TOOL OF THE DAY: Top 2 Things the Court Does to Disadvantage You…

CATEGORY: Family Law

It’s unnerving walking into a courtroom and having no clue what they think.

What are the presumptions that the Court has that is driving some of their behaviors? Find out what you are dealing with before you step into the Court. And I don’t mean finding out what the judge’s favorite ice cream is or whether the judge likes mom’s or dad’s more. There are some other basic presumptions that the Court and the attorneys make before you step into the court.

To find these out doesn’t even require you poll every lawmaker, judge and attorney.

Sometimes all it takes is looking through a couple of opinions from your Court and Attorney General. What do they say is their assumption when parents are in dispute? The two top prevailing ones that we have heard attorneys in many states repeat and have read in opinions are:

  1. The Court serves as a tie breaker between two parents disagreeing.
  2. The parents have invited the State into their family relationships.

Remember when I mentioned in an earlier blog to bring out the elephant in the room. These are two big ones that if left unaddressed you could find that you never get the judge’s attention. No wonder so many feel like they lost before they even begun.

In order to address number 1, you will need a basic understanding of when you ask the Court to break a tie and when you re-state what the Court is being asked to do. Here is an example. If the two parents are fighting over what school the child goes to, then the Court can break the tie and decide on the school. When the Court is faced with breaking a tie, they want the information on both schools. And if you want the Court to pick the one you like, you of course will use everything you can to make your school look better than the other. This is what so many parents do to each other, thinking that they are asking the judge to choose between one of the parents.

So you might have guessed that my next example of what is not a tie breaker would be when both of the parents are fighting over time with the child. You are not asking the Court to break a tie here. Instead you are asking the judge to apply equal protection and protect each parent’s and child’s rights to be together as equally as possible. Be aware that they see this as the parent’s rights are in conflict and therefore they have to pick between each one. And most of the time you are both asking for the same thing, you want the primary. So from that respect it would look like a tie breaker. But only if you both positioned it that way.

So if you want the possibility of the judge looking at it from the perspective of not being a tie breaker but instead one of fundamental rights, you will have to explain that you understand that there is a conflict, and that is that each parent cannot exercise 100% time with the child because of a natural division created by the divorce or separation of the parents. It is physically impossible for both parents to exercise the time with the child at the same time if they are no longer together. Therefore the tie has already been broken by the separation itself.

Okay but you have both parents wanting primary. This is not a tie breaker either because of the nature of the rights being disputed. Time with your child is a fundamental right necessary to be able to directly influence and convey your beliefs, values, and morals. Therefore fundamental rights already have a process that is used when determining how to handle those conflicts. That is strict scrutiny and least restrictive, compelling, and narrowly tailored.

You can suggest that the judge use the Eldridge test in order to determine the proper level of due process to use in the Court. This way you are not the one dictating to the judge, but merely suggesting to the Court a way to settle the matter without disadvantaging the children or either parent.

This way both parents have less to fight over, the Court has a straightforward and simple solution that doesn’t require the parents to bash each other and sling dirt, and the children get to keep their college funds.

Now to address number 2, which you have pretty much already laid the foundation for in number 1.

Your pleadings should reflect that you are not inviting the Court into your family relationship to start with. Next your oral argument should also reflect this by stating to the Court that you are simply asking the Court to memorialize your equal rights and time on paper since the two of you are no longer formally exercising the rights together and are no longer in agreement. And you are asking this of the Court because without it the law sees the two parents as being equally entitled to 100% of the rights to the child. There is no division whatsoever in the eyes of the law.

So really you are asking the Court for protection of your rights. You must list what you believe your rights are so that you don’t leave the Court to guess. Use the U.S. Supreme Court opinions for this. They’ve laid that out for you in the cases like Troxel and Stanley. And make sure that you are not ever asking the Court to choose between the two of you. Make it clear that you understand your rights to be separate, equal, and individual.

And if there is a statute that says that a Court can look at this differently. Then you might want to argue that the statute at the least is unconstitutional as applied in your case. It might unconstitutional on its face as well, but you would have to research that more specifically. But being prepared with both is very worth your time. When you understand these two things and you have that ready and put it on the record you have preserved your ability to raise this on appeal if you feel the Court does not apply these properly. Our book listed below covers some of these concepts. Chapter 18 in the book talks about how it would look if the courts were to act constitutionally. This chapter should help you understand these arguments a lot more.

I hope that this tool will help you resolve your issues more quickly so that you can spend your valuable resource, your time, with your child.

When you address their assumptions from the beginning, it’s like you changed up the expectations that they had that you would walk right into their traps. Leave them wondering what you will do next for once.

See you back here tomorrow for another tool!


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.

[CLICK HERE to get the Parental Rights book “NOT in The Child’s Best Interest.]

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: (@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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