If you deprive an innocent parent of Parental Liberties, do you deprive a child of their First Amendment Rights as well? We discuss this in chapter 15 of our new book coming soon, “Not in the Child’s Best Interest.” (some more notes from running through more edits of the book follow — keep in mind that these are from notes and these posts are not meant to be perfection — just conveying some of the ideas that we cover in the book)
Parents and children all over this country are being deprived of each other because of inflammatory and perjurious allegations. Nothing more than allegations and personal bias and judgment! “This is one of the many reasons why we, in this book, state that any allegations of a criminal nature should not[SP1] be heard or entertained in a divorce proceeding, but referred to CPS, the DA, or the Attorney General. This not only protects the accused, who may be wrongly accused, but it also protects the child, who may be a victim, from being further exposed to victimization, when the divorce court violates criminal due process. When Due Process is violated, guilty people can go free, and retain their rights to their children. Few people want criminals to go free.
Many people will argue that we need to immediately separate a potential child abuser from the child, and that divorce court is the place to do this. Divorce Court is the wrong place for this! Criminal Due Process provides immediate means to separate a child from an alleged abuser, which also provides protection for the accused. Where child abuse is indicated, the criminal system has well-established mechanisms to protect the child.
There is absolutely no reason to deal with unproved criminal allegations in a divorce proceeding other than to conduct a witch hunt, and to allow testimony that would otherwise be inadmissible, because it violates constitutional protections. If a former spouse is required to make their claims as criminal charges, and is found to be lying, then they can face charges themselves. They avoid this penalty in family[SP2] court and often make false charge after false charge with no repercussions at all. Meanwhile, the falsely accused are repeatedly traumatized and subject to loss of liberty. Essentially, the Divorce Court provides few if any protections for the falsely accused. Many might argue that they do this for expediency purposes. We have read and cited earlier in this book that this reason is not sufficient for the court to bypass due process.
We, absolutely, believe that children should be protected, and that the Constitution should be followed. The two ideas are NOT in conflict with one another. We are simply saying that a proper criminal[SP3] mechanism exists that is designed to do both. It has safeguards in place, which, although not perfect, are much more rigorous and thorough than anything that Family Courts have to offer. If you believe in freedom, the rule of law, justice, and in not unnecessarily allowing a true criminal to escape for reasons of violations of their right to a fair process, then you must believe in due process for accuser and accused, the two are inseparable in a free society.
Here is what the Supreme Court has to say about this: “As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents “may at times be acting against the interests of their children” … creates a basis for caution, but it is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child’s best interest … The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”— Parham v. JR, (1979)
The Fifth Amendment also conveys protections against double jeopardy or in punishing the same person twice for the same offense. There are some clear distinctions between civil and criminal cases related to the double jeopardy clause. The case history in this area is complicated and beyond the scope of this analysis. However, the same argument used in Boyd to treat a civil case as a criminal case from a constitutional perspective can be applied to a divorce proceeding where criminal allegations are made and forfeiture of a Fundamental Liberty is the result of the proceeding. In other words, if you “convict” a parent of a crime in a civil divorce proceeding and then remove their Fundamental Parental Rights as a result, then it may be argued that the State tried, found guilty, and punished that parent in the divorce proceeding and therefore is prohibited by the Fifth Amendment to again try them criminally for the same crime. That parent may be able to challenge this as not satisfying due process required and get it overturned and get the children back into their possession. If a parent really is a danger to the children, none of us should find this acceptable. Family courts refusing to recognize that the constitution and SCOTUS rulings apply to them are creating this risk to everyone’s children.
All it will take is one smart criminal defense attorney to recognize that their client, accused of criminal child abuse, was previously held to answer for that crime in a divorce proceeding. If in that proceeding their client’s Fundamental Parental Rights were restricted, they can then argue that “Double Jeopardy” attaches. If they are successful, the criminal can then NEVER be prosecuted criminally.[i]” *
And if that parent challenges this deprivation of their fundamental rights properly they could find a way to get the court’s ruling overturned and have their rights restored to have possession of the children again.So if you keep wanting to take the chance with your children’s safety, then keep letting the family court conduct improper hearings on pleadings related to danger and abuse of your children.
* This large quoted block of material consisting of several paragraphs was taken from Chapter 15 of our new book, “Not in the Child’s Best Interest.” It is difficult to take segments of the book and fully convey the entirety of the argument. However, we hope that by sharing segments of the book until it is published will help you request that your attorneys be more creative and not fall into the patterns of old that have resulted in judgments in error and have ripped children from fit and loving parents far too often.
[SP1]we are aware that there are problems with the D.A. and CPS, but we cannot allow imperfections in those departments deter us from utilizing the systems that have been put in place to protect due process.
[SP2]Some states are having to amend their family statutes to include charges for perjury. This would not be necessary if they properly required that the parent making the accusations go through the proper charges process.
[SP3]What is being proposed is that family court proceedings are integrated into the current processes of other courts that we already have in place. Family law has been operating on its own without application of most of the other laws. It has just been recently that they have acknowledge application of contract law for some parts of a divorce decree. It is better to acknowledge the integration of other parts of laws into family law rather than to re-create the same processes into the family law system. That is just duplication and not an equivalent of the system that is already in place. Separate is not equal.