The Lies They Tell about Equal Parenting
You may have had an attorney or a judge tell you that the constitution does not require equal parenting, and see parental rights activists relying upon the recent research stating that the best interest of the child is as close to equal parenting as they can get. There are gray areas in this research though and judges or opposing counsel who really want to push the issue can easily overcome these studies by making claims like “it doesn’t apply in your case,” or that “the other side overcame the presumption,” or they might just flat out not believe in equal parenting and know that they can use the venerable phrase “best interest of the child” is to be mainly with the other parent. No amount of additional research or anything else that you dig up at that point will change that judge’s mind, nor will you overcome the judge’s preference on appeal like that.
So you need more, you need something that cannot be overcome with bias, prejudice, and personal beliefs. The only thing we know is the solid foundation that our forefathers left us, the United States Constitution.
The mere mention of using this or suggesting that it protect you and your child to equal parenting will surely be met with, by a judge or attorney as described above, eye rolling, and impatience. This is why we suggest that you present them with the Equal Rights of Parents Treatise and follow that with a trial brief (get permission to submit a trial brief and follow the rules in your state on this) on how the constitution applies to fundamental rights.
Equal Parenting Through Balancing
While they are technically correct, the constitution never address parenting time specifically. The best lies always have a kernel of truth in them. Your parental rights are protected through multiple means as fundamental rights. The supreme Court of the United States has held that it is now beyond doubt that parental rights are fundamental. Fundamental rights are protected by the highest form of enhanced scrutiny called strict scrutiny and the Texas Attorney General agrees.
Substantial rights are those rights which the government cannot infringe at all no matter how fair the process unless the government’s actions can survive the appropriate balancing test. This is called constitutional review. Where the rights at issue are fundamental, the default test is strict scrutiny although in certain circumstances the government may prove that a level of enhanced scrutiny less than strict scrutiny should apply. In either case, the State bears the burden of proving that its actions against fundamental rights can survive the appropriate degree of enhanced scrutiny.
The substantive tests are either found within the text of a constitutional amendment such as with the Fourteenth Amendment, or a more general test is applied. In civil cases there is a three part test that measures the importance of the government’s asserted interest, the precision of the authorizing statute, and the precision of the relief requested. Under strict scrutiny, these tests are the compelling state interest test, the narrowly tailored test, and the least restrictive means test.
It is this last test, the least restrictive means test is your path to equal parenting.
Your judge will attempt to ignore these tests and simply act on his or her viewpoint of the child’s best interest. It is your job to force your judge to apply the tests properly. You do this by asserting your fundamental rights in the proper way, then the burden shifts to the government to prove that its family code can survive the appropriate constitutional review tests. The best way to do this is to use our Case Framing Motion and supporting materials that you can get in our Motions Package.
Equal Protection Clause
The Equal Protection Clause does come into play, but not to provide you equal time and rights with the other parent.
The Equal Protection clause comes into play when the judge applies a different set of due process rules or standing and jurisdictonal rules in your civil case because your case is a parent vs parent custody case. Your parental rights are individual rights, meaning that the fact that you are in a suit with the other parent has nothing at all to do with the degree of due process protection must be provided in your civil case.
Under the Equal Protection Clause, you are entitled to the same rules interpreted and applied the same way as they are interpreted and applied in every other civil case, or the government must prove at strict scrutiny that its classification of your case as having different rules can survive constitutional review.
This is a core element of our larger strategy to force your judge to apply all the substantive due process rules fully and provide fundamentally fair processes to you in you case or the judge must prove its reasons for classifying your case differently. Let us help you to force your judge to follow the rules equally and fairly.
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