How to Defeat the Argument that Parental Rights are NOT Absolute –
UPLaTM Podcast – Episode 2
Welcome to another episode of Ron’s “Unauthorized Perspectives and Legal Analysis”TM (UPLaTM). Today we are going to be talking about one of the biggest scams you’ll ever hear from family law judges and it’s one of the key ways in which they cover up the crimes that they commit in violating civil rights. When I say crimes I don’t mean crimes in the sense that the attorneys and judges have twisted them to mean today. Today they very specifically separated out criminal law and civil law and basically reduced the impact of the word “crime” and made it very narrow and specific.
When our constitution was written and when one of our most famous chief justice, chief justice John Marshall back in 1805, wrote one of the most famous cases ever to come out of the supreme court. He said it is a crime to ever put a government official in a position where they had to violate the constitution or to violate their oath to the constitution. And what he meant by that is that violating civil rights is a crime and compelling someone to violate civil rights is a crime. A crime in the sense that our constitution is the Supreme law of the land and when a government official violates those restrictions on government power that is enshrined in our constitution that government official is a criminal. It doesn’t matter if they are a judge or a police officer or an elected official. Whoever they may be, if they are a government official and they are exceeding the limits of their power under the constitution, they are criminals, they are violating the Supreme law of the land.
Now, I’m going to tell you how family law judges do this regularly and how one of the most evil little slogans they use to do this. And we see this all the time in cases, this phraseology from these judges, and we most recently saw it in a case out of Connecticut. And what these judges say is that “parental rights are not absolute.” And they are absolutely correct in this, your parental rights are not absolute. Your right to free speech are not absolute. Your right to religious freedom is not absolute. Your right to life is not absolute. The state can put you to death. This is all true.
What it does not mean is that the judges can do anything they want and put you to death at their whim or based on their viewpoint. It means they have to follow the due process of law. It means they have to afford you all of your substantive rights, all of the constitutional guarantees that apply to whatever rights are at issue in any proceeding before them. They can’t just willy nilly do whatever they want. They have to follow due process.
Now in family law they love to say when someone argues their constitutional rights, they love to say that parental rights are not absolute and then they go into wiping those rights out wholesale without any legitimate due process. What they said in Connecticut quite incorrectly and criminally is they said when parents fundamental rights conflict with the best interest of the child those fundamental rights must give way to the best interest of the child. Now that’s just absurd on its face, but we will go to the proof. The United States Supreme Court has said very clearly that children do not have a constitutional right to their best interest. The best interest of a child is not a constitutional right that any child has. They have the same right to life, liberty, property that you and I have. They have a right to pursue happiness as soon as they are able to take on the responsibility. They do not have a right to their best interest.
So when the trial court says that the fundamental rights of the parents, which are supposed to be protected at strict scrutiny, must give way to the best interest of the child. What they’re really saying is that you’re right to speech, association, and worship with your child as protected by the First Amendment must give way to the judge’s viewpoint regarding matters of conscience in child rearing, or what that judge’s viewpoint is on the best interest of your child. And quite frankly that judge has zero legitimate authority to impose their viewpoint regarding what’s best for your child on you as a fit parent. No disagreement between you and the other parent authorizes that, no marital status, no change in marital status, whether you’re married, whether you’re single, never married, whether you’re divorced . . . none of this gives any judge any right to impose their viewpoint regarding what’s best for your child as a standard for taking away your fundamental rights.
And always remember your fundamental rights, yes your rights to care, custody, control are fundamental rights but the courts have not established strict guidelines for that yet and that’s why the family law courts keep on focusing on that care, custody, and control because the Supreme Court has not set clear guidelines on that yet. But what you need to understand and what you need to know, what you need to put in front of these judges and slam these judges with consistently and repeatedly is that your rights as a parent don’t derive from the 14th amendment, they derive from the First Amendment, they come from the Association you establish with your child.
They are protected as an intimate and expressive close family Association. And there is a spectrum of Association that is protected by the constitution. And the Supreme Court and the appellate courts have said very clearly that at the top end of what is protected under the First Amendment in terms of Association is your right to intimate and expressive close family associations. Of all the associations out there, family associations are supposed to receive the highest level of protection. And yet what we see in domestic relations courts and family law courts is that they receive zero constitutional protection, none whatsoever. They cannot legitimately do that. The way they do it is smoke and mirrors.
When they tell you your rights are not absolute, most people are befuddled at that point, “What do you mean my rights are not absolute? I don’t understand. Why are you taking my rights?” What you have to hit them back with is, “Yes, your honor, I know fully well my rights are not absolute, but my rights are absolutely protected by the First Amendment at strict scrutiny in terms of speech, Association, and worship.
And close family speech, Association, and worship that is both intimate Association and expressive Association, are both two types of Association. And you need to understand both. Expressive Association is Association for instance if you are a member of the Republican Party or the Democratic Party, you are associated with all other members of that party for expressive purposes. You are expressing your common political beliefs, and that is legitimate. That is not an intimate Association because you’re not intimate with all of those people. You don’t have close, exclusive relationships with all those people. You have relationships based on a common interest and expressing that common interest. Intimate associations on the other hand are a small group, family type associations, close friends, close family; people you share an emotional connection. And all intimate associations are by nature expressive associations because you have to express that intimacy.
Third, you speak that intimacy, you express it through touch, through closeness, through emotional expression. All of these things. These are all expressive communication. So every intimate Association is an expressive Association. Every expressive Association is not necessarily an intimate Association. The reason I hammer this point is that some of these fool judges and attorneys will tell you that intimate Association is only protected by the 14th amendment not the First Amendment, and the First Amendment only protects expression. Well they are flat out wrong because the Supreme Court has said in absolute terms that family associations are protected by the First Amendment, so that is absolute rock solid Supreme Court statement that these judges and these attorneys can’t get around; and is absolutely rock solid because every intimate association is necessarily expressive.
It has to be, you can’t be intimate without expressing that intimacy to another person in some way, shape, or form. So be absolutely certain that your intimate and expressive close family Association with your child is protected by the First Amendment. You have a right to educate your child (speech). You can only educate your child by communicating to that child. Your child has a reciprocal right to receive that education from you, not from somebody else but from you, specifically from you — each of their parents. So the judges are also violating the children’s rights. So you keep that in mind, right.
Now all of these First Amendment rights have very, very strong protections and every time, every custody order, every possession order, every parenting plan, restricts the times, the places, and the manner in which you can communicate with your child. Those are free speech, First Amendment Association protected rights. They are prior restraints, prior restraints on speech, prior restraints on association, prior restraints on worship. And they are, if not presumptively unconstitutional under the federal system, they are as close to being presumptively unconstitutional as you can get. In certain states like Texas they are absolutely presumptively unconstitutional.
That means if any court writes an injunction that limits your speech, that injunction is presumptively invalid — that judge has to prove it first and has to prove it in the record. He can’t just say I’m gonna do this. And just for the record, the Texas Supreme Court has upheld this principle of prior restraint on speech in a family law child custody modification case, the exact same context that we’re all in. So, they can’t say this doesn’t apply in this context, at least not in Texas, because it absolutely does.
Best Interest of the Child falls in the face of parental rights.
So what are we gonna say when the judge tells us that your parental rights are not absolute, you’re going to say “I recognize my rights are not absolute your honor, all I’m suggesting is that my rights are intimate and expressive close family Association, speech, and worship rights that are protected by the First Amendment at strict scrutiny and that you cannot impose prior restraints on my speech Association and worship with my child unless you provide a compelling state interest and least restrictive means. Oh and by the way the United States Supreme Court has said very clearly that the best interest of a child is not a compelling state interest. It is not of the same order as parental rights. It is not on the same order as protected parent child speech, parent-child Association, parent-child worship, it is of a secondary order, and those fundamental rights, parent-child Association rights do not, absolutely do not fall in the face of best interest.
The United States Supreme Court in a child custody modification case has said very clearly that the best interest of a child is not sufficiently compelling justification to violate the equal protection clause of the 14th amendment. And, if it’s not sufficiently compelling to violate equal protection, it’s not sufficiently compelling to violate due process.
So you have rock solid ammunition to go against your court and they are going to have an incredibly difficult time overcoming these First Amendment challenges. Now don’t underestimate their ability to weasel and cheat out of things. They will twist and turn like the best politician you’ve ever seen in your life. Judges are by far better than politicians at twisting and turning wording and trying to twist out of these things when it’s in their best interest to do some, their own personal best interest, not your child’s best interest there’s.
So, don’t let them do it. When they start doing it, come back to us and tell us what they said and we will tell you how to defeat that garbage, all right. So, remember, you’re rights are First Amendment, they are not absolute, but they are protected at strict scrutiny — That is the highest level of protection any right ever receives, and it is almost impossible for any state to overcome that. Very, very rarely can they overcome it. And prior junctions on free speech are so disfavored in the federal courts that even national security interest do not justify prior restraints on free speech.
The United States Supreme Court has said that a judge cannot block a newspaper from publishing national security issues, national security information that would harm national security because it violates the First Amendment. They have a right to publish it, period, the end. That kind of strength. The best interest of the child certainly doesn’t trump national security. And the Supreme Court has said even that most highest level of importance does not justify prior restraints on speech.
So, I’m gonna leave you with that, and just remember, you’re rights are not absolute but that’s not the end of the story, that is a smoke and mirror, sham, scam that these judges use to confuse you and make you think that you don’t have any rights. You have rights, they are protected at strict scrutiny, and you need to tell that judge that and you need to insist that your attorney object and that your attorney tell your judge that. And if you need help with that certainly come to us and we help parents with that and coaching their attorneys through this all the time, all right. Thank you and I’ll see you again next time.