Emery makes many good suggestions in his article called, “How Divorced Parents Lost Their Rights” and has a good grasp on the process from a psychology perspective. We are, of course constitutional scholars and would like to offer a perspective that hopefully integrates and supports most but not all of what Emery says.

For instance Emery suggests that courts do not involve themselves with parenting disagreements between married parents because judges would make things a mess. They would of course but that is NOT the legal reason that they stay out of it. The legal reason is that people have the right to make decisions free from government interference. These rights are called privacy rights. Parents have privacy rights to make decisions for their children and the State may not interfere unless the state can show a clear and present danger to the child from these decisions.

Why do family law courts treat married and divorced parents differently? Many people do not realize that parental rights do not depend on marriage and in fact cannot depend on marital status in any way. A hundred years ago this wasn’t so and our family law codes have not caught up with this concept. Up until the early 1970s some states still had bastardy laws on their books that tied the rights of parents and children to the marital status of the child’s parents. In a series of landmark decisions, the US Supreme Court stated very clearly that states may not create second-class parents or second-class children based on nothing more than the marital status of the child’s parents.

Family law has not caught up to this idea because of religious and cultural preconditioning. In other words our society builds into us a series of biases and prejudices against single and divorced parents that is so deep most people don’t even realize it is driving their behavior. Most people believe that it is completely legitimate to invade the privacy of single/divorced parents even where they believe that the privacy of married parents must be preserved. Constitutionally, this is a completely bankrupt idea. Unfortunately, judges, attorneys, and mental health professionals are almost universally so caught up in these biases they refuse to acknowledge their professional training and simply default to bigoted behaviors without even realizing that is what they are doing. (It’s easy to fall into following statistics to guide decisions. Individuals can choose to follow these as their guide. It is not how the law should be deciding individual rights.)

Source: Laumann-Billings, L. &. Emery, R.E. (2000). Distress among young adults from divorced families. Journal of Family Psychology, 14, 671-687.
Source: Laumann-Billings, L. &. Emery, R.E. (2000). Distress among young adults from divorced families. Journal of Family Psychology, 14, 671-687.

The US Supreme Court has said clearly that parental rights are individual, that parental rights cannot depend on marital status, and that “the rights must be the same for the unmarried and married alike.” Nothing other than deep seated bias and prejudice can explain why these constitutional concepts are not applied in divorce.

Many courts believe that because divorcing parents disagree that the courts must take over all decision making. As Emery rightly points out this is flawed logic in general. It is also flawed logic legally. When dealing with fundamental liberties, which parental rights are, the courts must implement solutions that have the least impact on the liberties. This means that they are wrong when they move immediately to take over all decision making. They are in fact violating the constitution when they do.

Attorney Jason McLean, on the Jay Thomas radio show on September 17, 2014 airing information about Measure 6 in North Dakota for equal parental rights told listeners that the mediation process in the North Dakota courts already does what Measure 6 is trying to accomplish. Other listeners called in and disagreed. Personally, I haven’t been to or heard of a single court-ordered mediation where the mediation starts off with “you both have equal rights” and “if you cannot agree then the judge is going to make a parenting plan dividing these rights and time and responsibilities up equally.” That would be the day, right! (Set all the other excuses and smokescreens aside that you hear from attorneys and judges, when you start with equal rights the parents will have to work together in order to make things work for their family structures. And if one parent doesn’t want to play nice or work together it won’t cost the other parent and the child their life savings, they won’t need expensive lawyers to come in and create a court battle, each parent just simply won’t give that other parent the extra time with the child that perhaps one parent might have been willing to give up to them otherwise. Each parent will be free to appoint someone that isn’t vindictive or hateful towards them to care for their child during their parenting time.)

For the judges and attorneys however, the proper legal analysis is to ensure that each parent has an equal opportunity to exercise their full parental rights. In other words equal possession time. The Court’s must then presume that any decisions that parent makes during their time is in the best interest of the child unless the court can show otherwise. The burden of showing this is on the State not the parent whose rights the State is trying to take. This resolves almost all of the dispute without the State taking any rights from either parent, leaving only a few very specific issues to resolve.

Some issues like which school the child will attend cannot be divided in this way. Someone must choose a singular school. Where the parents cannot decide, the constitution permits the judge to make a decision on this narrowly focused issue. At any time the parents do agree, they have full constitutional rights to override that judges decision as NO judge can constitutionally override two fit parents without a showing of harm to the child. This means even when the parents do not agree with each other. Each parent still gets to decide during their time with the child. (Most divorce decrees and SAPCR’s have this wording in there, but because they limit the time of one of the parent’s, that parent’s decision making is severely impaired and reduced to basically being moot and having nil effect on the child’s life. Which, by the way, is the State’s intent. The orders are designed that way since those that have designed the codes have been under the belief that a child should have one primary. This is reflected in these unequal orders.)

There are additional issues where if one parent exercises a right, they risk taking away the rights of the other parent. One example is authorizing elective invasive surgery, such as allowing a teenager to get plastic surgery. Judges can constitutionally implement orders prohibiting unilateral decision making in these few narrowly defined instances.

With these measures in place, it really doesn’t matter much at all if the parents disagree or even hate each other with a passion. So long as the judge enforces the orders, the parents and the child can operate just fine and the child will grow up with no more dysfunction than they might growing up in an intact nuclear family where the parents despise each other. Even if a Psychologist considers this harm to the child, it is NOT the kind of harm for which the state is authorized to protect a child.

Keep in mind the simple mantra, if the judge can’t do it to a married parent, he probably can’t do it to single/divorced parent without violating the equal protection clause of the Fourteenth Amendment to our Constitution.

Where Emery suggests letting a parenting coordinator decide when the parents cannot agree, the recommendation can work if properly set up but if not properly set up and left to the inherent biases and prejudices that every parenting coordinator will have, it can become a nightmare that robs parents of their rights and that destroys parent-child bonds. No parenting coordinator should ever be allowed to deprive either fit parent of any of their constitutional rights nor should they ever be allowed to overrule two fit parents who agree. On the narrow issues identified above, resolution does not have to come from a judge. Many types of dispute resolution can work. Just don’t ever allow dispute resolution to infringe upon your constitutional rights and never ever, under any condition, should you give up any of your rights.

Always, remember that you can retain your equal rights and still allow the other parent to have the child more than their 50% so long as you choose. The Supreme Court has been clear that it is your right to determine who your child associates with. If you and your ex agree, then it is perfectly acceptable for you to leave your child with them when you are away. If you do not agree, it is perfectly acceptable for you to leave your child with someone who will respect your wishes during your parenting time. (The problem has been that a parent assigning someone else to care for their child when they are no longer in agreement with the other parent has been used to the other parent’s advantage. When statutes stop providing advantages like this, parents will be forced to get along or live parallel but have nothing to fuel a court battle and children will not lose being with their other parent equally.)

You do NOT have to be present for every minute of your parenting time any more than a married couple has to spend every minute of their time with their child.

Where parents can fight over little more than on which days they will get their equal time then these horrendous child custody battles will become a thing of the past and life will become much better for parent and child alike.

Remember, when your busy body side comes out and you want to say that splitting a child’s time equally is bad for that child, you do NOT have a legal right to force that opinion on any parents, married or divorced. That is a decision that only the parents are allowed to make and the State is prohibited by our constitution from getting involved beyond what was explained above.

If you don’t want the State telling you how to raise your children, please stop insisting that the State tell divorced parents how to raise their children.







  1. Rally on reforming family laws, join here: https://www.facebook.com/events/758049144260623/


  1. “How Divorced Parents Lost Their Rights.” By Robert E. Emery. Published September 6, 2014. http://www.nytimes.com/2014/09/07/opinion/sunday/how-divorced-parents-lost-their-rights.html?module=Search&mabReward=relbias%3As%2C%7B%221%22%3A%22RI%3A6%22%7D&_r=0


  1. Divorce Corp at https://www.facebook.com/divorce.corp


  1. Reform Conference register here: http://www.divorcecorp.com/reform-2/


  1. North Dakota equal parental rights measure 6 information here: http://ballotpedia.org/North_Dakota_Parental_Rights_Initiative,_Measure_6_(2014)


  1. Jay Thomas radio show Measure 6 opposition here: http://www.wday.com/content/970-wday-jay-thomas-show-jason-mclean-paul-schauer with Attorney Jason McLean and Paul Schauer posted by Kyle Iverson at WDAY 970 on September 17, 2014


  1. Jay Thomas radio show Measure 6 supportive here: http://www.wday.com/content/970-wday-jay-thomas-show-jill-bjerke-mitch-sanderson with Jill Bjerke and Mitch Sanderson posted by Kyle Iverson at WDAY 970 on September 16, 2014
  2. Statistics on How Divorce Affects Children from http://emeryondivorce.com/how_divorce_affects_children.php