You might have encountered an attorney or two, or three, or fifty that will all tell you the same thing, arguing parental rights in family court will do nothing but irritate the judge and you will lose custody of your child to the other parent. So you are afraid to argue your parental rights and figure that you have no choice but to take the chance and do what you can to appease the judge. We can show you why it is a terrible idea to ignore your parental rights.
1. My judge said that my rights don’t apply the same way in family court as they do in criminal court.
That is true enough. That doesn’t mean that the judge doesn’t have constitutional limits and that doesn’t mean he is not limited in what he can do. And it doesn’t mean that you don’t have constitutional rights that have to be respected by the court. Ask the judge to have a determination on what process is due so that you know how they actually apply. Otherwise, the proceedings are fundamentally unfair.
“What process is due” is a phrase that we teach about in our declaratory judgment motions. We have evolved these motions into a pre-trial motion and have suggested that if you are able to amend your Petition or Counter-petition that you put the arguments in there. This way the court is aware that you will be making the argument, and that you are asking for the protections for these rights to be applied, and that you are framing your case different than the court is accustomed to seeing their pleadings written. Your pleadings is your outline of your case and it guides the judge on what will be expected of the court and what is being asked regarding relief from the court
Family courts like to lie and trick you out of your rights, or at least your belief in your rights, so you do this to position yourself in the eyes of the court as someone who is invoking these protections. I know that I am repeating myself, but it is that important.
There are some differences with how the constitutional protections are applied, but your protections for fundamental rights don’t cease to exist just because you stepped into a courtroom. And in fact, if you did not have rights than you also don’t have a right to tell the judge no, or to object, or even to notice and a hearing. Ah, but here is the catch 22, the court is applying some rights while ignoring others. The court is going to apply some of the basic due process and that essentially is the right to notice and a hearing. Appellate courts have even gone so far as to say that some of the rules of civil procedure aren’t applied unless you request the rule specifically. One of those rules you will no doubt become familiar with is one that most attorneys and judges will call just “The Rule.” This is where they make all of the witnesses who will testify in your case go out in the hallway and sit and not hear any other testimony, and not allowed to discuss their testimony with anyone else who is a witness, and testify without the other witnesses in the courtroom. This comes from the Rules of Civil Procedure.
Unfortunately, you are going to have to do the same thing with your parental rights. Attorneys don’t like to ask for this because the judge doesn’t like to have to stay within the boundaries of the constitution. Judges have enjoyed practically unlimited power and the ability to encroach into your family and tell you what to do and how to be. I wouldn’t doubt actually if some county’s don’t have judges making bets amongst themselves, the way that Orange is the New Black’s 7th season had the correctional officers betting amongst each other in a type of fantasy prison (similar to fantasy football) but instead bets about inmates and what behavior they will display. I wouldn’t put it past some judges to be betting which of you they will see back, which of you will be criminals before this is over, which of you will ultimately end up losing even more rights and time with your child, and even be labeled a felon and go to jail.
This is serious stuff and your rights are not something to take lightly. You will spend thousands and thousands of dollars on this stuff if you are not careful. Your rights also create a protective shield from this extortion as well. Don’t use your rights and they can cost you anything they want to. They will tell you to get others involved to help the court make the best interest determination for your child. These court-appointed experts are called Guardian ad litems, amicus, child attoirneys, court-appointed advisors, parenting facilitators, and parenting coordinators, to name a few. You can also have court-ordered therapy, court-ordered counseling, court-ordered co-parenting sessions, court-ordered reunification, and the list goes on.
Bottomline: Learn your rights, use them, or risk being driven out of your child’s life and driven into bankruptcy, and possibly homeless, jobless, and completely destitute.
2. My judge says that because family law is not a criminal court the protections under the Constitution don’t apply the same because family courts are courts of equity/probate/civil courts and are contract/complaints and monetary recovery courts.
Look at the answer to question #1 and we repeat “Your fundamental rights protections don’t just go away because you step into a family courtroom.” Family law court is a civil court, the constitution strongly protects civil rights. Due process applies in civil courts. The Rules of Civil Procedure apply in civil courts, and your judge is bullshitting you so they can take advantage of you.
Everyone who works in the courts can make a whole lot of money if they make you believe you have no protections. When someone is attacking your right to be with your child you’ll do just about anything to protect your right to be with your child.
3. I was told the constitution doesn’t apply to family court at all.
This is not true. Many family courts like to say that they are equity courts and so the constitution does not bind them. ) If your family court is still calling itself a “court of equity” then you should not fall for that. They cannot be acting under equity when there are statutes directing their use of judicial discretion. They only use equity when there is no statute.
The constitution is controlling in all 50 states and its territories. Your rights under the constitution are protected under the Fourteenth Amendment. And the judges have taken an oath under the Sixth Amendment to apply the constitution.
Whoever is telling you that the constitution doesn’t apply to their court is either lying or ignorant. The constitution applies to all courts. It doesn’t matter if it is an administrative court, civil or criminal court.
This is also a way to cost you more money. If they do not apply the constitutional protections then they can make you fight over things that otherwise might have been protected. For instance, you don’t have to fight over how much time each parent gets, the constitution requires a balancing test be used to determine what process is due with fundamental rights. The test to use is the Mathews test. This test requires three steps: 1. Identifying the private rights at issue 2. What are the risks of erroneously infringing those rights 3. The rights weighed against the government’s specific asserted interests. Apply these guidelines and you will see that there is so much that they cannot impose on you. This is your silver bullet. And you can find more on how we apply this test in our motions package.
4. My attorney says the state statutes say the opposite of what you are saying about my rights in family court.
The states are getting it wrong. Statutes are proven to be incorrect all the time. Troxel v. Granville was a Supreme Court case that overturned a statute because the statute didn’t consider the preference of the parent. We believe that this opinion, while it has helped to bring attention to the fact that parental rights do receive protection from wholesale state infringement, the case opinion left a lot open and so the state continue to find ways to violate your parental rights.
Appellate opinions typically only address the issues that they need to address to resolve the case. So if the appellate court can resolve the case without getting into more details on rights or without getting into all of the constitutional issues that were raised, they will. Some cases however will contain dicta within the opinion. This is a judge expressing their opinion on something that is not controlling. They just felt that it was an opportunity to express their thoughts on a particular issue. Many people including attorneys and judges will use this dicta to support their positions and so if you and your attorney don’t know any better you might think that their arguments are supported and that you are screwed and have to give in.
Family law courts are terrible about this. They use the dicta out of Troxel all the time to say that best interest of the child is a proper standard.
5. I was told that in these courts attorneys are not a necessity, juries are not afforded and burden of proof is on you to prove and not the courts.
You always have the right to an attorney. The state does not have to provide one in all instances.
Juries are required for criminal matters and they don’t require them in quasi-criminal matters necessarily. It depends on how fair the procedure is. We just wrote a form of this argument in our child support motion. The principle is the same even if you are not talking about child support. If they are violating your rights based on past conduct it is quasi-criminal. It is a punishment and punishment standards must be applied. They are getting away without doing that because nobody is fighting them properly. They claim they are protecting the child, and they may be protecting the child. But they cannot ignore the punishment aspect of this just because they are protecting the child.
Juries are not the way you want to go when it comes to questions of law anyway. So make sure you know what you are asking the court to do and what the other side is asking the court to do, and then use what you have learned in the membership site here to apply your analysis steps so that you know what decision to make.
6. My attorney told me that the court does not have to prove me unfit in a suit between two parents.
According to the Supreme Court a parent is presumed to be fit and fit parents make the best interest determination for their child. Because the court sees you and the other parent’s rights as competing, now they will put you through an expensive process of exploratory searches in the form of evaluations and studies in order to meet the better parent model. The trial court will say that fitness as one of the factors considered under best interest. Presume that this is what they are doing even if your statutes don’t telegraph it for you.
The state must prove the parent is unfit if they are going to terminate your rights. That they do not dispute. In termination hearings the state must properly adjudicate the parent. Again they do not dispute this. But when it comes to parent versus parent child custody suits, attorneys will tell you that the only due process that is going to be applied to you is notice, a chance to be heard at a hearing, and a chance to try and prove you are better than the other parent using the application of best interest of the child factors.
This is insufficient to protect fundamental parental rights. But you will need to fight this so that you can overturn the bad precedent that has been set in your state regarding this matter.
In a child custody suit between two fit parents, the court is the state, is a state actor, and the state always bears the burden of proof, and must adjudicate you properly with the full protection of your rights, period.
The challenge you face however is that even the appellate courts are upholding this unconstitutional practice.
The appellate courts in your state have maintained that there is a difference between the protections that the trial courts are required to provide a parent based on the type of party in the suit. Two biological parents are seen as having exactly the same rights and therefore are subject to one of them being made a lesser parent than the other when they bring their dispute to the court. The court has maintained that they view these rights as in conflict. The appellate courts have affirmed that one parent can be made superior and one inferior.
We disagree, and the model that we teach is in line with the Supreme Court’s decisions. That parental rights are not attached to the marriage and that these rights are individual and therefore require protection from anyone trying to infringe upon them, yep, including the other parent.
In family court, they will tell you that they are not taking your child, that they are just allocating the rights so that they can be exercised according to what is best for the child.
Your rights however, are not conditioned on what is best for the child. The state must prove that you have not adequately provided for the child. The Supreme Court has determined that as long as you have provided basic food, clothing, and shelter that you have provided for the child. The rest of the stuff is just layers of extra requirements the state has piled onto divorcing or separated parents because they can and have gotten away with it for so long.
7. I was told that because me and my ex cannot get along and we asked the court to resolve our dispute that the court does not have to apply the constitution.
The court is lying to you. The court has no authority whatsoever outside of the constitutional limitations. This is inherent in Article IV. The overwhelming duty of the court is to protect constitutional rights, not to reject them outright. This is no different than the court saying that blacks didn’t have rights, women didn’t have rights, and gays didn’t have rights. It is shameful and disgusting.
It is a bold-faced lie that allows the courts to trick you so that they can sell you services to create litigation that should not exist in the first place.
There is no requirement for getting along with your ex to have your rights protected with your child.
8. My attorney says that best interest of the child will determine my rights with my child not the constitution.
Number one, get a better attorney because your attorney’s job is to protect your constitutional rights from government tyranny, even when the tyrant is the judge.
Your judge is saying that your rights will be violated based on the judge’s personal viewpoint regarding matters of conscience in child rearing.
This is not the rule of law, this is the rule of individual tyranny and your judge knows it.
A NOTE ON BEST INTEREST OF THE CHILD: Best interest of the child in most states is made up of factors. These factors in some states come from caselaw and in others were written directly into the family code of that state. Regardless all best interest of the child factors are exploratory searches and invasions of privacy choices made during the time the two parents got along.
The court views your disagreement as authorization to review these lawful and private family decisions that you made prior to the disagreement.
What is actually happening however and the real problem with the best interest of the child is that the court and the attorneys use it to make you think that they are looking out for your child’s interests and going to protect the child’s interests. They make you believe that you have to qualify to keep the rights to your child, or in the unmarried father’s circumstance, to get some rights to your child. You have those rights when you walked through the door as long as you have established a relationship with you child. These rights are inalienable. You can find more on these rights in our book, NOT in the Child’s Best Interest and more on “the MYTHS Family Courts Tell.”
These rights don’t just magically disappear as soon as you walked through the courtroom doors or when you file to petition to the court. The court is making you believe that you gave them to the court to re-distribute in your petition.
The other problem with best interest of the child statutes is that many parents go along with their attorneys and agree to the court using best interest of the child statutes and evaluating each of their parenting choices, skills, attributes, and basically anything else the court wants to dig in to in order to choose the better parent. The attorney has you ask for it in your pleadings. The court then sees this as consent was given and you waived your rights and will let the judge decide between you and your ex who will decide what for your child and how much time and when each parent spends with the child, as well as any restrictions necessary in order to protect the decisions the court has made. The court has become the child’s super parent and you now are subjects under this King. Anything you and the other parent disagree with from now on has to go through the judge or through the minion the judge has assigned to you. So now you can see why judges get so confused and angry when you decide to appeal the parenting plan the judge creates for your child. You framed your case this way and now you want to complain when you don’t get the result you wanted.
You get very invested in the case that you built and you think that you put on a stellar case and that there is no way that the judge’s decision can remain. You might think that you case is even good enough to prove error, after all you think that you presented way more evidence leading to you as the better residential parent choice and that your testimony regarding the other parent exposed what a terrible influence that parent is on the child, so you might think that an appellate court will overturn the decision because the judge made a terrible choice.
Your attorney then tells you that it is nearly impossible to overturn a best interest determination. You turned it over to the judge, you did not invoke the laws that protect you from this broad discretion. You didn’t object to the judge doing this, you didn’t preserve error, you didn’t therefore preserve this argument for appeal. Not many attorneys will object to the judge after your pleadings have outlined that your case is framed under the statutes and therefore you would be contradicting what you filed. No way will an attorney do this. You would have to completely change course and many attorneys are wary of doing that because they know that it is going to irritate the judge.
Bottomline, framing your case by following the current status quo of asking the judge to make a best interest determination, makes it nearly impossible to get a decision you don’t like overturned on appeal. That is not what the appellate court is for. They are a court of error and how can a subjective opinion or a matter of conscience be error. You asked the judge to do this. This means the judge is going to measure the factors against his own personal beliefs, biases, and personal prejudices. the judge did what you asked, and then you don’t like the result and say the judge made a mistake. Then the appellate court says that you are just a “family court loser” trying to get another shot at litigating the case with the appellate court because you didn’t like the judge’s decision.
Supreme Court caselaw says that parents are the decider of what is best for their children. Nothing says that when you are in disagreement with the other parent that this right goes away. There are a few exceptions when the state as a state actor can step in. But the issues the state can step in and take over in parental decision making is very narrow. One of the issues a state trial court can decide is what school a child will go to if the parent’s disagree on schools.
9. In civil court you are guilty until they prove your innocence and because you aren’t being charged with a crime you don’t get the same right as a criminal to an attorney or a jury.
You do have the right to an attorney. They just don’t have to assign one to you.
The Sixth amendment provides the right to a jury in criminal cases only. Your state can give you the right through statutes. States can always expand on rights they just cannot subtract from them.
10. My attorney says that I don’t have these rights, the judge is going to decide based on best interest of the child, and refuses to make these rights arguments for me, what should I do?
Get a different attorney. If you cannot find one, then you have to decide whether or not you want to try to do it on your own. This is why we have created our membership and website because parents didn’t have anywhere to go to get information outside of what attorneys are teaching. We discovered that attorneys restrict the information that they give you about your rights so that they can continue to stick with their illegal status quo.
Attorneys are restricted by the BAR association and rarely will tell you about any of these rights.
You will have to try and persuade the attorney. You can use the most recent American Bar Association Delegates Resolution 118 passed on August 26, 2019 that states that the BAR association’s policy is now directed to recognize that their policies were only protecting the rights of the child and not protecting the child’s right to the family integrity and family unity. We have suggested that attorneys use this and if you are in Texas use the Attorney General Kenneth Paxton’s newly released opinion from February of this year, KP-0241, that says that strict scrutiny is required even when other standards like best interest is also applied.
BONUS QUESTION FROM FFC:
Why do you say that a shared parenting presumption doesn’t solve the problem?
If you leave best interest in place they will always use best interest to defeat your presumption. It is just a way of appeasing the masses but leaving their unconstitutional practices in place.