TOOL OF THE DAY: How to Argue to the Court to Abolish the Best Interest of the Child Doctrine.
CATEGORY: Family Law Policy Analysis
We’ve all probably heard about common law. But what is it really? And why does it matter to you?
Today I discuss how to abolish the “Best Interest of the Child Doctrine” from being used in your family court case. (This only applies if you have not been proven unfit or a clear and present danger directly to your child.)
First we have to understand where common law comes from.
Common Law is judge made law. It is “The body of law derived from judicial decisions, rather than from statutes or constitutions.” A common law doctrine is when a multitude of decisions are made over a long period of time.
Does this mean that the Constitution doesn’t apply? Absolutely not! Does this mean that the Constitution doesn’t apply in some courts like the family court? No, it does not. You would refer to Marbury v. Madison for the guiding principle on this one. All courts within the U.S. are subject to the United States Constitution.
Then if this is the case how are the family and domestic courts continuing to apply common law doctrines like “best interest of the child?”
First let’s clarify something, best interest of the child may have started out as common law when there was no guiding principle for a court to sue for deciding between two fit parents in disagreement. No statute to address the situations they were facing, no 14th amendment, and no Supreme court rulings specifically addressing a parent no longer married to the other parent and in dispute with that parent.
In those situations, judges can create law. Essentially when there is no controlling statutory law or other higher law at the time a series of rulings can lead to the creation of a common law doctrine.
Okay so now we have the best interest of the child doctrine. Before this we had the tender years doctrine and before that we had courts defaulting to awarding the children to the father’s. You are probably wondering how did the Best Interest Doctrine get created and continue to exist when the 14th amendment has been around long before this doctrine.
Let’s first look at how did we abolish the other two doctrines? Way before the tender years doctrine, men were generally awarded the children because they were able to earn and provide for the children. Because they provided for the children, they were entitled to the children as well. The women were not allowed to work at that time.
So what changed? Women felt that this was unjust and unfair treatment. They also felt that this harmed the children since they were the nurturers and the fathers were the providers. But how were they going to get help from the courts when there was no law or doctrine that stated the court could award the child to the mother?
The women (it turns out a woman initially) convinced a judge that she required protection as well as the child required protection that only a judge could make by making judge made law. Since there were no laws protecting women and children at that time, the judge was able to create it. After a long series of rulings, this led to the creation of the Tender Years Doctrine.
So as it goes, the Tender Years Doctrine was challenged by fathers. And after many deliberations and showing the court that times had changed and women were able to work now and were not the sole nurturers to the children. The court once again responded to the need for some new policy. (Of course there were more details to it, but this should suffice for our purposes here.)
This brings us to today where parents throughout the United States have been struggling with getting rid of the effects caused by “The Best Interest of the Child Doctrine.” Why might that be? Perhaps because the best interest of the child doctrine has led to more abuses of power and harm to children than anyone ever dreamed.
Originally this doctrine might have been created to rid the Court of gender bias, while also striving to protect the children from their parent’s disagreements. But this doctrine has failed on both accounts. Now the Court can be biased equally if they so choose. And the children are involved regularly by judges, GALs, and other so-called experts of the Court. The best interest of the child policies are disadvantaging all parties.
Many organizations and people try to improve on the elements that the Court uses to determine the best interest of the child. They might think that this will correct the problem. We do not believe that this is the case. In fact, this usually just imposes more expense on the parents and more pressure being placed on the child.
We believe that the argument needs to change now. It’s time to abolish the best interest of the child doctrine.
But how do you do this? And what would you replace it with? When this happens, where do we turn?
We turn to the protection of individual rights and equal protection of the laws. This then is no longer about picking between the parents but instead about applying the rule of law that protects every individual equally (which in turn protects the children) so that we can have fairness in the process, reduced bias and personal beliefs affecting the decisions, and truly have opportunity for justice for all.
So what are judges supposed to do now?
- The judge must examine prior opinions that led to the creation of the common law doctrine. In this case, the best interest of the child doctrine. (This doctrine, by the way, is statutory now in most if not all States. Doctrines can be statutory or made statutory after many rulings have made it a precedent.)
- Next the judge should examine any policies in the State that led to the creation of their best interest doctrine.
- Then the judge should examine the need for the doctrine. This examination should consist of the following:
- What purpose did the policy of the state have?
- Does it still serve the purpose it was originally intended to serve?
- Is there higher law that has passed since the creation of the doctrine? (Even if the doctrine was created after a higher law was passed, the higher law would still apply.)
- Is there a consistency issue when you apply the higher law?
- Does the doctrine need to be abolished to solve the consistency issue?
- Does applying the doctrine to the case before the court violate any higher principles?
- Does the doctrine need to be abolished?
- Does there need to be another layer of examination applied before applying the doctrine? In the case of family law divorces and child custody battles between parents, since the 14th amendment now applies and there is now case law that has created law that is superior to the old common law. Parents have rights superior to the Court until certain conditions have been met. These are proving the parent unfit or that there is direct imminent danger to the child by the parent.
- Is there now a better way to serve this need that the public policy wishes to serve?
During the infancy of the best interest doctrine many things were different. The best interest doctrine at its infancy was believed to be needed at that time to protect parents from being discriminated against and to protect children. At the time, there was no understanding that parents are the first protectors of their children. There was also no understanding that two parents in dispute still got protection of their rights individually. There also was no understanding that children’s rights are held in trust by both parents equally until the parents are proven to be unfit, or clear and present danger, or when there is an exception with one of the child’s rights. There was no understanding that there are some harms that the Court cannot protect the children from…divorce is one of these harms, parents in disagreement is another, and children having two parents equally and living in two homes is one too.
States were not required to apply the rights of the U.S. Constitution to the individuals originally — the U.S. Constitution only applied to the federal government.
Once it was found that this didn’t make any sense for the rights guaranteed in the U.S. Constitution to not apply to the States, the 14th amendment was fought for and passed. Many laws have had to change in order to be in compliance with the application of the 14th amendment to the States.
The family courts have been able to avoid a serious examination and abolishment of the best interest doctrine for so long not just because it is easy to inflame the public when it comes to the safety and welfare of a child, but also because parents have been asking the courts to provide them with relief in the form of reducing the other parent to a visitor (and both parents have been consenting to the judge determining best interest of their child). When parents forfeit their rights to the court and ask for their guidance, there is nothing in the Constitution that prohibits them from doing so. You have just given up your protection of the Constitution, and thus the Best Interest of the Child Doctrine can be used.
(NOTE: I tend to over simplify in these columns just so we can focus on one specific tool at a time. So just keep in mind that sometimes there can be other arguments regarding whether or not the judge is allowed to violate your rights and the child’s rights and come to a decision of unequal time between the parents without still meeting the proper triggers.)
Now you can ask the judge to question the relevance, the need, as well as the consistency of the best interest doctrine with proper examination of the doctrine as outlined above. You can then ask that the doctrine be abolished from being used in your case, if you have proven that upon its examination it no longer serves as proper guidance for applying the proper rule of law.
What does this mean for you if you persuade the Court to apply the 14th amendment to your child custody, child support, or alimony disagreement? You will have opened the door for abolishing application of the best interest of the child doctrine in your case in the Court. You will have opened the door for arguing against requiring social studies, psychiatric evaluations, GALs, and many other burdens being imposed on you.
(NOTE: We understand that there are many personalities out there that have used the process to harass and control you. And that you might think that forcing psychiatric studies and other things will protect you and your child from having to deal with the other parent. There can be tremendous financial burden placed on you if you continue to pursue this path under the lowered standards. Even when you get free representation through a domestic violence channel, keep in mind that many parents continue to suffer because the discretion you give the judge when you ask the Court to use lowered due process standards means that there is higher risk of error. Giving judges more training on the broken down process that is being used today does not stop the judges from applying their own personal biases and personal beliefs. This method that we write about on this post of applying your rights protected by the 14th amendment might mean that the other parent won’t be able to take control over you or your children through the courts so easily. They won’t be able to take advantage of you so easily anymore either. So if you are dealing with narcissism, parental alienation, or other disorders from the other parent, this method might help you protect yourself from the court making errors and cutting you off from your child. It doesn’t solve every problem in the system. It doesn’t solve the criminal justice system. But it does provide you with an added layer of protection from being taken advantage of by the abusive behaviors of the other parent through the Courts.)
You will be one step closer to proving your argument that the State is not allowed to take action against you without meeting proper thresholds.
And remember Due Process applies when the State acts against you. And the family courts regardless of how many times they want to deny this are State actors. The Due Process clause of the 14th amendment doesn’t govern how the State sets rules, it governs how they apply them to YOU.
Check back tomorrow for some more tools to help you protect your family through the process!
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.]
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.]
Go to the Family Rights wiki if you would like to suggest more topics to discuss or read more free information on these topics.
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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