TOOL OF THE DAY: Is Time with Your Child an Entitlement or a Right?
CATEGORY: Family Law Procedure
Didn’t the father have several hearings already? Didn’t he already receive due process?
This is what the Michigan Supreme Court justices asked the defense attorney when he was arguing that the father in “In Re Sanders” did not receive due process. And this is what the trial courts and probably even your attorney would argue with you if you just went in and said that you didn’t receive due process.
Just having hearings does not mean that you have received Due Process.
This is why you need to know that there are different types of due process. We have found that when you start to understand how someone looks at something, you can identify the problem and apply the proper solution. This is the same when you are dealing with the Court and others involved in the process.
First let’s look at some rudimentary basics to help you get to the point of where due process might be at in the trial Court’s mind right now.
The States look at your rights to your child as divided between, rights, duties, and privileges. (We are not saying that this should be how they look at it, but this is reality right now.) Your time with your child gets put into the privilege category. We disagree with it being put in this category and here is why.
Privileges get more latitude from the State for using looser standards. This means that you will receive a lowered form of due process. You want the kind that protects a fundamental right not the kind that protects a privilege. 1st amendment is a fundamental right protected at one of the highest levels. Not all of your parental rights are protected at this high level even at the U.S. Supreme Court level. Let’s not get sidetracked here though.
Back to the privilege category. States can decide how they want to handle privileges. In other words, they can act however they wish to act.
There is another part to this. You probably knew there was going to be another layer didn’t you? The Court should also be asking then whether or not the State has created a dependency of you on relations with the Court. And if they have then have they created an “entitlement?”
You will see many cases that claim they have an entitlement, some of these are with welfare recipients and other cases with disability applicants, etc.
We are not saying that fit parents fall into this same category of entitlement. Which is why the Court has to apply their rules of Due Process according to a set of rules created in a case called Matthews v. Eldridge. The three things that they look at to determine what kind of due process is due. This is called the Eldridge Test: 1. What is the private interest that will be affected; 2. What is the risk of erroneous deprivation; and 3. What is the Government’s interest?
So if the State has created statutes that claim that your “time” with your child is a privilege, they have essentially created an “entitlement” regarding time with your child. Then they determine how much time based on this theory.
Okay, Whoa! Hang on a second. This is where the Court and the legislators have taken the wrong track. This kind of thinking has created what I call family court tunnel vision where “time” with your child is considered a privilege that has been turned into a supposed entitlement that can be treated any way the Court deems proper. And then wallah, you now have the justification for continuing to apply whatever doctrine the Court and legislators decide is right. And in most States you have the Best Interest of the Child Doctrine as discussed in the post before this one called: “How to Argue to the Court to Abolish the Best Interest of the Child Doctrine.”
Time with your child is not a privilege but a right “indispensable to the dignity and happiness of a free man.” It is a right necessary for you to develop your child and convey your beliefs, values, and morals. It is a fundamental right of such great importance that you need to demand that it receive the highest level of Due Process.
Hold the Courts to the Eldridge test above and keep “time” with your child positioned with the Court as an inalienable fundamental right that can only be interfered with using the least restrictive means and minimum equally applicable with the other parent.
Then you can move onto the next prong the Court will throw at you.
We will get into the difference between a deprivation and a termination next
Check back here tomorrow for some more tools!
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.
You can learn more about this and how to reason through your rights and protect your rights in our books and courses. Click at the top on Store and you will find the books and training tabs. The book teaches you your rights and the training courses teach you how to argue them like I demonstrated above.]
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This post is for thinking purposes and is not portraying how your Court might or might not actually be handling child custody cases.
Go to the Family Rights wiki if you would like to suggest more topics to discuss or read more free information on these topics.
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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Beginner's Guide to Family Law
A Simplified Path to Parental Rights
For a loving parent, a child custody suit can be a time of terror. The most important thing in your life is at stake and it doesn't take long to figure out that the system is rigged against you. This book provides simple straight forward and easy to understand ways to help ensure that your rights get protected. This is the starter guide for you to protect your rights.