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July 15, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The good sense and legal rectitude of the article in the Nebraska Lawyer attacking the best interests of the child rule in custody cases continues. Its authors offer a short section on equal protection as a possible way to correct child custody and parenting time orders. It then describes the implications for the future of the law on those issues and prescribes a framework for judges in which to issue orders that pass constitutional muster.

The Equal Protection Clause requires states to behave in ways that don’t discriminate inappropriately between people of different races, sexes, religions, etc. Needless to say, family courts routinely place their thumb on the mother’s side of the scale in deciding matters of custody, parenting time, child support and the like. Indeed, that practice has staunchly resisted all efforts at change. In 1993, the U.S. Census Bureau reported that about 84% of custodial parents were mothers. By 2013, the number was about 82%, i.e. no statistical difference. The survey of Nebraska family court decisions indicated that mothers receive sole or primary custody about five times as often as do fathers.

Many surveys of judges show conscious gender bias in how they decide cases. “A study conducted in 2004 found that although the ‘tender years doctrine’ had been abolished many years earlier, a majority of Indiana family court judges still supported it and decided cases coming before them consistently with it. A survey of judges in Alabama, Louisiana, Mississippi and Tennessee found a clear preference among judges for maternal custody in general.”

That, and much more information (such as the survey of custody outcomes in North Dakota) strongly suggest family court judges are routinely violating the Equal Protection Clause.

Under the Equal Protection Clause, gender classifications are subject to intermediate scrutiny, which means they must serve important governmental objectives and use means that are substantially related to the achievement of those objectives.

Needless to say, the government can have no legitimate interest in sidelining fathers in their children’s lives or burdening mothers with so much child care that they’re unable to earn an adequate living.

As the U.S. Supreme Court held in one of its rare family law cases, gender classifications “cannot be validated on the basis of the State’s preference for an allocation of family responsibilities under which the wife plays a dependent role. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.”

At this point, the article ends its inquiry into the possible legal attacks on the BIC rule and family court practices. It does so because it confined itself to constitutional challenges, but there is another way to attack the bias that reigns in family courts – U.S. Civil Rights law. That law provides a civil cause of action against anyone who “under color of law” deprives another person of his/her constitutional rights. Family courts do exactly that every day. Yes, judges are likely immune from civil liability for actions taken on the bench. But states may not be. If they follow customs or practices that result in the deprivation of constitutional rights, they may be liable and, from where I sit, the failure (nay, the refusal) to properly educate judges on the science supporting shared parenting may give rise to liability.

That said, the authors go on to detail some of the practical results arising from the use of the BIC rule and its fatal vagueness.

The “best interests” standard has produced perverse results. It often thrusts two, fit parents into a cage fight, awarding custody -- and the financial benefits that come with it -- to the parent who best destroys the other. The system likewise incentivizes attorneys to engage in conduct that is detrimental to the relationship of the child’s parents and harmful to the child.

Many family courts have devolved from courts of law into arenas where attorneys too often fuel discord and encourage parents to air their subjective – and often irrelevant -- opinions about the other parent. Nothing could be further from the actual “best interests” of the child.”

Indeed. The authors capture the palpable irony of a rule called the “best interests of the child” that so damages those very interests. Encouraging parents to fight over a child whom they both love by offering each the tantalizing reward of sole or primary custody and then giving one or the other that sole or primary custody while marginalizing the other is the very definition of acting contrary to what’s best for the child. It’s what courts do every day and it needs to stop. That such a practice is so at odds with long-existing constitutional law is grounds for rejoicing. The law says the BIC cannot stand; science says it’s being misapplied. The two together point to a single outcome that the authors describe.

I’ll get into that next time.

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