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July 16, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

According to the analysis by three lawyers in their article for The Nebraska Lawyer, the best interests of the child rule violates three constitutional mandates – substantive and procedural due process and the equal protection of the law.  Given that, how should courts proceed to avoid rulings that violate litigants’ constitutional rights?  In other words, is there a constitutional alternative to the current practice?

There is.

Judicial decisions regarding legal custody and parenting time implicate fundamental Constitutional rights. As a result, these decisions must be narrowly tailored and must use the least restrictive means available. This means the judge must protect each parent’s Constitutional rights to the greatest extent possible, as well as the child’s corollary right to a meaningful relationship with each parent.

Constitutional compliance requires trial courts to start every case from a position of joint legal custody and equal parenting time.

In doing so, courts will be doing what the Constitution requires of them, i.e. tailoring parenting time decisions as narrowly as possible to avoid damage to a parent’s – or a child’s – rights.  Only joint custody and equal parenting time can meet that requirement.

So what about situations in which equal or nearly equal time with each parent is not in a child’s interests?  What’s a judge to do?

Decisions cannot rest on personal preferences of the judge or on gender stereotypes. Any deviations from joint legal custody and equal parenting time must be achieved by the least restrictive means available.

The requirement that evidence be “clear and convincing” in order to rebut a legal presumption (in this case, the presumption of joint custody and equal parenting time) is the second highest standard in American law, the “beyond reasonable doubt” standard being the highest.  Parental rights having been long recognized as fundamental and among the most important in American jurisprudence, no lower standard can be possible.

Of course, sometimes equal parenting time isn’t just unwise, it’s impossible.  Such a case would occur when parents live far apart.

The essential new approach also means trial courts should maximize the parenting time of both parents.  In an ideal world, this would mean a 50/50 division of parenting time but life is not always so easy. In situations where the parents live sufficiently far apart that an equal division of time is unworkable, the trial court could grant the parent with whom the children do not live during the school year a disproportionate number of school holidays and summer parenting days to compensate for the unequal division of time during the school-year. The court could also order that the child live certain school years with one parent and other school years with the other, as has been successful in many cases. For example, a child could live with the mother for elementary school and the father for middle and high school. This also means the pre-separation roles played by each parent are generally not relevant to their future roles under the parenting plan.

That last of course is all to the good.  The idea that parents’ roles pre-divorce should govern their roles post-divorce has never made sense.  The simple fact is that their children early on formed attachments to both parents, the disruption of which can be damaging to the kids’ psyches.  It doesn’t matter to children that Mom stayed home and Dad provided the family’s daily bread.  They need meaningful relationships with both.  Courts should not stand in the way of parents’ satisfaction of that all-important need.

Further, state appellate courts must stop giving deference to the orders of trial courts.  Doing so is not what the Constitution requires.  It requires that such orders be strictly scrutinized when fundamental rights are challenged on constitutional bases. That is the very opposite of deference.

The authors end by endorsing the following statement by Texas Appellate Judge David Puryear:

I write separately to express my belief that the standards currently used in making and reviewing orders that have the effect of limiting a parent’s access to his or her children do not reflect the legislative mandate regarding parental access, nor do they adequately respect the scope of the liberty interest enjoyed by a parent in rearing his or her own children. Because of the gravity of the constitutional rights and interests at stake in such proceedings, and because the current standard is based upon outdated notions of parenting that predate the family code and run counter to the legislature’s stated policy concerning children’s best interests, trial courts should justify deviation from maximum feasible time with both parents by clear and convincing evidence and make factual findings, and appellate courts should carefully review those findings. …

Despite the United States Supreme Court’s determination to subject infringement upon such fundamental rights to strict scrutiny and of our own legislature’s mandate to preserve and foster parent-child relationships, … courts have developed a jurisprudence under which trial court decisions severely curtailing that relationship stand absent an abuse of discretion. Considering the importance of and the risk to the rights at issue and the legislature’s clear mandates that courts take measures to protect this most sacred of relationships, I believe we need to carefully re-examine the standards by which decisions that limit a parent’s access to or possession of a child are made and reviewed.

Lawyers must begin scrutinizing their cases for the best fact pattern possible and making exactly the arguments made by the Nebraska Lawyer article.  Supreme Court jurisprudence in the areas outlined makes clear that current laws and practices violate the dictates of the U.S. Constitution.  It is high time they were brought into line with it.  As I said yesterday, doing so would not only agree with the Constitution, but with the overwhelming weight of social science on children’s well-being as it relates to custody and parenting time following divorce.

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