Navigating an Equal Protection argument in the Supreme Court can be extremely tricky. I just touch on the subject here to give you an idea of how you might approach it. I have open discussions on this and other constitutional issues regarding parental rights on my linked in at and there is more extensive coverage of it in our new book coming out soon: “Not in the Best Interest of the Child: How Divorce Courts get it all Wrong and How the Constitution can Fix It.”

You might have asked yourself how is it that courts can treat divorcing or divorced individuals differently than married ones. We asked ourselves the same thing. So while writing the book, my husband had some amazing revelations that will change the entire way that we see divorced individuals. I won’t go into detail on that and give too much away that he worked so hard on. But the fact that the courts are treating us like second-class citizens when we go through divorce does raise the question of whether they are allowed to do this legally.

“The Equal Protection Clause of that amendment (the fourteenth amendment) does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920).”” (Parentheses added). From Eisenstadt v. Baird, 405 US 438 – Supreme Court 1972 which took this reasoning out of Reed v. Reed, 404 U. S. 71, 75-76 (1971)“

After reading the above quote from Eisenstadt, I went on a hunt for a SCOTUS opinion on the matter. If you work in the field of divorce you know that there are very few SCOTUS cases actually dealing with divorces since they rarely ever get to that level of review. Well, lo and behold, my amazing husband found one where they talk about best interest. It’s sort of indirect but it is the best we have found so far and satisfies some of what is needed for an argument. This applies because the courts assume the authority to apply the best interest standard differently to married than they do with divorced couples which brings in to question what laws are they using to justify this different treatment. And are those laws constitutional. The question here then would be can they treat married and unmarried people differently under the law. The question is, is there anything unique in divorce that allows them to treat fit parents differently and deny them their fundamental liberties under different grounds then applied to married or unmarried people?

It looks like Sidoti is saying that “best interest of the child” has “a fair and substantial relation to the object of the legislation” under equal protection, but they also mention that the lower court did not establish the groundwork and that they did not find the parent unfit. So even though this case was not one on Equal Protection or one evaluating whether or not best interest standard meets the standard. Nor were they even addressing the constitutionality of the underlying state laws that define custody. This is a fact-specific case where they were saying in this case can they use prejudice as a reason to deny custody, and further they had to evaluate did they use prejudice to deny custody.  Many cases like this one do give us insight into their thinking on matters that are not necessarily being evaluated. And this rationale would follow other SCOTUS cases that have resoundingly made it clear that parents are the parent of FIRST RESORT, not the state and that their parenting rights are fundamental and that fundamental rights before being infringed upon require the highest level of protection.

When you pursue arguments like this at the state court level it is not so important that you have all of the names of all of the cases or whether the Supreme Court has made an exact ruling on the exact issue, state courts can rule on it regardless. If you frame your argument properly and convince them they can create new law by ruling on it for your case. Possibly saving you a lot of time, money, stress, and heart attack while having to appeal.

My husband, the primary author of our upcoming book states that “The Equal Protection question is: Do I as a divorced parent have the same fundamental liberty interest in my children as a married or unmarried person does, and if not, what is the constitutional basis for that?” What divorce courts have been doing is saying that “because you are divorcing your fundamental liberty interests no longer apply”. Ron also says, you either have fundamental liberty interests in your children or you don’t. And if you have them, the state can only deny them under certain situations. What everybody wants to do, and what they do is they have this innate bias that they have to step in when parents are getting divorced, and then they just don’t even bother make an argument. They don’t even question the fundamental liberty of it. They just step right in and just want to take over control.

What we are saying needs to be done is, step back, strip out the bias, and apply an appropriate legal argument. We believe that what you will find is that they don’t have one. All they have is bias and prejudice against divorce people, that’s all they have. They have determined emotionally based on their fundamental bias that the state must step in and determine custody without any regard to fundamental liberty interests. Because there is such a fundamental pervasive bias against divorcing parents, the state feels justified in violating those parents’ fundamental rights when it comes to their children and nobody will question it. And because they have that bias and they assume that everybody else has that bias as well. Remember that they treated black people differently for 100 plus years because they assumed that everybody shred the same bias and as long as everybody did they got away with it, and that’s how they are getting away with it in divorce. Even divorced parents have this bias against themselves.

We are here to help you get rid of this pervasive problem. We are backing it up with specific SCOTUS cases.

Just try not to get sick to your stomach when reading the Sidoti case when discovering how the biased and racist personal beliefs permeate the judgment of the State judges. Unbelievable how even judges at the highest level of their State can still be unaware of their own biases or prejudices or just not care still as recent as 1984! Knowing how long it has taken race discrimination to work its way out of the rulings in the highest minds of our states and country, concerns me that vetting out processes to rid our divorce system of bias and personal belief discriminatory practices too will be a very long road. That’s why we all need to get busy working on this today and use the methods most likely to not allow the introduction of the possibility of bias and personal beliefs. Hopefully, thirty years from now they’ll read divorce opinions from today with the same disgust that we read in this opinion from 1984.