Is Time with Your Child an Entitlement or a Right?
Q:Didn’t the father have several hearings already? Didn’t he already receive due process?
A:This is what the Michigan Supreme Court justices asked the defense attorney when he was arguing that the father in "In Re Sanders" did not receive due process. And this is what the trial courts and probably even your attorney would argue with you if you just went in and said that you didn’t receive due process.
Just having hearings does not mean that you have received Due Process.
This is why you need to know that there are different types of due process. We have found that when you start to understand how someone looks at something, you can identify the problem and apply the proper solution. This is the same when you are dealing with the Court and others involved in the process.
First let’s look at some rudimentary basics to help you get to the point of where due process might be at in the trial Court’s mind right now.
The States look at your rights to your child as divided between, rights, duties, and privileges. (We are not saying that this should be how they look at it, but this is reality right now.) Your time with your child gets put into the privilege category. We disagree with it being put in this category and here is why.
Privileges get more latitude from the State for using looser standards. This means that you will receive a lowered form of due process. You want the kind that protects a fundamental right not the kind that protects a privilege. 1st amendment is a fundamental right protected at one of the highest levels. Not all of your parental rights are protected at this high level even at the U.S. Supreme Court level. Let’s not get sidetracked here though.
Back to the privilege category. States can decide how they want to handle privileges. In other words, they can act however they wish to act.
There is another part to this. You probably knew there was going to be another layer didn’t you? The Court should also be asking then whether or not the State has created a dependency of you on relations with the Court. And if they have then have they created an “entitlement?”
You will see many cases that claim they have an entitlement, some of these are with welfare recipients and other cases with disability applicants, etc.
Q:We are not saying that fit parents fall into this same category of entitlement. Which is why the Court has to apply their rules of Due Process according to a set of rules created in a case called Matthews v. Eldridge. The three things that they look at to determine what kind of due process is due. This is called the Eldridge Test: 1. What is the private interest that will be affected; 2. What is the risk of erroneous deprivation; and 3. What is the Government’s interest?
A:So if the State has created statutes that claim that your “time” with your child is a privilege, they have essentially created an “entitlement” regarding time with your child. Then they determine how much time based on this theory.
Okay, Whoa! Hang on a second. This is where the Court and the legislators have taken the wrong track. This kind of thinking has created what I call family court tunnel vision where “time” with your child is considered a privilege that has been turned into a supposed entitlement that can be treated any way the Court deems proper. And then wallah, you now have the justification for continuing to apply whatever doctrine the Court and legislators decide is right. And in most States you have the Best Interest of the Child Doctrine as discussed in the post before this one called: “How to Argue to the Court to Abolish the Best Interest of the Child Doctrine.”
Time with your child is not a privilege but a right “indispensable to the dignity and happiness of a free man.” It is a right necessary for you to develop your child and convey your beliefs, values, and morals. It is a fundamental right of such great importance that you need to demand that it receive the highest level of Due Process.
Hold the Courts to the Eldridge test above and keep "time" with your child positioned with the Court as an inalienable fundamental right that can only be interfered with using the least restrictive means and minimum equally applicable with the other parent.
Then you can move onto the next prong the Court will throw at you.
We will get into the difference between a deprivation and a termination next
Check back here tomorrow for some more tools!
Read our book for how to develop your arguments and for citations of specific cases that you can use in your arguments to the court when you are arguing for the proper protection of your family rights.
[CLICK HERE to get the Parental Rights book “NOT in The Child’s Best Interest.]
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Fix Family Courts Editorial Team
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Co-authors: “Not in the Child's Best Interest” & “Protecting Parent-Child Bonds: 28th Amendment”