequal time between the parents without still meeting the proper triggers.)
Now you can ask the judge to question the relevance, the need, as well as the consistency of the best interest doctrine with proper examination of the doctrine as outlined above. You can then ask that the doctrine be abolished from being used in your case, if you have proven that upon its examination it no longer serves as proper guidance for applying the proper rule of law.
What does this mean for you if you persuade the Court to apply the 14th amendment to your child custody, child support, or alimony disagreement? You will have opened the door for abolishing application of the best interest of the child doctrine in your case in the Court. You will have opened the door for arguing against requiring social studies, psychiatric evaluations, GALs, and many other burdens being imposed on you.
(NOTE: We understand that there are many personalities out there that have used the process to harass and control you. And that you might think that forcing psychiatric studies and other things will protect you and your child from having to deal with the other parent. There can be tremendous financial burden placed on you if you continue to pursue this path under the lowered standards. Even when you get free representation through a domestic violence channel, keep in mind that many parents continue to suffer because the discretion you give the judge when you ask the Court to use lowered due process standards means that there is higher risk of error. Giving judges more training on the broken down process that is being used today does not stop the judges from applying their own personal biases and personal beliefs. This method that we write about on this post of applying your rights protected by the 14th amendment might mean that the other parent won’t be able to take control over you or your children through the courts so easily. They won’t be able to take advantage of you so easily anymore either. So if you are dealing with narcissism, parental alienation, or other disorders from the other parent, this method might help you protect yourself from the court making errors and cutting you off from your child. It doesn’t solve every problem in the system. It doesn’t solve the criminal justice system. But it does provide you with an added layer of protection from being taken advantage of by the abusive behaviors of the other parent through the Courts.)
You will be one step closer to proving your argument that the State is not allowed to take action against you without meeting proper thresholds.
And remember Due Process applies when the State acts against you. Have no doubt, even if your case is parent versus parent, state power is still being used. And the family courts regardless of how many times they want to deny this are State actors. The Due Process clause of the 14th amendment doesn’t govern how the State sets rules, it governs how they apply them to YOU.
Check back tomorrow for some more tools to help you protect your family through the process!
Read our book for how to develop your arguments and for citations of specific cases that you can use in your arguments to the court when you are arguing for the proper protection of your family rights.
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Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author
Divorce Solutions and Child Custody Solutions
Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)
Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)
Twitter: https://twitter.com/fixfamilycourts (@fixfamilycourts)
Disclaimer: I am NOT an attorney or a lawyer. I do NOT practice law in any federal or State court system. Any information provided by me to you, regardless of how specific, is NOT intended to be legal advice under any state or federal law. I provide research, written strategies, and non-professional personal opinions on the Constitution and State laws as free exchange of politically important information that also serves an important public need and interest allowed under the First Amendment. You are highly encouraged to engage an attorney in your State to help you with the specifics of your legal issues and the law in your State. If you are a pro se litigant then you bear all and full responsibility for understanding the law in your state and acting under the law in your state. Nothing you receive from me is intended to be a “legal” document for purposes of any type of filing in any court. You are free to use my words for your personal non-commercial benefit, or as an aide in petitioning your government for redress of perceived wrongs, if properly cited where appropriate. YOU TAKE SOLE RESPONSIBILITY FOR ANY LEGAL ACTIONS YOU PURSUE AND THE RESULTS THAT YOU GET. I BEAR NO RESPONSIBILITY FOR YOUR RESULTS. MY OPINIONS ARE NOTHING MORE THAN MY PERSONAL NON-PROFESSIONAL OPINIONS OR BELIEFS. I MAKE NO CLAIMS OF LEGAL COMPETENCY IN THE LAW UNDER ANY GOVERNMENT STANDARD OF COMPETENCY IN THE LAW.
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Challenging the Constitutionality of “the best interest of the child” statute.
If you want to persuade the courts you must know your rights. Parents and attorneys who do not understand your rights, have been making the unsuccessful argument that “the judge didn’t properly determine Best Interest,” which unfortunately is the path many parents take, making it nearly impossible to win your appeal in Family Court. Visit www.fixfamilycourts.com/members to learn about your rights and see the training that this mother completed that helped her formulate her arguments.
THE APPEAL EXCERPT READS AS FOLLOWS:
“Plaintiff challenges the constitutionality of state statue §46b-56(b) that allows the court to determine what is in the child’s best interests and substitute its judgement over the judgment of a fit parent.
The requirements placed on parents in a custody dispute are patently unconstitutional in that parents don’t know the “rules” of their case until after judgement is rendered. When two fit parents are forced to litigate to preserve their natural rights in state court, the ultimate best interest standard comes down to nothing more than an opinion of a state judge, who, under the privilege of wide discretion, applies ex post facto rules to the “losing” parent. The best interest standard is used as a penal code because it is used as a tool to strip a parent of civil liberties and should be treated as such for purposes of challenging it. §46b-56(b) is unconstitutionally vague in violation of the United States Constitution. “Under the requirements of due process of law mandated by our federal and state constitutions, a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid.” State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987). In Proto, it was concluded that “persons of ordinary intelligence” lacked fair warning of what conduct was illegal and what was permitted. The Connecticut Supreme Court concluded that the statute in question was impermissibly vague, in violation of the Defendant’s constitutional rights to due process of law. See also: State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980); see Buckley v. Valeo, 424 U.S. 1, 77, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926); State v. Williams, 205 Conn. 456, 469-70, 534 A.2d 230 (1987). “‘[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.’ Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982).” State v. Indrisano, 228 Conn. 795, 803-804, 640 A.2d 986 (1994). Because the “best interest” standard is designed to infringe on free family association, a stringent vagueness test should apply to §46b-56(b). The court applied the best interest standard set forth in §46b-56(b) to deprive Plaintiff and her son their rights, using a mere preponderance of evidence standard. The statutory best interest standard is not a trigger for the state to intervene in a fundamental liberty interest. There’s nothing “standardized” about the best interest standard, and it’s not a set of rules any parent can refer to and reasonably uphold. Under the “best interest” standard, fit parents lose fundamental rights for failing to live up to the opinion of a judge for parental or lifestyle choices made within the marriage and were perfectly legal and acceptable within the marriage. In this instant case, even if the court’s negative opinions about the Plaintiff were true, the court applies ex post facto punishment to the Plaintiff, because she could not have predicted that her private thoughts and feelings that were not in evidence would later be punishable. The “rules” in her case were formulated at the time of the final judgement. This is commonplace in Family Law. Plaintiff asserts that under the best interest standard, there is no legal standard or statute an otherwise fit parent to live up to, to win the theoretical approval of a judge that will rule in future proceedings. The “best interest” standard is unconstitutional and can only be applied in the context of parens patriae when the child has no fit parents, or with the application of the constitutional balancing test. Parents entering divorce proceedings are subject to a higher scrutiny by the state on their parenting style, their health, hobbies, and personalities, all in the clear absence of unfitness. It’s unconstitutional for fit parents to be subject to loss of rights for the protected choice to dissolve their marriage.”
—- END OF APPEAL SNIPPET —–
You can learn to argue like this too. Find out the path that we took this parent on that helped her understand and write this appeal.
Go into our member site to see where we have updated this argument. The highlighted areas should not be copied and continued in your appeal argument. Those are not technically precise. Get the updated version in the members only site and make the best argument you can make so that you can fight for justice and overcome the abuse and suffering the courts have put you through unconstitutionally.
Each state has different rules for challenging statutes. Please consult an attorney to find out what those rules are. For instance, in Texas, a parent must notify the Attorney General when they are challenging a statute. There is a government form to do this. If you do not follow these rules you could have your argument dismissed.
*We have updated this post from its original posted on January 18, 2015 to include an appellate excerpt that we feel is a beautiful example of how parents are processing our arguments.
DISCLAIMER: We are not attorneys, are not trained in the law, do not practice law, and are not a substitute for an attorney. These arguments however are unique to us and they did not exist before we started teaching them. These arguments are copyright protected. Please get permission before you re-print or re-publish any of our materials. You may use the materials for your own case as you see fit. If you would like someone else to use the argument please refer them to us so that we can make sure that they are getting the most up-to-date information.