DAILY TOOL: Do states have a Conflict of Interest in Child Custody?

TOOL OF THE DAY: Conflicts of Interest – The State is a Party

CATEGORY: Family Law Caselaw

This caselaw counters the BS about the state not being a party in divorce or custody issues.

The simple fact that the state asserts an interest in deciding what is in a child’s best interest makes the state a party. The state is not acting as an impartial mediator but is asserting an affirmative interest in being a party to the dispute. The best interests standard in fact deprives the court of its impartiality and makes it a party on the side of the child where the child can’t even be a party to the divorce action.

792 Mitchell v. W.T. Grant Co., 416 U.S. at 615-18 (1974) and at 623 (Justice Powell concurring). And see Arnett v. Kennedy, 416 U.S. 134, 188 (1974) (Justice White concurring in part and dissenting in part). Efforts to litigate challenges to seizures in actions involving two private parties may be thwarted by findings of “no state action,” but there often is sufficient participation by state officials in transferring possession of property to constitute state action and implicate due process. Compare Flagg Brothers v. Brooks, 436 U.S. 149 (1978) (no state action in ware-houseman’s sale of goods for nonpayment of storage, as authorized by state law), with Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (state officials’ joint participation with private party in effecting prejudgment attachment of property); and Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (probate court was sufficiently involved with actions activating time bar in “nonclaim” statute).

When the state claims that they determine the best interest of the child when there are two fit parents, let them know that their very involvement implicates due process as in Arnett v. Kennedy above. Ask for the proper due process and the tests that will be used to be decided in your pre-trial hearing. And we are talking about tests like the Eldridge test. If you haven’t read cases with that in it yet, use the key word Eldride on scholar.google.com and start reading how the appellate courts use it.

There is also a conflict of interest between the state and the safety of a child as well. In summary, the state has an interest in the safety of a child. The child has a right to reach the age of majority. This places the state in a precarious position where they see parent’s rights as being in conflict with the child’s rights. This causes the state to try to errr on the side of caution in most child custody cases. However, they must not cross the line of violating your fundamental rights to do so. And they need to start understanding that when they violate your fundamental rights without using the proper due process, they are also violating the child’s rights.

If the state believes that you are doing something that will cause the child imminent danger and the child will not have the opportunity to reach the age of majority, they can trigger their parens patriae authority. They have a legitimate interest. They, meaning the state, regardless must prove this legitimate state interest before they exercise their power to interfere.