Before you believe that “You Invited the Courts Into Your Life” in your child custody battle, listen to Ron B Palmer’s 4th episode of UPLa. This podcast provides you with information your attorney is not telling you, at least not yet.

Hi and welcome to another podcast of Ron’s Unauthorized Perspective on Law with analysis, and tonight I’d like to talk to you about a concept that I heard Dr. Phil repeat and I’ve heard other courts repeat it.  There’s a horrible, horrible case I write about out of New Jersey, the New Jersey Supreme Court that talks about this. And it just floored me when I heard Dr. Phil say this. I don’t normally watch Dr. Phil but he happened to be doing an episode on parental alienation so I stopped for a few minutes to watch him. And what he said was, and it’s completely and utterly wrong, but what he said was that when you go to court, when two parents go to court over custody you invite the court into your private life. And I’m here to tell you that that’s a crock of s***. I’m sorry to be so direct, but that is the most utter complete legal garbage I’ve ever heard in my life, and anytime any attorney or any judge tells you that you know that they are trying to put one over on you. They are trying to deceive you. They are trying to rip you off, okay. That is not their role.

The Texas Supreme Court said that the court is to be the fortress for the protection of our fundamental rights. Think about that. The court is the fortress for the protection of our fundamental rights. Think about that. That’s what the Supreme Court has said about it. Almost every federal appellate court has said that it is always in the public’s interest to prevent the violation of someone’s constitutional rights, right. This is justification in the federal courts for issuing injunctions; which is equitable relief to stop some action by some third party whether it’s government or some individual, or corporation. And what they are saying is that if that individual, that Corporation, or the government in some way is using state power to infringe your constitutional rights, then it is always, always in the public interest, or it is always public policy to prevent that violation. And the legal terms that the courts use in this phrase is “The courts can issue the injunction to stop it.”So that’s the foundation for what courts are supposed to do.

It goes even further, Chief Justice John Marshall. If you’re not familiar with who he is, he was one of our earliest Chief Justices. He wrote the most famous Supreme Court cases ever written. He wrote Marbury versus Madison. Marbury versus Madison was written in 1805. And that is the case that establishes the authority of the courts to interpret the constitution and use the judicial power to enforce their interpretation. Now just real quickly that case also said that the executive branch and the legislative branch have the exact same power to interpret the constitution and to use their constitutional power constitutional power to enforce their version their interpretation of the constitution. He never ever said that only the courts get to interpret the constitution, which a lot of people like to say. But that’s an aside. Now one of the things he said is that, and the Supreme Court has repeated this phrase other places, right. But, one of the things he says is that the sole province of the courts. The sole job. The only job of the courts. The only thing they’re supposed to be doing is adjudicating the rights of the parties, right. Their only job. The only reason the court exists is to determine what the rights are between parties in a dispute, parties in a suit. It doesn’t say anything about what the rights to a third party are, and the child is not a party to your suit in your custody suit. It says nothing about determining what the state’s opinion is about your child’s best interest. That’s not the courts job. The courts job is to determine what the rights of the parties are and to protect those rights; sometimes that’s to say one party has all these rights and the other party has no rights in this context, and that’s the ruling of the court. Other times, such as in family law, the court is to say both parties have rights and those rights have to be balanced and when they’re balanced they have to follow certain substantive rules, all right.

In this case, in the case of parental rights, both parties have full and equal rights. So, they are absolutely full, they are absolutely the exact same rights. The only problem is you can’t both independently exercise them at the same time with a single child. You can do it jointly if your married or you’re getting along and you’re spending time with the child together you can do it jointly. But if you don’t wanna be around that other person then you can’t both exercise your rights at the same time. Now this is different than some other rights, sometimes one person has a privacy right where another person has a different right, and those rights clash based on the context of the case, and the courts have to balance which right is more important, which right is stronger in this particular case. And almost never do they say one of the rights is not relevant at all or it goes away. They never say that. The federal courts, I’ve never seen them say that. They say well this right is a little bit more important than this one, and we’ll balance in this certain way in this certain context. But if this situation changes, if the context is different, the balance may come out different. And there are very clear rules around how to do this, especially in the First Amendment context which we talk to you about all the time.

So what the courts are supposed to be doing, the sole province of the court, the only business of the courts is determine what your rights are relative to your ex spouses rights, or the other parent of your child even if you were never married, you both have rights. And the court’s only job is to adjudicate those rights, to judge those rights. The best interest of the child is not in the province of the court. It simply is not. That’s you’re right as a fit parent to determine. And because that is an opinion based on matters of conscience, which the government can’t get into. It’s your viewpoint, what’s best. The other parent has a viewpoint, it may be different. Well guess what rights are only important in that they protect us when we disagree. If we all agree rights are meaningless because we agree and there’s no conflict.

Rights protect us when there is a conflict. When you disagree with the other parent is when your rights come into play.

Rights protect us when there is a conflict. When you disagree with the other parent is when your rights come in to play.

Rights protect us when there is a conflict. When you disagree with the other parent is when your rights come in to play.

You have an absolute right to disagree with that other parent on matters of conscience. Absolutely and totally and the government cannot get involved in your disagreement on matters of conscience, okay. This is hugely, hugely important. So what the Court has to do is to look at your rights and the other parents rights and determine how you are going to exercise those rights even though you don’t want to exercise them together and you can’t agree on how to exercise them. It is not within the Court’s authority to strip your rights and say the other parent has all the rights. They can’t violate your rights. They have to follow substantive rules and that’s why we go with the First Amendment because substantive rules in the First Amendment context are the strongest substantive rules we have in our constitution. And they have a couple of levels, right. We all hear about rational basis, that’s the lowest level when you’re dealing with fundamental rights rational basis doesn’t apply you go immediately into intermediate level, right. First Amendment rights – time, place, and manner restrictions, right. You can speak on Thursday, you can’t speak on Friday, that’s a time, place, and manner restriction, or a time restriction. Those are legitimate provided the government has a substantial justification for it and provides ample opportunity for the speech to happen at a reasonable time and place that’s not disadvantaging you, and their choice is not based on the content of the speech. They can’t say that you can only speak on Thursdays because you’re a communist and we don’t wanna hear from communists. That’s a content-based violation. When that happens you go up to the highest level of scrutiny, the highest level of review, the highest level of substantive protection, and that means that the Court must provide a compelling state interest, the statutes they use must be narrowly tailored to affect, to achieve only that interest without infringing any other rights. If it gets just a little bit out of the way and it infringes a right unintentionally then it is no longer narrowly tailored and it fails the test, and they fail, the government fails. They don’t get to do what they are doing.

So think about the best interest of the child standard. How many rights do they sweep away with the best interest of the child standard. Those laws are not even remotely narrowly tailored. In fact they are as broadly and widely tailored as possible. And we have appellate court and supreme court decision in the states over and over again that says the judges have broad discretion, sweepingly broad discretion, nearly unlimited discretion. What that means is their rules aren’tt narrowly tailored, they can do whatever they want. That’s not allowed in the First Amendment context. But it even goes further right. Even if the state can prove that it has a compelling state, that means an interest of the highest order that has to be achieved, it can’t be avoided. If they choose to enforce it for you and not someone else, it is not compelling, it is not of the highest order, right. So why this is important, because they don’t apply best interest to married parents, they don’t apply it to the state when the state is caring for children, they only apply it when two parents are in disagreement. That means best interest of the child is not of the highest order. And besides that the United States Supreme Court has already said point blank that it is not a compelling state interest. You cannot get any stronger than that.

But even if the state has a compelling state interest and they have a narrowly tailored statute that says they can do what they are doing, they have another test. It is very tightly integrated with hasn’t they can do with their doing there is still another test and it is very tightly integrated with the narrow tailoring. It’s called least restrictive means. So if you get past the first two prongs with the test then whatever the court orders it has to be the least restrictive means possible on your rights. So the court can only go as far as necessary to achieve that compelling state interest and no further. And more importantly the Court has to prove that that’s the least restrictive mans, they have to demonstrate it. The Supreme Court has said explicitly that must be demonstrated by the government, all right. So this very important thing is where you get your equal rights by the way. It’s not the equal protection clause by the way. Forget that. It’s least restrictive means.  Anything other than 50/50 custody and possession is more restrictive on one parents rights and on the child’s rights than any other division. And that means that’s where the Court has to start.

So let’s get back to the original point, you did not invite the Court into your business. You need to look at your pleadings because sometimes your attorneys will do this for you and as far as I’m concerned it’s malpractice. But if your attorney said they are asking the court to make a best interest decision, your attorney is telling that board court that you want them to violate your fundamental First Amendment rights based on the court’s viewpoint regarding a matter of child rearing which is a matter of conscience, right. That’s not what you wanna do. And even if you ask the court to do that they don’t have the authority to do it. So they can’t do it, all right. Nevertheless they will because they love to violate your rights in this space. So you wanna look at your pleadings and make sure that’s not in there and make sure your attorney doesn’t default to it because they will. When they get stressed and they get caught up they will default to that garbage. And you need to stop them right there and if you have to you need to fire them on the spot and raise the objection in court, all right – which is an extreme solution but it is something you can do. But if they do that in court you need to stop them and you need to argue with your attorney and say “no you backtrack that and you pull that, you are not asking this court to make a value, a viewpoint based determination regarding my rights.” So what you are asking the court to do and what you are supposed to be asking the court to do is to adjudicate the rights that you and the other parent share, and to come up with a least restrictive parenting plan that allows each of you to exercise your full and equal rights in a manner that doesn’t restrict the other parent’s full and equal rights anymore than can be proven necessary. And that’s essentially least restrictive means, equal 50/50 with some limitations on what a parent can do unilaterally. For instance you can’t go give your young daughter a breast job unilaterally, right. You can’t go have elective surgery unilaterally. Both parents have a right to be a part of that decision, and both parents have a right to object to that and ask the court to prevent that kind of activity if something like that happens. But in general, you both have the exact same rights, the exact same ability to exercise those rights, same time, same quality, same opportunity – least restrictive means.

So always remember when they pull this garbage, you did not invite the court into your life , you need to object to this and you need to make your attorney object to it. Say absolutely, “I absolutely did not invite the court into my private life. My privacy is protected through the Fourth and the 14th amendment.” Your relationship with your child, the privacy of your parent child relationship is protected by the fourth and 14th amendment. And you are not inviting the court into that intimate relationship. What you are telling the court is “butt out of my relationship, I’m a fit parent give me my equal rights in a least restrictive parenting plan and go no further than that because you have no authority to go further than that.”

So that’s my rant tonight and thank you doctor Phil and I will write him a letter and ask him to stop saying that garbage on TV because it’s pure and utter garbage, right. You do not invite the Court into your private life just because you go to court. You go to court to protect your rights. That’s the only reason you ever go to court is to protect your rights. That’s the court’s only purpose. And I didn’t say this Chief Justice John Marshall, our most famous Chief Justice ever is the one who said this, and the Supreme Court has reiterated it in case law, all right, so that’s not my viewpoint, that’s not my opinion, that is the law of the land. And you need to object and you need to make it clear to your court that they don’t get to do that.

Thank you and goodnight.

 

 

DISCLAIMER: Ron B Palmer is a constitutional expert. He is not an attorney, does not practice law, and is not a substitute for an attorney. We are required by the state BAR and state law to tell you to seek an attorney’s advice.