If A Fit Parent’s Decision is the Best Interest of the Child, What Happens in Divorce When You Have Two Fit Parents in Disagreement? (Are you Unfit because You are Getting Divorced?

You are not unfit until the court proves you are unfit. It is the State that must prove you unfit. You do not have to prove that you are fit. The other parent disagreeing with you or not liking you does not make you unfit. While you may be tempted to respond with proving your fitness in the face of power, you change the entire power dynamics in a hearing when you force the court into their duty and role of protecting you and your rights until you are proven to not be worthy of this protection. By following the framework outlined below you set the court up properly for reviewing and dismissing what is usually nothing more than inflammatory and petty disagreements from the other parent that do not have the validity or power or meet with the requirements under the law to interfere with your equal rights and time with your child.  “Troxel makes it clear, that there is a presumption that a fit parent’s decision is in the best interest of the child. Troxel v. Granville, supra, 530 U.S. 69.” (Roth v. Weston, 259 Conn. 202 – Conn: Supreme Court 2002) And Stanley makes it clear that parents are to be presumed fit and cannot be presumed to be unfit until they are proven by the state to be so. The court does not get to let your ex beat on you until they convince the court to not like you and side with them. This is an improper use of their power and authority. It is the state’s job to prove you are unfit not the other parent.

Connecticut’s and Nebraska’s Supreme Courts get it Right in 2002 and 2008 respectively! 

Parents and attorneys in Connecticut, use Roth v. Weston when faced with a divorce with child custody. And this case outlines a framework that should be used as a template to help you outline what you expect from your court judge. Even though this case is about a widowed father being sued by a maternal grandparent and aunt, the same legal reasoning should apply. Don’t let a court tell you otherwise. Fundamental rights are fundamental rights. Regardless of the state that you are in, I would apply the following, as we have found the reasoning in SCOTUS cases and appellate cases from many different states. Our belief is that a court’s understanding of how custody works in divorce hasn’t changed to reflect the application of the constitution since the passage of the fourteenth amendment, and that they are going to need some help getting there.

If the other parent has filed a petition to sue you for custody of your children, articulate the triggers that you believe are necessary before the court has jurisdiction to override your fundamental rights to make that decision without court intrusion:

1.       The court must prove you unfit in a proper hearing for fitness.

2.       The court must prove there is harm at a very high level, to the level that there is clear and convincing danger.

1.      It is clear that a requirement of an allegation such as abuse, neglect or abandonment would provide proper safeguards to prevent families from defending against unwarranted intrusions and would be tailored narrowly to protect the interest at stake. Cf. J.S. & E.S. v. D.W. & J.W., supra, 835 So. 2d 184 (visitation statute unconstitutional as applied because not narrowly tailored without requiring showing of harm where parent is fit); Kyle O. v. Donald R., 85 Cal. App. 4th 848, 864, 102 Cal. Rptr. 2d 476 (2000) (visitation statute flawed because absent allegation of unfitness of parent, statute not narrowly tailored); Santi v. Santi, supra, 633 N. W.2d 320 (same).

3.       The court must prove that there is a compelling state interest that complies with the standards of the interpretation of SCOTUS cases. See cases like Prince v. Massachusetts, supra, 321 U.S. 170 (upholding conviction under child labor law of parent who allowed minor child to sell religious magazines because of legitimate state interest in laws designed to prevent “psychological or physical injury” to child).

The court cannot make the defendant prove that they are fit or that there is no harm. It is the duty of the plaintiff to prove that there is unfitness or harm in the other parent continuing their equal exercise of their fundamental rights of parenting. Therefore, if the plaintiff has not provided the proper pleadings to prove these two elements and the above triggers are not there, the court does not have jurisdiction. Ask for the court to dismiss the other party’s pleadings. You should consult your attorney about your pleadings containing the proper language for protecting your rights from these attacks, and for requesting that the court approve your submission of the equal split of time that you and the other parent will exercise. This will protect your time with the child and the child being with you. And any time the other parent or their attorney tries to bring up anything personal about you or mudsling, ask your attorney to object on the grounds of your constitutional right to privacy and that the complaint does not rise to that invokes the court’s jurisdiction or warrant the court’s authority to interfere with your decisions regarding your child.

4.       Best Interest of the Child cannot be used as a trigger by the court. This is for the court only after they have determined that either you pose a clear and convincing danger to the child or that you are unfit. The court has to prove that they have jurisdiction to override your best interest and your parental preferences for the child. And in the case of divorce they would have to treat each parent individually. Just because they override one after proving that parent unfit, does not give them carte blanche to override the other before proving them unfit.

Make sure that the court proves jurisdiction using the following administrative procedures:

1.      “expressly impose the limitations necessary for the statute to comport with constitutional doctrine”

2.      reflect the rebuttable presumption of parental fitness

3.      contemplate any actual or imminent harm to the child that must be prevented

4.      presents compelling interests of the state or a compelling interest of the child that is allowed to be superior to the parent

5.      indicate the allegations and provide proof required to override the parent’s fundamental and superior right to make decisions regarding the care, custody, or control of his or her child

6.      describe the heightened burden of proof that they have used to justify infringement on your rights 

Check with your legal counsel but we found that is was safer to make sure that you put in your pleadings your understanding of the burden of proof that the court is required to use before infringing or depriving you of your fundamental liberties to your child. This level of due process is strict scrutiny and clear and convincing before overcoming such rights as have been established in numerous SCOTUS cases for parents or third parties seeking to deprive the other parent.

If the court does establish jurisdiction, remember to request again in the court even if you have it in your pleadings that the standard of evidence to be used is clear and convincing with the due process level of strict scrutiny, not preponderance. And ask that you get a fitness hearing before the court deprive you of any of your rights beyond the inherent 50/50 split that naturally must take place in a divorce. You can argue that this is required because there are “constitutional issues at stake,” those are your fundamental parental rights. And remind the court that they can deprive each of you equally of 50% of your fundamental rights because that has to be done in a divorce, but anything more than an equal deprivation requires these levels of proof and due process.

The following comes directly out of the Connecticut case: 

The last factor to be considered is what standard of proof must be required in order for the intrusion of this nature to be justified. When constitutional issues are at stake, a heightened evidentiary standard is warranted. See Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 282-83 and 283 n.10, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990); Santosky v. Kramer, supra, 455 U.S. 756-57; see also Miller v. Commissioner of Correction, 242 Conn. 745, 796, 700 A.2d 1108 (1997) (noting that “[c]onsistent with the heavy burden that [the clear and convincing] standard of proof imposes, courts and legislatures have employed it in constitutional, legislative and common-law contexts involving extremely significant questions of fact”). Accordingly, several states apply a clear and convincing standard of review in visitation proceedings. See Mont. Code Ann. § 40-4-228 (2001) (clear and convincing evidence required to show natural parent has engaged in conduct contrary to parent-child relationship and that nonparent has established child-parent relationship, continuation of which is in child’s best interests); Neb. Rev. Stat. § 43-1802 (2) (1998) (clear and convincing evidence that visitation will not “adversely interfere with parent-child relationship”); Nev. Rev. Stat. § 125C.050 (Sup. 1999), as amended by 2001 Nev. Stat. c. 547 (clear and convincing evidence required to rebut presumption that visitation is not in best interests of child); R.I. Gen. Laws § 15-5-24.3 (a) (2) (v) (2000) (clear and convincing evidence required to rebut presumption that parent’s decision was reasonable); Va. Code Ann. § 20-124.2 (Michie 1998) (court may award visitation to any person with legitimate interest upon showing by clear and convincing evidence that child’s best interest served thereby); Wash. Rev. Code § 26.09.240 (3) (2000) (requiring clear and convincing evidence that petitioner has significant relationship with child); Hunter v. Carter, 226 Ga. App. 231*231 251, 253-54, 485 S.E.2d 827 (1997) (adding standard of proof of clear and convincing evidence as judicial gloss to visitation statute).

We recognize that due process requires the clear and convincing test be applied to the termination of parental rights because it is the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent; Santosky v. Kramer, supra, 455 U.S. 747-48; while abuse and neglect petitions require proof only by a preponderance of the evidence because “any deprivation of rights [at that stage] is reviewable and nonpermanent and, thus, warrants a slightly less exacting standard of proof.” (Internal quotation marks omitted.) In re Shamika, 256 Conn. 383, 401 n.22, 773 A.2d 347 (2001). It is evident, however, that in the visitation context, the heightened standard of clear and convincing evidence is not constitutionally mandated. Nevertheless, “[a]ppellate courts possess an inherent supervisory authority over the administration of justice. Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 232, 578 A.2d 1075 (1990); State v. Holloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Ross, 208 Conn. 156, 158-59, 543 A.2d 284 (1988); State v. Madera, 198 Conn. 92, 99, 503 A.2d 136 (1985)….” (Citation omitted; internal quotation marks omitted.) State v. Pouncey, 241 Conn. 802, 812, 699 A.2d 901 (1997). This court has relied upon these supervisory powers to delineate judicial rules in order to safeguard important rights. See, e.g., State v. Santiago, 245 Conn. 301, 333, 715 A.2d 1 (1998) (“[u]nder our supervisory powers, we have adopted rules intended to guide the lower courts 232*232 in the administration of justice in all aspects of the criminal process”).

We believe the stricter standard of proof is sounder because of the ease with which a petitioning party could otherwise intrude upon parental prerogative. Unlike with a petition by the department of children and families alleging abuse or neglect; General Statutes § 46b-129; “there is no real barrier to prevent a [party], who has more time and money than the child’s parents, from petitioning the court for visitation rights. A parent who does not have the up-front out-of-pocket expense to defend against the … petition may have to bow under the pressure even if the parent honestly believes it is not in the best interest of the child.” (Internal quotation marks omitted.) Rideout v. Riendeau, supra, 761 A.2d 310 (Alexander, J., dissenting). The prospect of competent parents potentially getting caught up in the crossfire of lawsuits by relatives and other interested parties demanding visitation is too real a threat to be tolerated in the absence of protection afforded through a stricter burden of proof. Therefore, pursuant to this court’s inherent supervisory powers; see State v. Santiago, supra, 245 Conn. 333-34; State v. Coleman, 242 Conn. 523, 540-42, 700 A.2d 14 (1997); State v. Pouncey, supra, 241 Conn. 812-13; we determine that a nonparent petitioning for visitation pursuant to § 46b-59 must prove the requisite relationship and harm, as we have previously articulated, by clear and convincing evidence.

If the court does establish jurisdiction, their involvement must be the least intrusive to carry out their intended interest.

If the court argues that their statutes allow them to do what they are doing without following the above standards and administrative procedures. Then argue that the statutes literal construction do not comport with these requirements, and that you are requesting that they use their judicial authority to search for and use a construction that not only accomplishes the legislature’s purpose but also complies with the constitution. You can request to be able to give examples from other states if you cannot find any in your own state, like using some of the practices from Nebraska’s current Farnsworth v. Farnsworth, 756 NW 2d 522 – Neb: Supreme Court 2008 ruling and the following from the Connecticut case: “”[i]f literal construction of a statute raises serious constitutional questions, we are obligated to search for a construction that will accomplish the legislature’s purpose without risking the statute’s invalidity.” Sassone v. Lepore, 226 Conn. 773, 785, 629 A.2d 357 (1993).” (Roth v. Weston, 259 Conn. 202 – Conn: Supreme Court 2002)

The above cases are not the only ones that you can reference. We write this to give you an idea of a framework to use to protect your rights. You can go from there. We wish you all the strength and resolve to see your case through and hope that you are able to reduce your loss and cost by limiting the intrusion of the legal system with your family.