When Does Divorce Court Have the Authority to Take Your Equal Time from You with Your Child?

This post is sharing some more valuable content on child custody and divorce from our soon to be released book “Not in the Child’s Best Interest.” This excerpt explains more on parens patriae, its role, and where the power and authority originate in child custody:

“If the State intervenes in the custody rights of parents, it also intervenes in these natural rights of the child. Our deference to the rights of individuals demands that we respect these rights. All of these rights are Fundamental Liberties deserving of protection. There should be NO instance where the State intervenes in these Fundamental Liberties without the highest level of care.

When the State has taken great care to set minimum standards of care for children balanced against these Fundamental Liberties, and parents find themselves unable to provide that standard of care, then and only then should the State be allowed to intervene. The State as a proxy for us all, can and should be the parent of last resort. The State should, in those extreme cases, where parents do not maintain minimum standards of care for their children, or where parents become unavailable to care for their children, step in and provide for the children. This is appropriate in a free society, only as an action of last resort.

The problem, we face in divorce court, is that judges believe that the State, as was the King, is the parent of the FIRST RESORT and can, without qualification, assume all rights of parents, and then, delegate those rights unequally to either parent in a divorce, as they see fit. They assume that the State is always the primary custodian of the child and only delegates custodial authority to the parents. This idea is simply repugnant to our American tradition. Certainly, none of our Founding Fathers ever discussed this type of power, or any power for that matter, originating with the State. They only spoke of power and authority originating with the people.

If power and authority originate with the people, then the State needs a triggering mechanism to give it authority to intervene. Many States, assuming that authority originates with the State, simply ignore the need for a triggering mechanism, believing that the State always has the authority to intervene. Other States create a trigger by assumption. For instance the Tennessee State Supreme Court in Hawk, stated that children are always harmed in divorce so the filing of a divorce creates the trigger that allows them to intervene.

They don’t seem to care that the United States Supreme Court has clearly articulated that States may not assume away a Fundamental Liberty. Their bias runs so deep, that until the Court actually specifically rules that harm has to be measured the same in married and divorced, and can’t be assumed away, they will continue to assume that the harm inherent in divorce is not a trigger for their parens patriae interest. There is another problem for Tennessee in this assumption. If divorce causes harm to the child, then the parent filing for divorce can be considered the source of the harm. Under the State’s logic, the other parent need only argue that the parent initiating the divorce is harming the child that they along with the child are simply victims of this parent, and therefore, the child should go to the parent who is victimized. It would be interesting to see how the State of Tennessee would get itself out of that one.

The States are clearly either unwilling or unable to see beyond their bias against divorced parents. These issues have already been ruled on by the Supreme Court. The Court has consistently limited the State parens patriae power to one of LAST RESORT in the face of Parental Rights. For instance, in Wisconsin v. Yoder, the Court clearly stated that parens patriae cannot be broad and sweeping in the face of a Fundamental Liberty, in this case, Religious Liberty.”

At least one Federal Appellate Court has weighed in on the issue of parens patriae, and, if you are in the third federal court district, then this is law for you that can be used directly in your custody battles, as controlling, or as an Appellate Court Opinion the Trial Court MUST follow. If you are in another Federal District you can still use this case, but your Divorce Court is not required to follow it. This one will be particularly helpful if you are facing unsubstantiated allegations of child abuse. This case is about the State over-stepping its authority in removing a parent from the home, under threat of placing the child in protective custody. The State acted on an anonymous tip and could demonstrate no probable cause to suspect that any abuse had occurred.

State governments may not properly override parental decisions or terminate custody, unless 1) parents delegate their authority to the state voluntarily and knowingly, or 2) the state demonstrates through appropriate due process that there is clear and convincing evidence that the parents have triggered state parens patriae interests by placing their children in clear and present danger.

— C.F. Croft v. Westmoreland, (1997)

That is just another glimpse of our upcoming book, “Not in the Child’s Best Interest: How Divorce Courts Get it all Wrong and the Constitution can Fix It.” For more case citations and reasoning to help you articulate your rights or your client’s rights to the court, our book will be available soon.

Keep following the blog here so that you can get other valuable resources in the meantime as we continue our journey towards publication and in helping attorneys and parents protect their rights from a family court system that has gone off course and become slaves to inflamed emotional drivers.