I’ve recently had reason to review the divorce, child-custody, and alimony statutes of Florida, and I have come away with a strong belief that these statutes are unconstitutional as written. If you have read my book or my other blog posts, then you are aware that the U.S. Constitution has been interpreted by the Supreme Court to give parents primary right to the care, custody, and control of their minor children. The Court has made clear that it is the parents who make the determination of the best interests of their children. There are only two instances that allow a State Court Judge to apply their opinion of best interest over that of a fit parent: 1) if the parent exposes the child to clear and present danger 2) the State has a law that articulates a compelling state interest justifying intervention, that law is narrowly written, and the effect of that law causes the least impact on the parent’s right as possible.
Parents who are fit in marriage do NOT become unfit just because they choose to enter into a divorce or because they are forced into divorce by the other parent. Divorce trials are NOT sufficiently robust to prove a parent unfit under the Constitution.
If the State has probable cause to believe that a parent is placing a child in clear and present danger they have authority temporarily to remove the child. This does NOT grant them constitutional authority to deprive parental rights permanently. To do that they MUST find the parent unfit.
In Florida most of the laws applying to divorce and child custody are found in Chapter 61 but before we get into that let’s start with the State’s civil rights statutes. Marriage and parenting rights are after all civil rights as defined by the Supreme Court. Florida’s Statute 760 is titled “Discrimination in the treatment of persons; minority representation.” 760.01 gives us the purpose of this chapter. Here is what it says, “The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the state freedom from discrimination because of … marital status … and to promote the interests, rights, and privileges of individuals within the state.” The reason I put this here is to show how the State violates its own civil rights legislation in denying the interests and rights of parents and children in divorce.
Florida statute 61.13 deals with dissolution of marriage; support, and time-sharing, and I will show some of the reasons I feel it is unconstitutional. 61.13(1)(a) states, “In a proceeding under this chapter, the court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent or, in the case of both parents, to a third party who has custody…” While this may sound noble on its face it violates the principles of our constitution. First, it only addresses the duty without addressing the right. The Supreme Court says we have a fundamental right to “care” for our children. It does NOT say that you can be forced to pay somebody else to “care” for your child when the State has failed to prove that you have NOT cared appropriately for your child. When it comes to fundamental rights the State carries the burden of proving that it has a compelling interest in intervening. Until the State proves that you are NOT caring for your child properly it is constitutionally prohibited from denying you the right to care for your child directly.
Under 61.13(1)(a)2. The statute says that the court can modify child support payments “if the modification is found by the court to be in the best interests of the child…” It makes no mention of the fundamental rights involved or that fit parents have the right to determine the best interests of the child NOT the Court. This statute grants the Court power where the Constitution denies it.
When we get down to 61.13(2)(c) it states that, “The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child…” Here the statute completely defies all parental and child rights and subordinates those rights to the court based only on the filing of a divorce petition. The State has shown nothing, it has proven nothing, it has no grounds of any type other than that one party has filed a divorce petition and the State grants its courts the power to wipe away fundamental constitutional rights as if they never even existed.
Under 61.13(2)(c)1. The statute tries to show how enlightened the State is when it says, “It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.” This sounds very noble but runs counter to the public policy of the United States which says that parents have fundamental liberty interests (rights) in the care, custody, and control of their minor children which this statute stripped away in the previous section. The state encourages frequent and continuing contact with both parents but doesn’t encourage the notion of parental rights or the child’s rights to be with each parent equally. The state pays lip service to equal protection regarding sex by saying that it remains equally free to strip the parental rights of either parent regardless of their sex. There is no sex discrimination here, just equal discrimination against divorcing parents. The Court flips its magic coin and determines which parent’s rights are to be stripped. The State specifically grants its judges the power to “grant” the right to care, custody, and control unequally between the parents. This statute conveniently ignores the fact that the State does not have the authority to “grant” parental rights only the unconstitutional “power” to deny them.
Under 61.13(2)(c)2. The state seems to give equal rights to the parents but then strips it away by doing what the Supreme Court has said they may NOT do. “The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.” Only fit parents can determine the best interests of the child. What grants the Court or the State extra-constitutional authority to take this right away from fit parents?
Under 61.13(2)(c)2.a. The state says that the judge “may consider the expressed desires of the parents.” However the Supreme Court, as recently as 2000, says that the State MUST at a minimum give some special consideration to the desires of fit parents. They did this without determining if strict scrutiny is required. If strict scrutiny is required, as we argue it is, then even special consideration is NOT enough. This section goes on to say that the court “may divide those responsibilities between the parties based on the best interests of the child.” However, the Supreme Court says that a Judge may NOT simply substitute its judgment of best interest over that of a fit parent even if that judge believes she would make a better decision. The decision simply is not hers to make. Florida ignores the Supreme Court and grants the judge complete authority over the children. 61.13(2)(c)2.b. goes on to give the judge further power to determine best interests in granting one parent sole custody. The Court is granted power to completely deny one parents constitutional custody rights without even a “by-your-leave” to due process or the First and Fourteenth Amendments to the U.S. Constitution. Those are just inconveniences in the face of Florida determining what is best for your child.
Under 61.13(3) the statute states, “For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration.” What consideration does the U.S. Constitution and the constitutional rights of the parents and the child receive? This section speaks of “establishing … parental responsibility” but the Supreme Court has already said many times that a natural parent who cares for and establishes a relationship with their child is recognized by the U.S. Constitution as a natural and legal parent of that child and deserving of full and equal constitutional protections regarding that child. How then can the state “establish” parental rights or responsibilities? How can the State impose its will in “governing” “each parent’s relationship with his or her child” through a parenting plan? All the state has constitutional authority to impose absent a compelling interest is a non-burdensome plan that identifies specifics of how the parents will equally share their rights under the U.S. Constitution when they disagree on particulars. NO disagreement on particulars or even on constitutional rights as a whole grants the State authority to ignore the US Constitution.
Florida Statute 61.13 is sweepingly broad in the power it grants itself over the protected privacy interests, First Amendment interests, and Fundamental Liberty interests of parents, their children, and their individual family units made up of each parent and the children. The language of this statute grants the judge power to issue arbitrary and capricious rulings that are almost unassailable on appeal because only the finder of fact can “determine the facts of the child’s best interest” under this law. This statute violates procedural due process by granting a judge the authority to “at any time” with no other limitations deny a fundamental liberty interest. By this statute the judge can do this without even bothering with a hearing on the matter. This statute fails to give even lip service to the substantive and fundamental liberty interests of parents and children or the privacy interests of their family decisions and arbitrarily grants the judge power to determine the child’s best interest. This statute on its face represents an absolute denial of any parental authority whatsoever to determine the child’s best interests and expressly grants the judge power to ignore the desires of either fit parent.
This statute is clearly, in my non-attorney opinion, unconstitutional on its face; and, if you are facing a custody battle in Florida you should consider challenging the court’s authority under this statute.
If you are uncomfortable with the details of this then read my book, “NOT In the Child’s Best Interest,” and discuss these issues with your attorney. If your parental rights are being denied in Florida, this is the place to start the fight to get them back.
If you would like to read the entire statute with this authors specific comments about individual parts of the statute you can read it on this post Florida Statute 61.13 covering divorce and child custody is unconstitutional on its face: see exactly where and how