Justice on Parental Rights

A Parent’s Constitutional Rights

A parent’s right to the care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution.

In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489

…Except in Family Court.

Many parents who are reduced to visitors in their children’s lives by having their parenting time greatly reduced. Family Court, has, for decades, caused countless families system induced trauma by trouncing on individual’s rights to due process and fundamental parental liberties. If you knew that asking for a divorce from a spouse is the same as giving the State permission to invade the privacy of your family and take away your rights by taking control of your children, would you proceed? You might hesitate and then say, “But, I’m a United States citizen. The Courts are here to protect my rights.” There are legions of parents who can tell you that this is not true in the case of Family Court. We have a broken system that generates an estimated 40-100 Billion dollars of revenue for the professionals who run it. Not a surprise that those professionals do not want to change this process as they would lose lots of money litigating the battles that ensue when one parent is threatened with losing valuable time with their children.

Family Court is notorious for simply ignoring our constitutionally protected parenting rights. Family Courts can and do strip parents of their right to parent their children and be fully involved in their children’s lives without due process. This happens because we are bullied into thinking that family court has the authority to order custody and placement based on little to no real knowledge of your children or family. Knowledge that is gathered by court professionals (Guardians Ad Litem) who typically have no mental health background and little to no training in domestic violence. Parents are routinely stripped of equal parenting time and forced to become visitors in their own children’s lives. Unbeknownst to most people who are going through divorce in our Family Court system, unless you have been proven to be an unfit parent and a clear and present danger to your child, the court cannot order you to accept an agreement placement or custody arrangement that takes away your equal parenting time. However, parents are often “tricked” and manipulated into signing custody and placement agreements that they do not agree with it at all.

Advice: Never sign any agreement, temporary or otherwise unless it is an arrangement that you truly want as a parent. Not even a “temporary” agreement as these very often become permanent agreements. Many attorneys tell their clients to sign a temporary agreement and not to worry as it is only temporary. Temporary sounds short term but these can go on for years as your case lingers in Family Court. Judges tend to make temporary agreements into permanent ones if they are told that the agreement is “working well” per the lawyers and Guardian Ad Litem/Custody Evaluator who may be assigned to your case.

Family Courts should be requiring proof why either parent’s care or custody rights should be limited and why parenting time (control) should not be split exactly 50/50. This proof does not include the other parent’s opinions and accusations about your parenting abilities. That is unfounded noise that your lawyer should address and keep outside of the courtroom. Divorce is NOT an opportunity for one parent to make criminal charges in the absence of criminal Due Process standards. For the Family Court to order anything other than a 50/50 split without a finding of harm or unfitness requires the court to assume that the child is a creature of the state and that parents do not have any fundamental rights. Fit parents are the best people to determine what is in their own child’s best interest. In Family Court, judges have been allowed to decide what “the best interests of the child” means and they can then trump up a legal sounding justification to their decision. Parents have the legal authority to make those decisions, not the Divorce Court. Nothing in the law requires parents to be perfect parents or even to meet the personal standards of the judge in their case. Family or Divorce Courts are only supposed to intervene in parenting agreements in an administrative capacity. The State has parens patriae (meaning parent of the nation) interest in setting minimum standards of care and being the parent of LAST RESORT only when a fit parent is unavailable.

Advice: As a parent who wishes to maintain your parenting rights, you must declare in your pleadings, motions, and orally, that you have the right to care for, have custody over, and to have control over your child. This must be done from the beginning of your case by your lawyer so that if there is a need to go to a higher court to argue for your parenting rights, the higher court will see that the state court ignored your assertion of your rights and requests for equal treatment as a fit parent.

In the United States Supreme Court’s view, the state registers “no gains toward its stated goals [of protecting children] when it separates a fit parent from the custody of his children.” Stanley, 405 U.S. at 652. (1972)

There are many false assumptions that drive the behavior of judges and other professionals in the Family Court System. A few of those assumptions are that the child must have only one home, there must be a primary parent, and that the Court must protect the status quo- i.e. keep the child’s life post-divorce should be the same as it was pre-divorce. All of these ideas assume that the importance of keeping the child in equal contact and in healthy ongoing relationships with both parents is not as important a consideration. When one parent has restricted time with their child, the child loses the benefit, strength, and emotional support of the other parent.

Lastly, the Supreme Court has said that Parental Rights attach to the individual not the marriage. (Eisenstadt, Sheriff v. Baird, (1972) The Supreme Court has said that Parental Rights are the same for fathers and mothers (Stanley v. Illinois, 405 US 645-Supreme Court 1972) and for married and unmarried and single people alike. (Eisenstadt v. Baird, 405 US 438-Supreme Court 1972) Getting a divorce should not affect your rights to parent your own children.

Divorce is NOT an opportunity for the Court to deny either parent or the child of their First Amendment rights.

Advice: If you are a parent going through divorce, you must assert your rights early on and use wording in your verbal and written communications with the Court that shows that you know your fundamental rights as a parent This enables an individual who must later appeal their case to a higher court to show that they did, indeed, ask that the State Court respect their constitutional rights. Know your rights as a parent and make sure that your lawyer advocates for YOU and your children at every step of your case.

Colleen Honquest, Certified Divorce Coach, CDC®
Divorce Coalition and See Dick and Jane Get Divorced

References

For your reference, read the following case law conclusions to motivate you to stand up for your rights.

  • Parent’s interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584, (1980).
  • No bond is more precious, and none should be more zealously protected by the law as the bond between parent and child.” Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).
  • The Court stressed, “the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection.” A parent’s interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).
  • The Court stressed, “the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection.” A parent’s interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).
  • One of the most precious rights possessed by parents is the right to raise their children free of government interference. That right, “more precious than mere property rights,” is a liberty interest, protected by the substantive and procedural Due Process Clauses of the Fourteenth Amendment. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

 

error

2 thoughts on “A Parent’s Constitutional Rights”

    1. Colleen Honquest

      Hello,
      Thank you for your comment. I’d like to post more on this subject. It requires more research and education, on my part! Thank you for reading.

Leave a Comment

Your email address will not be published. Required fields are marked *