TOOL OF THE DAY: Arguing a Family Law Statute in court
CATEGORY: Family Law Legislation

Most of us have an idea about what guiding principles or values that we follow in our life. Some follow the bible, some just have a general sense of what is right and wrong for their life.

The courts have guiding principles as well. It’s called the family code or statutes (The word codes and statutes are used interchangeably in family law). They use the family law code like it is their bible. Well at least many of them will claim they do. The effect though because the proper protections are not built into many of the statutes is that you’ll find judges playing willie nillie with your rights and your duties to your child. We’re going to show you how to put a stop to this.

You will find codes in every State related to divorce (also can be called dissolution of marriage), child custody, child support and alimony. But each State has their own version.

These codes come from the legislature. Many of the codes that the legislators create come from case law. All are supposed to take the constitutional protections into consideration and are not supposed to violate the basic constitutional principles required to protect every individual’s ability to exercise their rights. The question in family law has been, “What are your rights?” There are many cases from the U.S. Supreme Court that have outlined your rights and the basic most fundamental of these are the right to the care, custody, control, and association with your child. You have the right to determine the best interest of your child unless you are proven to be unfit or a clear and present danger directly to your child. (We cite these in our book: “NOT in The Best Interest of The Child.” So if you want to learn more about your rights so you can argue them more effectively, you can get the book here.)

Unfortunately, we and many other have found that this is not what is happening in most cases. The courts and attorneys are treating parents going through divorce, paternity cases, or any kind of child custody battle as if they only have rights if the court says they do.

Why is this happening? We are finding that most State codes have not mandated proper due process in order to protect and preserve the constitutional protections required to protect these fundamental rights from the use of lowered standards and infringement. Compounding the problem is most of the courts and attorneys place an inordinate amount of reliance on the codes and not so much on the importance of persuasive arguments that balance the codes with the constitutional fundamental family rights. Making these arguments however does protect your right and ability to re-argue them at the appellate level. A judge not siding with you does not mean that your argument does not have merit. Many parents mistake this and give up thinking, “oh well, I lost and the judge said I was wrong. There is nothing I can do.” This is not correct.

Your arguments are opportunity to propose the proper reasoning that would apply to the statutes and balance them with the protections required for your individual parental rights, therefore reducing the risk of the judge applying the statute improperly and invading your family privacy with family studies or depriving you of your financial resources. (You would be arguing in essence what we refer to as the argument for what would make a statute constitutionally compliant.) These protections are necessary for exercising your authority and duties as a parent. (Parental rights include the protection of children’s rights as well by the way. The only rights that the children get to exercise independent of their parents are those that have been made exceptions by the U.S. Supreme Court. The children’s wishes for which parent they want to live with primarily therefore is not necessary when the constitutional equal protection is applied. Want a paper on the equal protection and how we argue 1st amendment protections, get them both here. Equal Protection white paper and 1st amendment white paper that can be attached to your pleadings.)

The response that you might get from a court when you challenge the authority of a statute is the that you are trying to legislate in the court room, or that the legislators speak for the people not you, or that the judge must follow the statute exclusively, or that only the appellate court can decide if the statute is unconstitutional. And many times a judge will even proclaim that the statute is indeed constitutionally compliant. The judge might even refer you to your legislator if you are unhappy with the codes.

Mostly this is where some of a judges training (or lack of training in this area) might be getting in the way of the actual duties that a judge is to perform. Sure there are judges that may be accused of being activist judges, like Justice Marshall was accused of many times in the U.S. Supreme Court. However, have a sworn duty to support the law of the land that begins with the supreme law of the land. They further have a duty clearly established in Marbury v. Madison to start with the supreme law of our land, the constitution, and uphold it before any other laws. Therefore, when a statute violates the constitution the judge has a sworn duty to declare the law unconstitutional.

The judiciary is a separate arm of the government with equal power. They serve to balance rights of the State and of the people. And if it is proven that something needs to be done in the courtroom in order that justice may be done then it is a judge’s duty to do so. What a judge is not supposed to do is step outside their authority. Their authority includes hearing novel, cogent argument and rendering a judgment on that information.

So with that in mind, what do you do when you are up against a statute that authorizes a court to interfere with your rights and time to your child, your finances related to the support of your child (most commonly referred to as child support) or your finances related to your soon to be former spouse (most commonly referred to as alimony)? You present these arguments with confidence. You don’t get discouraged if the trial court doesn’t side with you. And if the appellate court or even your State supreme court doesn’t agree with your argument, you can take it to the legislators. We’ll address that towards the end. (Remember that women and slaves and even migrant workers didn’t win in the courts at first. They had to keep arguing until they prevailed. The biggest problem that family law has had is that not enough parents have known their rights or how to argue them. If more parents argue from the beginning then it will become harder and harder for the courts and attorneys from the beginning to continue to deprive the parents. Most parents that I hear about going through this got bullied or talked out of their rights. The judge knew that getting their consent was going to crucial to not being overturned. They took the wind out of their complaints and arguments by getting them to give in unknowingly.)

If you are facing judicial action, then your first priority will be putting as much protection in place for you regarding the application of the unconstitutional statutes. You can argue that the statutes are unconstitutional as being applied. That you have fundamental individual parental rights as stated in cases from the U.S. Supreme Court; that these apply to everyone including those in child custody battles with the other biological parent; that the statutes have not incorporated the 14th amendment and constitutional protections; and that these apply for any hearing, not just termination hearings.

There are two ways a statute can be determined to be unconstitutional. It can be said to be unconstitutional on its face, as was determined to be the case in the In Re Sanders, Michigan case where the “one-parent doctrine” was found to be unconstitutional no matter how you looked at it and it was completely thrown out.

Or a statute can be unconstitutional as applied. This is where a statute if applied in the proper context might be perfectly allowed. Let’s say that both parents were found to be unfit and the State becomes the person to determine what is best for the child. Then it is constitutional for the State to determine the best interest of the child in that context. It is not constitutional for the State to determine a child’s best interest prior to proving it has the authority to do so, not even when one parent asks the State to do so when there is another fit parent. Unless of course you also consent or forfeit your right to the court.

So in addition to arguing the application and the constitutionality of your State statute to the judge, you can also suggest to your legislator that every family law code should begin at the start of the chapter by saying the following:

“Parents have fundamental liberty interests in the care custody control and companionship of their children that are privacy rights. These rights belong to each parent individually, fully, and equally. These rights are independent of marital status or changes in marital status and may not be deprived based on marital status or changes to marital status. These fundamental privacy rights are to be protected at strict scrutiny standards of due process as well as clear and convincing evidentiary standards.”

So regardless of what the rest of the convoluted and sometimes extremely confusing family code might say or look like in your State, you can simplify and resolve it by applying the simple statement above. You could add that any statute that is in conflict with this one that this one takes precedence.

We have seen a lot of confusing Bills come across our desk in an attempt to correct the family codes in many States. It is important that you simplify your code and not make it more confusing or inviting for special interest groups or legislators to pick away at it or muddy it with complications. The more complicated you make it, the more likely judges are going to have different interpretations of the statute and it might not have the effect that you intended.

By using this simplified and universal language you not only cut out the necessity to create large boards of people and garner consensus on a multitude of issues (which takes time and a lot of energy). Spend your energy wisely. When every parent everywhere repeats that “Parents have fundamental liberty interests…and may not be deprived based on marital status…and are to be protected at strict scrutiny.” You cut out the wiggle room for the lawmakers, the judges, and the attorneys. There is no more need to empower parental alienation to try and determine which parent is more favored, or to employ expensive experts. Abuse claims can be taken more seriously with the proper due process, children run less risk of ending up in the hands of  an abuser since the risk of error is lowered, and innocent people have greater protection from false claims of abuse and from narcissistic or controlling behaviors. It becomes clear that these are your inalienable rights and that it will take much more than inflaming a judge or gaming the system to deprive you and your child of them.

Once you understand your rights it becomes part of your blood and your beliefs. You cannot be shaken from these. It becomes part of who you are, just like the declaration of independence became who we are as Americans. This gave every American the belief that they deserved a better way of life, not the life of tyranny and dictatorship they had under the King.

Once every parent understands that they do not have to be subject to a court or attorney’s determination of what is best for your child, you are on your way to protect not just yourself but the generations to come from abuse of powers.

Remember, as mentioned earlier, just as in any protest to abuse of power, you might not get the same results as someone else. Knowing these things and making the most cogent and persuasive argument does not guarantee that you will convince the judge to side with you.


[You can learn more about this and how to reason through your rights and protect them from our books and courses. Click at the top on Store and you will find the books and training tabs.]

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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: (@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.


The information provided above is not a substitute for the advice of an attorney. You should consult an attorney regarding your rights under the law.