DAILY TOOL: Top 2 Things the Court Does to Disadvantage You...

Addressing Presumption 1: The "Tie Breaker" Myth

In order to address number 1, you will need a basic understanding of when you ask the Court to break a tie and when you re-state what the Court is being asked to do. Here is an example. If the two parents are fighting over what school the child goes to, then the Court can break the tie and decide on the school. When the Court is faced with breaking a tie, they want the information on both schools. And if you want the Court to pick the one you like, you of course will use everything you can to make your school look better than the other. This is what so many parents do to each other, thinking that they are asking the judge to choose between one of the parents.

So you might have guessed that my next example of what is not a tie breaker would be when both of the parents are fighting over time with the child. You are not asking the Court to break a tie here. Instead you are asking the judge to apply Equal Protection and protect each parent’s and child’s rights to be together as equally as possible. Be aware that they see this as the parent’s rights are in conflict and therefore they have to pick between each one. And most of the time you are both asking for the same thing, you want the primary. So from that respect it would look like a tie breaker. But only if you both positioned it that way.

So if you want the possibility of the judge looking at it from the perspective of not being a tie breaker but instead one of fundamental rights, you will have to explain that you understand that there is a conflict, and that is that each parent cannot exercise 100% time with the child because of a natural division created by the divorce or separation of the parents. It is physically impossible for both parents to exercise the time with the child at the same time if they are no longer together. Therefore the tie has already been broken by the separation itself.

Okay but you have both parents wanting primary. This is not a tie breaker either because of the nature of the rights being disputed. Time with your child is a fundamental right necessary to be able to directly influence and convey your beliefs, values, and morals. Therefore fundamental rights already have a process that is used when determining how to handle those conflicts. That is strict scrutiny and least restrictive, compelling, and narrowly tailored.

You can suggest that the judge use the Eldridge test in order to determine the proper level of due process to use in the Court. This way you are not the one dictating to the judge, but merely suggesting to the Court a way to settle the matter without disadvantaging the children or either parent.

This way both parents have less to fight over, the Court has a straightforward and simple solution that doesn’t require the parents to bash each other and sling dirt, and the children get to keep their college funds.

Addressing Presumption 2: "Invited the State In"

Now to address number 2, which you have pretty much already laid the foundation for in number 1.

Your pleadings should reflect that you are not inviting the Court into your family relationship to start with. Next your oral argument should also reflect this by stating to the Court that you are simply asking the Court to memorialize your equal rights and time on paper since the two of you are no longer formally exercising the rights together and are no longer in agreement. And you are asking this of the Court because without it the law sees the two parents as being equally entitled to 100% of the rights to the child. There is no division whatsoever in the eyes of the law.

So really you are asking the Court for protection of your rights. You must list what you believe your rights are so that you don’t leave the Court to guess. Use the U.S. Supreme Court opinions for this. They’ve laid that out for you in the cases like Troxel and Stanley. And make sure that you are not ever asking the Court to choose between the two of you. Make it clear that you understand your rights to be separate, equal, and individual.

And if there is a statute that says that a Court can look at this differently. Then you might want to argue that the statute at the least is unconstitutional as applied in your case. It might unconstitutional on its face as well, but you would have to research that more specifically. But being prepared with both is very worth your time. When you understand these two things and you have that ready and put it on the record you have preserved your ability to raise this on appeal if you feel the Court does not apply these properly. Our book listed below covers some of these concepts. Chapter 18 in the book talks about how it would look if the courts were to act constitutionally. This chapter should help you understand these arguments a lot more.