TOOL OF THE DAY: Fitness…Do You Know What the Standard Is?
CATEGORY: Family Law
Fitness of a parent. What is it? If it is not defined well by your State then what else are they supposed to do other than dig into your private business to find something they think makes an undesirable parent, right? This is the excuse you might hear. Well they will probably make you think that you should undergo these tests to prove you are a good parent and to protect yourself. Oh and of course to expose the other parent, right? Well, let’s address this elephant.
Your understanding of fitness could be the difference between you taking on burdens or shifting the burdens onto the other side.
When you think about parental fitness you need to think about innocence in a criminal trial. We all know that we are innocent until proven guilty in a criminal trial and we as Americans would have it no other way. Unfitness is the same as guilt.
When you are found to be an unfit parent the state is saying that you failed to meet the minimum reasonable standard of care for your child. Just like guilt, the state is required to prove that you have failed to meet this minimum standard of care before they can overrule your decisions as a parent. And Yes, even when the other parent goes to court and complains about you. The same standards still apply. The United States Supreme Court states this as a parental presumption. In other words the state must presume all parents are fit until the state proves otherwise.
In a criminal trial, the state cannot force you to prove your innocence. The state must prove that you are actually guilty. Further, the state cannot compel you to testify against yourself to prove you guilty. The parental presumption works in exactly the same way. The state cannot force you to prove your innocence by waiving your Fourth and Fifth Amendment protections to be free from unwarranted search and seizure or to be protected from testifying against yourself. However, this is exactly what most divorce courts do when they compel you to submit to family studies and psychological studies. When they do this they are saying that you have to prove your fitness as a parent and they are clearly and absolutely violating your constitutional rights when they do so.
What is the minimum standard of care? Is it 50% of your income? No. In fact the minimum standard of care cannot be defined in dollar terms until the state has proven that you haven’t met the minimum standard of care. So once again the State has a problem with not defining something specifically again that is equally applicable to all similarly situated people.
The most important element of fitness is that whatever the standard set by the state is that standard cannot be different for married parents and single parents. This comes from one of the most important concepts in American jurisprudence, the concept of “Equal justice under the law.” The state has no legitimate interest in setting a different standard of care for a child based on nothing more than the marital status of the parents. Therefore, the standard the state sets for unfitness absolutely must be the same for all parents married, single, or divorced. This concept is one of the primary ways that we ensure fairness in our judicial system.
Likewise, the process the state uses to deprive divorced parents of their fundamental right to care for their children directly has to be the same process used to deprive married parents. One of the strongest constitutional protections we have is this idea that the process has to be the same for everyone who is similarly situated. The state in divorce tries to make you believe that you are situated differently than married parents just because you are asking to divorce your spouse. They claim that you are asking to break up the family and therefore they have a right to treat you differently. Not so at all.
SCOTUS (Supreme Court of the United States) has clearly said that you cannot treat parents or children differently based on nothing more than the marital status of the child’s parents and that the rights of parents and children cannot depend on marital status.
What you are dealing with is your trial Court is confusing the nuclear family for the constitutionally protected families after the two parents are no longer together. When they decide not to protect your rights to continue to hold your child’s rights in trust equally to the other parent, they have made you and your child second-class citizens. Your child now no longer gets the protection and security to be with both of their parents equally the way they had a right to during the marriage of the parents. (And yes even if the child says they don’t want this equal protection to both parents, the state is still required to protect the child’s relationships to both. The child does not have the right to cut a parent out of their life either – they must be held to the same requirements where their claims against a parent must provide the state with enough to prove that the state can interfere with this right. Otherwise as many of you have experienced, when the State starts giving preference to a parent over the other, they empower alienating behaviors that lead to parental alienation.)
There are at least two forms of constitutionally protected family. The first is the family formed between each parent and their child. The second is the family created between two adults when they get married. The two types of family cannot constitutionally depend on one another. Therefore, the state cannot dissolve the family between you and your child simply because you seek to dissolve the family between you and your spouse.
Many parents confuse a break up with the other parent as a time when they can take advantage of the parenting that they didn’t like during their relationship with them, or treatment that they received from the other parent personally that they didn’t like. We feel that many times a break up tends to inflame the parents and they can display their worst behavior. This is why it is not the time to attack them further or try to focus on their flaws, as long as these are not to the level of unfitness or direct danger to the child.
We believe that this actually should be a time that both parents feel free to form the kind of relationship with their child that perhaps they were being prevented from forming when they were with the other parent. It is not a time when they need continue control or interference from each other. Wouldn’t it be nice if each parent now could bond with their child without the interference and judgment of the other parent?
The thing that helps ensure our freedom is that we don’t allow the state to create sub-groups of people who can be treated less than other people. Your rights cannot be less because you are a woman. Your rights cannot be less because you are Black; and your rights cannot be less because you are a single/divorced parent. And your rights cannot be less because the other parent decides you aren’t the parent they want you to be. You get to be the parent you choose individually and separately.
So the vital protection when it comes to parental fitness is that whatever standard the state makes it must be the same standard used for all parents, not the standard that a judge makes from the bench arbitrarily and variably from court to court, and not the standard that the other parent sets. We can’t tolerate one standard for married parents and another standard for single/divorced parents. And we certainly cannot tolerate parents not being allowed to change their parenting style and relationship with their child as they see fit when they are no longer with the other parent. We cannot tolerate one parent continuing to control the other parent’s life throughout the duration of the childhood of the child.
So while there is considerable room to debate what the statutorily specified standard of unfitness should be, what we cannot debate is having a different standard based on marital status. This single standard is what helps protect all parents because all parents are vested in the definition we ultimately choose. And all children are vested in the benefits and influence that they receive from each of their parents for their development.
Society is vested in the continuation of happy, healthy, financially stable families who can continue to raise happy, healthy, productive future adults.
The best way to continue to address fitness when confronted with this debate is to defer to this standard explained in this post, refer to the case law that we cite in our book, and stick with your decisions. If you decide not to consent to studies and other invasions of your privacy, be prepared to explain these concepts to your attorney and the judge. You are the ultimate decider of what you give in to or not.
Keep coming back to this blog as we help you explore your options and make your decisions on what is right for you and your family. Visit the Family Rights wiki for more tools, information, and resources.
Take Care and see you back here tomorrow!
Read our book 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.]
You can learn more about this and how to reason through your rights and protect your rights in our books and courses. Click at the top on Store and you will find the books and training tabs. The book teaches you your rights and the training courses teach you how to argue them like I demonstrated above.]
Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author
Divorce Solutions and Child Custody Solutions
Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)
Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)
Twitter: https://twitter.com/fixfamilycourts (@fixfamilycourts)
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