Best interest of the child is an invidious and venerable phrase. It is one of the best marketing phrases ever invented. This phrase allows a judge in a family court to do whatever the court chooses, and if a parent challenges a judge, the court uses it to remove that parent from the child’s life, to create debt for that parent, and to punish that parent with impunity without having to apply constitutional protections, and without any worries of being overturned on review. It is fail safe and fool proof. It is the most powerful phrase the court has in its arsenal.
Upon first glance the Texas Public Policy on best interest might look innocuous.
There are two statutes that establish the great lie of the Texas Best Interest of the Child Public Policy:
Texas Family Code Chapter 153 Sec. 153.001. PUBLIC POLICY.
(a) The public policy of this state is to:
(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
Texas Family Code Chapter 153 Sec. 153.002. BEST INTEREST OF CHILD.
The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
THE POLICY LIE
These statutes seem simple enough but politicians and judges, like magicians, misdirect your focus so that they can trick you. Magicians do it for fun. Politicians and judges do it for their own personal interests, usually money and power. This Texas policy demonstrates exactly how the Texas Legislature and the Texas Judiciary lie and manipulate the public to impose socialism on parents who make constitutionally protected choices Texas does not like. Texas just found this sneaky way of dealing with people who make choices they don’t like, by ensuring that the state maintain the power to grab control of the family assets for the people who work on behalf of the state, of course “in the best interest of the child.” We explain what these statutes really say here.
These statutes only apply to divorced or single parents. Through another trick, they make it seem like it applies to married parents too, but no married parents, who aren’t heading for divorce, ever use it, so that is a lie. Add to the end of each of the statutes above the phrase “for divorced or single parents” and you can see the discrimination better. Here, single means parents not married to each other. This brings home the marital discrimination the state is enforcing.
First, let’s look at 153.001(a)(1). Its exact text is (a) The public policy of this state is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.
Removing the lies, this statute would actually read, “The public policy of this state is to take over from ‘divorcing or single’ parents the right to be with their children, make them qualify to be with their children, make sure the parents use as much of their resources as possible while going through the divorce or paternity process. I can test how much the parents really want to be with their children, and restrict the children from the one whose plans and ideas I do not like the most. All of this is possible only because of the phrase the “best interest of the child.” Ask yourself, does the state presume that married parents don’t want to be with their children? Does the state require married parents to pass a test to have their natural parental rights protected? Does the state require that the parents pay child support based on their income?
Your parental rights are First Amendment protected rights of intimate and expressive association that are supposed to receive strict scrutiny protections. Strict scrutiny means that the state must prove its case, not the parent. This gets us to another lie the courts tell. They say the state has complete authority to regulate “domestic relations.” It is hard to argue with this phrase written in this way. When we remove the smoke and mirrors, what the state is really saying is that the state has complete authority to regulate intimate and expressive associations, family speech, and family worship, despite the obvious fact that they are constitutionally protected through the First Amendment.
Now, let’s look at 153.001(a)(2). Its exact text is (a) The public policy of this state is to: (2) provide a safe, stable, and nonviolent environment for the child. Seems innocent enough, but don’t parents have the right to establish a home and to raise their child as a natural right of privacy that is protected at strict scrutiny? And do married parents have a court appointed to examine their home life to make sure that it meets the court’s standards? Texas is telling us here that if you divorce or if you never marry the other parent, Texas will deprive you of the natural individual privacy right and make your choices for you. Did you know that choices regarding marriage, even the choice to divorce, are also constitutionally protected choices that the state isn’t allowed to punish? So while the phrase on its face might look innocent enough and you might think it is a nice precaution for parents who are splitting or who have never been together, this phrase is actually used to punish you and your children because either you or the other parent or both jointly exercised a constitutionally protected choice to not be together.
How do they get away with this? You let them, because you are fooled by the smoke and mirrors. You most likely weren’t told any of this. Like any good audience participant, you were watching the magician entertain you and not paying attention to the secrets behind the trick.
We will kill the surprise for you, the magician did NOT cut the lady in half. There are two ladies, and the box is much bigger than it appears. It’s a trick, not magic.
Now, let’s look at 153.001(a)(3). Its exact text is (a) The public policy of this state is to: (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. How exactly do they “encourage” this? First, they strip you of the rights. Then, they make an arbitrary choice to give more rights to one parent than the other. How do you “share” what they stole from you and unequally assign? You don’t, you end up under the control of the other parent. They assign a dollar amount on you to pay the other parent as your contribution for caring for your child. When your duty to care for your child is actually a direct and personal duty that has no dollar amount on it, at least that’s how it is when you are married to the other parent.
What the state does with your duties is to strip the duty of the corresponding right so that they don’t have to deal with any constitutional limitations on their power and then they convert your duty to a dollar amount. Why do they convert a direct and personal duty to a dollar amount? Because the federal government pays the state to do so. Because $200 Million dollars of the Texas Attorney General’s budget comes from this action. That’s not even all the money. That’s just the Attorney General’s cut.
Who does all this apply to?
Its right there in the text. It only applies to parents who “have separated or dissolved their marriage.” It applies to only divorced and single parents just as Texas intended. Even though they make the general public think that it applies to everyone. You see the thing about lies is they are hard to keep because the truth keeps seeping out. The Attorney General will lie and say these statutes apply to all parents, but here we see the legislature let the truth slip through.
This last few words of the Best Interest of the Child Public Policy of Texas completes the exposing of this lie. This isn’t about all parents. This is clearly about punishing parents who “have separated or dissolved their marriage” for daring to make a constitutionally protected choice that the powers of Texas disapprove of.
ADMINISTRATION OF THE POLICY LIE
The first question to ask is that if the Texas legislature established a state policy, who administers that state policy? Usually, the task of administering a state policy is assigned to the executive branch and new responsibilities are added to an existing department or a new department is created. If the legislature assigned this socialistic policy to the executive it would have to allocate many hundreds of millions of dollars to establish an agency to make best interest policy choices for individual children, to create parenting plans, and to seek court approval of these policy decisions and plans. Nobody in Texas would tolerate spending Texas tax dollars on a socialistic agency of that magnitude. So, what did the legislature do?
What was the answer to the Texas legislative challenge of how to institute a massive socialistic bureaucracy in Texas without creating tax riots? The legislature assigned the policy administration duties to judges. Instead of having executive officers making the policy decisions regarding individual families, the legislature assigned the policy administration to judges. But that violates the separation of powers doctrine and is unconstitutional you say. So, what, says the legislature who apparently must believe parents are simply too stupid to know when their rights are being violated. The legislature must think you are too stupid to understand a violation of the separation of powers doctrine when you see it. Are you?
This was established by 153.002 the text of which states, the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Sounds reasonable right?
What this really says without the smoke and mirrors is this, the state’s individualized policy decision for a family will be made by a sole government official, a judge, at the same time the judge doesn’t question whether that policy decision is compliant with Texas statutes and constitutional law.
When stated this way, without the smoke and mirrors, the separation of powers violation becomes more obvious. Judges are first and foremost supposed to be neutral and impartial. If they are not they are not qualified to establish a court to hear the issue. They have no jurisdiction whatsoever if they are not neutral and impartial. This is why the legislature and the executive make policy decisions and the judiciary is supposed to determine whether those policy decisions are allowable under our constitutional systems. What are the chances that any judge will ever rule that one of his or her own policy decisions violates the constitution? Do numbers less than zero count?
The most important thing to remember about the most successful political marketing phrase ever created, the best interest of the child, is that it is nothing more than an opinion. A judge can no more determine the best interest of a child than they can determine the best political candidate, the best sports team, the best apple pie, or the best Fourth of July fireworks display. “Best” is an absolutely unmeasurable condition for general questions such as what is in a child’s interest.
We recommend that you completely stop using the term best interest in your case. If you still don’t know why, replace it with these words: the mere policy decision of a sole government official on matters of personal conscience.
The United States Supreme Court has clearly stated that when a state officer makes a best interest determination for a child, that determination “is a policy judgment rather than a constitutional imperative.” What is it when a parent makes the choice? It is a constitutionally protected privacy choice on a matter of conscience. Did you know that you have an absolute right on matters of conscience? You have the absolute right to make your own determinations of what is in your child’s best interest. The state has zero right to interfere with or second guess your determinations of what is in your child’s best interest, none whatsoever.
What the state can rightfully do, if it does so equally to all fit parents, is to set standards for what actions are impermissible, but those actions have to be measured in terms of specific harm to or neglect of a child. If you harm your child to a degree established by law, the state may interfere in that choice. What the state may never do is to place a sole government official’s opinion about a matter of conscience over yours.
The vast majority of custody disputes in this country are nothing more than disputes over matters of conscience and the state claiming that it has a right to determine matters of conscience for you simply because you have a child and you are divorced or single. The vast majority of custody disputes are examples of the state infringing your absolute right to privacy on matters of conscience and making you litigate over it and driving you into bankruptcy and deeper debt than you ever might have imagined could be possible in your lifetime.
Now that you know the trick. Now that we have removed some of the smoke and mirrors for you, you will begin to see how you are being screwed by officials of the state of Texas and in all states for that matter who continue to have that the best interest of the child as their primary consideration in the court, for their own personal interests and personal gain. Are you going to stand up for your absolute right to know what is best for your child or are you going to embrace the socialistic idea that the state of Texas knows best, your socialist judge knows best?
I bet you didn’t even think that supposedly conservative Texas was actually pushing a socialist agenda through their family courts.