Family Law Reference for Parents
This is the first update to a paper written as a guide for parents and legal professionals on family law. Primarily it is the words of the judges themselves, with some commentary to help explain concepts. Upon updating it became so complicated that it needed to be divided into two parts, and this is now the introductory one. If you wish to learn in more depth, this documents big brother (with full case citations) is available to officers of Childs Best Interest, or to judges and state attorney generals when they send a request on their letterhead to: 357 Dove Valley Collierville, TN 38017.
The relation between family and constitutional law needs to be clearly understood. Constitutional law has “bright lines” that identify areas where the state cannot tread. As of today all states’ family law consists of a jumble of rules and practices, many of which have little to no relation to these bright lines. The ensuing disorder allows judges great and improper discretion.
As I update the original paper, and so to with writing the original, no help was provided from legal professionals. We told hundreds of lawyers, judges, appellate justices, law school professors, state representatives and senators, and attorney generals about the problems in family law. None attempted to refute or add to the information. On a better note, many good rulings have recently been released by the Tennessee Middle and Eastern Section Appellate Courts. Nevertheless, it is clear today there is total failure in family law, and the legal profession in general.
Most of the research and development fell to me, with others providing real and useful input. Don, Chuck, and Dennis, of Ohio PACE, Mike “MD/JD” in California, Murray in Virginia, Karen in Alabama, members of Childs Best Interest across the U.S., and shared parenting advocates who acted as sounding boards and provided assistance in other small or large ways. Also help from the kind student librarians at the University of Memphis Law School Library was very useful and appreciated.
Today in most family law cases attorneys are not raising a constitutional shield to protect their clients. And when they fail to do that, a very cruel thing happens. Not only are one or both parent’s ability to parent their child indefinitely suspended with the state taking permanent jurisdiction of their child, but in legal terminology they will be considered to have voluntarily waived their right to parent their child! That’s pretty harsh to say a parent has voluntarily given this up, when it was only the attorney who failed to raise the constitutional arguments, but that’s the legal standard. If you are a parent not in an intact married relationship, or out of one and haven’t been designated the primary caregiver, somewhere along the line you surrendered your right to parent your child.
The following pages are to help all parents understand their rights in relation to raising their children. Having this knowledge will allow you to defend yourself and your child if ever required.
This document may be freely reproduced, and if doing so please credit the author. If you are in an actual case, please remember this information is not legal advice. Every case is unique and must be tailored accordingly by a litigant acting as their own attorney, or an actual one.
Section 1 Controlling Law
Sections of the Constitutions where parental rights derive
The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment. Santosky v. Kramer United States Supreme Court (1982)
The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by First, Fifth, Ninth, and Fourteenth Amendments. Doe v. Irwin United States District Court of Michigan (1977)
Tennessee’s historically strong protection of parental rights and the reasoning of federal constitutional cases convince us that parental rights constitute a fundamental liberty interest under Article I, Section 8 of the Tennessee Constitution Hawk v. Hawk Tennessee Supreme Court (1993)
Parents have comparable interests under our state constitutional protections of liberty and privacy rights. “The right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.” Brooks v. Parkerson Georgia Supreme Court (1995)
A parent’s constitutionally protected right to rear his or her children without state interference, has been recognized as a fundamental “liberty” interest protect by the Fourteenth Amendment and also as a fundamental right derived from the privacy rights inherent in the constitution. In re Smith Washington Supreme Court (1998)
[A] parent’s right to the care, custody, and control of his or her children is a fundamental right protected by article I, section 8 of the Iowa Constitution. Santi v. Santi Iowa Supreme Court (2001)
Parental Autonomy is the condition that exists when a child is not subject to a judge’s jurisdiction
Parental autonomy is grounded in the assumption that natural parents raise their own children in nuclear families, consisting of a married couple and their children. The family has been seen as the “basic building block” of society. Parental autonomy strengthens the family and the entire social fabric “by encouraging parents to raise their children in the best way they can by making them secure in the knowledge that neither the state nor outside individuals may ordinarily intervene.” In re Smith Washington Supreme Court (1998) Note 1: We are aware of 1 parent outside of an intact married family receiving parental autonomy via a consent order. Wickman v. Dixon No.DR-96-1360.01C p.489. Note 2: Presumably parental autonomy exists in adoptive families with either one or two parents, and in natural parents who have sole custody with the other parent’s rights terminated, so it is not tied to married parents.
Parental Rights are Fundamental Liberty Interests
The liberty interest at issue in this case – – the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court Troxel v. Granville United States Supreme Court (2000)
It is well-settled that parents have a liberty interest in the custody of their children. Hence, any deprivation of that interest by the state must be accomplished by procedures meeting the requirements of due process.” Hooks v. Hooks United States Court of Appeals (1985)
Indeed, the right to rear one’s children is so firmly rooted in our culture that the United States Supreme Court has held it to be a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution. Hawk v. Hawk Tennessee Supreme Court (1993)
Parental Rights also contain Fundamental Privacy Interests
“[p]rivate realm of family life which the state cannot enter” Prince v. Massachusetts United States Supreme Court (1944)
Throughout this century, this Court also has held that the fundamental right to privacy protects citizens against governmental intrusion in such intimate family matters as procreation, child-rearing, marriage, and contraceptive choice. Planned Parenthood of Southeastern Pennsylvania v. Casey United States Supreme Court (1992)
Statutes and rulings that infringe upon fundamental rights are presumptively unconstitutional, and a substantial burden rests on the state, not citizen, to prove its case
It is well settled that, quite apart from the guarantee of equal protection, if a law “impinges upon a fundamental right explicitly or implicitly secured by the Constitution it is presumptively unconstitutional.” Harris v. McRae United States Supreme Court (1980)
The application of strict scrutiny is not flexible at all, and I can find no case in this state where application of this standard has resulted in upholding the challenged law. With the adoption of strict scrutiny, this Court has forced the State of Tennessee into an “all-or-nothing” scenario, where only the most impeccably drafted legislation withstands the slightest possibility of darkening the constitutional doorway. Planned Parenthood of Middle Tennessee v. Sundquist Tennessee Supreme Court (2000) Note: This citation goes beyond saying infringements on fundamental parental rights are presumptively unconstitutional, and clearly states essentially no legislative restrictions on parents will be upheld.
If the classification affects fundamental rights however, there is no presumption of constitutionality, and the classification will be sustained only if justified by a compelling state interest. Coles v. Ryan Illinois Appeals Court (1980)
The Fourteenth Amendment guarantees Due Process and Equal Protection to all
“[n]o state shall.deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” U.S. Const. Amend. XIV, � 1
The state must meet a threshold prior to infringing upon fundamental rights
First, according to the Washington Supreme Court, the Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child. Section 26.10.160(3) fails that standard because it requires no threshold showing of harm. Troxel v. Granville United States Supreme Court (2000)
The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in the State and Federal Constitutions” In re J.P. Utah Supreme Court (1982)
Likewise, following the analysis of the Tennessee Supreme Court in interpreting its state statutes and constitutions, we find that implicit in Georgia cases, statutory and constitutional law is that state interference with parental rights to custody and control of children is permissible only where the health or welfare of a child is threatened. Brooks v. Parkerson Georgia Supreme Court (1995)
For the constitutional requirement to be satisfied, before visitation can be ordered over the objection of the child’s parents, a court must find an actual harm to the child’s health or welfare without such visitation. Williams v. Williams Virginia Supreme Court (1998)
Examples of Tennessee’s threshold standard
In 1993 in a grandparent visitation case the Tennessee Supreme Court held, “we believe that when no substantial harm threatens a child’s welfare, the state lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit.” Hawk v. Hawk Tennessee Supreme Court (1993)
In a 1995 parent vs. third party custody case, “Therefore, in a contest between a parent and a non-parent, a parent cannot be deprived of the custody of a child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then may a court engage in a “best interest of the child” evaluation in making a determination of custody.” In re Adoption of a Female Child Tennessee Supreme Court (1995)
In a 1999 parental rights termination case, “Therefore Bond stands for the proposition that a natural parent may only be deprived of custody of a child upon a showing of substantial harm to the child.” In re Askew Tennessee (1999)
A July 2001 parental abuse case, “In furtherance of that goal, and in the best interests of Pamela due to a threat of substantial harm, the juvenile court ordered a termination of visitation.” “Although parents’ have a right to raise, care for and have the companionship of their child under both Tennessee and U.S. Constitutions, these rights can be infringed upon if the court finds substantial harm threatens a child’s welfare.” “The court made clear that there must be a threshold finding of harm before the state can intervene in a parent-child relationship; however, once this finding of harm to the child is made, a determination of custody is made based on the “best interest of the child”. This threshold finding of substantial harm was made when Pamela was found by the juvenile court to be abused, dependent, and neglected and removed form the custody of her parents and placed in foster care.” DCS v. Cox Tennessee Appeals Court (2001)
An August 2001 divorced parent v. parent case, “We believe the parents’ constitutional right of privacy as found by our Supreme Court in Hawk is applicable here where we have two fit parents, even if those parents are now divorced. Additionally, we believe the constitutional rights under the Second Amendment of the United States Constitution as well as Article I, Section 26 of the Tennessee Constitution are worthy of the same protection as is the constitutional right to privacy discussed in Hawk. Accordingly, the Trial Court could not restrict Father’s otherwise lawful possession of a firearm absent a showing of risk of substantial harm to the child. The Trial Court made no such finding.” Stillwell v. Stillwell Tennessee Appeals Court (2001) Note: This may be the first and only U.S. case where a harm standard was applied to divorced parents.
A standardized threshold (bright-line rule) is needed
Many threshold terms are in use, and the best seems to be “severe harm”. It has a proper sense of urgency which strikes a balance between too low of threshold terms such as “harm” which implies virtually no barrier, and too high of ones like “serious danger” implying an impossible hurdle. When combined with the designation as a “bright line rule” that cuts cleanly and clearly between the state and parents in all circumstances, a trial judge will have no problem properly applying family law to any circumstance that he or she faces.
The state may not apply the best interest of the child standard nor infringe in the parent-child relationship prior to proving that a child is in severe harm
We too, agree that neither the legislature nor a court may properly intervene in parenting decisions absent significant harm to the child from those decisions. In so holding, we approve the logic of Santosky v. Kramer which applied a two-step process to child neglect cases leading to foster family placement. In Santosky, the Supreme Court approved New York’s bifurcated proceeding requiring the state first to establish paternal unfitness before placing a child in foster care. This procedure assures parents that a “best interest of the child” analysis will not pit them against potential foster parents; rather, the state consider a child’s “best interests” until the natural parents have been declared unfit. Hawk v Hawk Tennessee Supreme Court (1993) Note: In a case where parental rights are infringed to a much lesser degree than in a parent v. parent custody case, the Tennessee Supreme Court clearly states parents must be declared “unfit” prior to “best interests” being applied.
The proof in this case supports the trial court’s finding that the father is not unfit to have custody, and that he has developed a substantial relationship with the child. It shows that the child is in no danger of substantial harm. The father, therefore, has a fundamental interest in parenting the child which precludes a “best interest” determination of custody. Petrosky v. Keene Tennessee Supreme Court (1995)
If the threshold of severe harm is found, any orders issued must be so as no less restrictive remedies can be contemplated
To satisfy strict scrutiny, the State must show that a statute furthers a compelling state interest by the least restrictive means practically available. Bernal v. Fainter United States Supreme Court (1984)
Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. City of Boerne v. Flores United States Supreme Court (1997)
T.C.A. � 36-6-101(a)(1) “In a suit for annulment, divorce or separate maintenance, where the custody of a minor child or minor children is a question, the court may,.award the care, custody and control of such child or children.as the welfare and interest of the child or children may demand” Note: This is Tennessee’s custody statute for divorcing parents. No harm threshold is present, nor any requirement for narrow tailoring. This statute is facially unconstitutional on two grounds.
A statute must be followed as written
When “the language contained within the four corners of a statute is plain, clear and unambiguous, the duty of the courts is simple and obvious, ‘to say sic lex scripta, and obey it.” Hawks v. City of Westmoreland Tennessee Supreme Court (1997)
Thus, a court must “presume that the legislature says in a statute what it means and means in a statute what it says there.” A statute, therefore, must be construed as it is written. Berryhill v. Rhodes Tennessee Supreme Court (2000)
T.C.A. � 36-6-301 After making an award of custody, the court shall, upon request of the non-custodial parent, grant such rights of visitation as will enable the child and the non-custodial parent to maintain a parent-child relationship. Note: A reasonable definition of the clause “enable the child and the non-custodial parent to maintain a parent-child relationship” is two to three overnights per week. Tennessee courts routinely allow moveaways, long stretches (weeks/months/years) where no parenting occurs, and other restrictions such as every other weekend visitation. All of these circumstances violate their own case law, “the language contained within the four corners of a statute is plain, clear and unambiguous, the duty of the courts is simple and obvious, ‘to say sic lex scripta, and obey it.”, and can be challenged on this basis.
Parental rights are identical between natural parents, without regard to gender or marital status
The Constitution protects “the interest of a parent in the companionship, care, custody, and management of his or her children.” Stanley v. Illinois United States Supreme Court (1972)
“The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” Johnson v. Calvert California Supreme Court (1993)
The Nales’ position that this Court in Hawk limited the protection of parental rights to an “intact, nuclear family with fit parents” is untenable. Nale v. Robertson Tennessee Supreme Court (1994)
It is clear to this Court that both parents love their children. What concerns this Court most, however, and was apparently a concern to the trial court, is Wife’s blatant attempt to alienate the affections of the children from their father. When loved by both parents, children should be taught to love and respect each parent equally. The reciprocation, in turn, will garner self-respect and a positive self image in the children. The record in this case lends absolutely no reason as to why the children should not be encouraged to respect and love their father. We do not find the record to show that Wife has supported such a healthy relationship between parent and child. Although Wife testified otherwise, her actions speak loud and clear. Varley v. Varley Tennessee Appeals Court (1996)
Effect on the parent-child relationship by being apart
Between parent and child, there is no monster like separateness. It can grow even faster than children, shutting first the heart, then the home, then history. Brooks v. Parkerson Georgia Supreme Court (1995)
Friendly Parent Doctrine
The Court stressed, the parent-child relationship “undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley v. Illinois United States Supreme Court (1972)
Custody and visitation arrangements should promote the development of a healthy relationship between children and both their parents. Solima v. Solima Tennessee Appeals Court (1998)
Parent vs. Third Party Custody
Therefore, in a contest between a parent and a non-parent, a parent cannot be deprived of the custody of a child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then may a court engage in a “best interest of the child” evaluation in making a determination of custody.” In re Adoption of a Female Child Tennessee Supreme Court (1995)
Biological parents have a fundamental liberty interest in the care and custody of their children under both the United States and Tennessee Constitutions. These parental rights are superior to the rights of others and continue without interruption unless a biological parent consents to relinquish them, abandons his or her child, or forfeits his or her parental rights by some conduct that substantially harms the child. O’ Daniel v. Messier Tennessee Appeals Court (1995)
Grandparent/third party visitation
This appeal presents the issue of the constitutionality of Georgia’s “Grandparent Visitation Statute”, OCGA � 19-7-3. We hold that the statute is unconstitutional under both our state and federal constitutions, and reverse the trial court’s order to the contrary. Brooks v. Parkerson Georgia Supreme Court (1995)
Children in state care
Judge Quinones, a Family Court Judge with eight years of experience, described the conditions of detention as follows:
“Then again, Juvenile Center, as much as we might try, is not the most pleasant place in the world. If you put them in detention, you are liable to be exposing these youngsters to all sorts of things. They are liable to be exposed to assault, they are liable to be exposed to sexual assaults. You are taking the risk of putting them together with a youngster that might be much worse than they, possibly might be, and it might have a bad effect in that respect.”
Many other observers of the circumstances of juvenile detention in New York have come to similar conclusions. Schall v. Martin United States Supreme Court (1984)
1st Amendment Protest Guarantees
We have recognized that the First Amendment reflects a “profound national commitment” to the principle that “debate on public issues should be uninhibited, robust, and wide-open,” This has led us to scrutinize carefully any restrictions on public issue picketing. Boos v. Barry United States Supreme Court (1988)
The traditional approach sets forth a bright-line rule: any restriction on speech, the application of which turns on the content of the speech, is a content-based restriction regardless of the motivation that lies behind it. Boos v. Barry United States Supreme Court (1988)
Pro-Se litigant’s pleadings
Pro se litigant’s pleadings should not be held to the same high standards of perfection as lawyers. “Significantly, the Haines case involved a pro se complaint – as does the present case – which requires a less stringent reading than one drafted by a lawyer. Puckett v. Cox United States Court of Appeals (1972)
Section 2 Persuasive Arguments
Thus, apart from constitutional problems of using the best interest of the child standard without a prerequisite showing of harm, the vagueness and subjectivity of such a standard lends itself to an invasion of family privacy which is abhorrent to our current society. Kathleen Bean (1985-86) Grandparent Visitation: Can the Parent Refuse? Note: This statement is equally applicable to all invasions of the parent-child relationship.
The bible advises input from both parents; “Hear, my son, your father’s instruction, and reject not your mother’s teaching;” Proverbs 1:8 Revised Standard Version
Hubin, Donald (1999). Parental Rights and Due Process. University of Utah Journal of Law & Family Studies Volume 1 Number 2, 123-150. Note: The best article on unconstitutionality of family law.
See at: http://www.cohums.ohio-state.edu/philo/people/faculty/hubin.1/Research/P RDP.PDF
See Childs Best Interest website generally for useful information: http://childsbestinterest.org
Section 3 Traps
When a legal action is initiated which involves a child, if a parent is not residing in the same home as the child, he or she will presumptively be considered as the non-custodial parent. The only way to avoid this trap is to not leave the home, or allow your child to be taken out of it.
When hiring an attorney, one of the first things they do is request financial information. This is because they are mentally figuring how much wealth they will be able to transfer to themselves.
At the filing of a legal action involving a child, if a temporary injunction is issued to maintain the status quo (keep the child under the care of one parent), the excluded parent will presumptively be considered as non-custodial. Any pre-trial orders which impede your ability to parent your child can be immediately appealed. If you wait for trial, you will waive your right to later raise these issues.
Pre-trial if a parent consents to pay child support, the judge and both attorneys will take this as a signal that he or she agrees to be the non-custodial parent.
Any consent order a parent agrees to (even if it comes after a contested hearing) cannot be appealed. You do not have to “consent” to anything, even if your attorney says otherwise. Remember, attorneys are officers of the court, and quite possibly friends with the judge and opposing attorney. They are required to zealously represent you, and to uphold the constitution. Expect neither.
Normally an investigation of the parents will be done. This can be anything from a college volunteer working for CASA, an attorney called a Guardian Ad Litem, a private investigator, up to a pediatric psychologist. The job of all these folks is to invade the privacy of your relationship with your child, and transfer as much wealth as possible to themselves. Also you will either be encouraged or mandated to attend counseling, to achieve the same goals. Using the above constitutional citations you can object to any invasion of your privacy and your child’s. If you fail to object, you waive your rights.
At trial your attorney can have a pre-trial brief prepared which carefully identifies the applicable laws and how your case applies to those laws (including of course constitutional law). Very few attorneys will do this. Most will present your case with no reference to any laws whatsoever, and simply allow the judge to rule as he or she wishes.
Also at trial both parents are considered to be voluntarily submitting the question of child custody to the court. Your attorney can assert that you do not want custody of your child decided by the state. If you don’t do this, it will be considered waived for appeal purposes, as will any applicable state and constitutional laws not raised by your attorney in his or her oral arguments.
If you ask that the law be followed in your case, expect intimidation tactics such as your attorney threatening to resign, or being told visitation with your child will be reduced. If any of this happens, request a brochure or other method whereby you can file a complaint with your state board of responsibility against the unlawful attorney. To make a complaint call: 1-800-486-5714
If you receive an unfavorable decision at trial, your attorney can file a motion to reconsider, or a notice of appeal. If you are appealing there are strict time limits on this, which if not followed will cause your case to be thrown out. If you consent to anything at trial, it will not be appeallable.
Appeals are usually taken to a state appellate court, then if needed an application is filed to your state supreme court (they may be called another name). The state supreme court has discretion whether to take your case or not, and they probably won’t take it. If your state supreme court does not give you a favorable ruling, you can appeal properly preserved constitutional questions to the United State Supreme Court, which virtually never takes a family law case. Wherever your case finally stops, it will be considered final.
Section 4 Legal Primer
There are three types of law, constitutional, statutory, and case. Constitutional law is primarily what this paper consists of, it is written by the people, and everyone must follow it. Statutory law is created by your state legislature, and the judges and all citizens must follow it as written. Case law is the judge’s interpretation of how constitutional and statutory law apply to individual cases. Most libraries will have copies of your state constitution, and statutory laws.
Solima v. Solima 7 S.W.3d 30, at 33 (Tenn.App.1998)
Being able to read case citations is very important as this enables you to look up and verify the original. In the above example the “style” of the case is Solima v. Solima, and these of course are the two parties at odds.
The next part 7 S.W.3d 30 tells you the original decision is contained in the “SouthWest” reporters. If you are unable to find them yourself, the law school librarian can show you where they are at. 7 is the volume number, 3d means third edition, and 30 is the page the case begins on. The at 33 is the specific page where the quote you are referring to is at, and (Tenn.App.1998) tells you the court that issued the decision and year it did so. If you see a case citation that has only the year listed without any court, such as (2000), that is a decision from the U.S. Supreme Court. NY or Utah would be a state supreme court, U.S.D.C. is a federal court, and U.S.C.A. is a federal appeals court.
If you are starting from scratch and don’t have a case citation, ask the librarian where the “digests” for your state, or the “Corpus Secundum” are. These allow you to start with a subject, such as “constitutional law”, and look up all of the cases cited in that area.
Parental rights consist of fundamental liberty and privacy interest, which the state can only infringe upon after finding a child is in severe harm, or severe danger of being harmed. You must properly assert your rights at every stage of litigation, or forever waive them, and your ability to parent your child.
As a final note constitutional rights in general, and parental rights in particular, are being regularly eroded. Amendments to the U.S. and state Constitutions must be enacted to reverse this.
Daniel Lee ACFC Associate Director
� Copyright Daniel Lee 2001 CBI Home: http://childsbestinterest.org ACFC Home: http://www.acfc.org/
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