Why Best Interest is Always Illegal!
State's can NOT "grant" to natural fit parents custody rights that they already hold as federally protected fundamental rights.
By: Sherry Palmer | Posted: | Modified:
The Best Interest of the Child Standard applied by every state to “grant” custody postdivorce is applied as a replacement for the due process and equal protection our constitution demands.
Best interest is illegal because the state simply can NOT “grant” to natural fit parents, that which they already hold as fully vested federally protected fundamental rights. The child depends on the rights of its parents to protect it from unwarranted state action.
The child is entitled to have and to maintain an intimate and expressive, close family, parent-child association with each of their fit parents. These First Amendment protected relationships serve to protect the child from a multitude of dangers that they face before they reach the age of majority, including injuries caused by overzealous state action alleged to be in their best interest.
The Supreme Court has held that depriving individuals of First Amendment rights even for short periods of time, (i.e., “granting” unequal custody and possession) without first providing the full range of First Amendment constitutional guarantees is irreparable injury. When the rights are already federally protected, the state can NOT “grant” those rights to either parent without first terminating, nullifying, or seizing those rights from the fit parents.
It is clear therefore that First Amendment interests were either threatened or in fact being impaired at the time relief was sought. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury…
Supreme Court 1976
The Supreme Court has held that children have First Amendment rights that are entitled to constitutional guarantees.
Minors are entitled to a significant measure of First Amendment protection… No doubt a State possesses legitimate power to protect children from harm… but that does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them… The State must specifically identify an actual problem in need of solving… and the curtailment of free speech must be actually necessary to the solution…
Supreme Court 2011
The connection is simple. You and your child share the right to have and to maintain intimate and expressive, close family, parent-child speech, association, worship, and family privacy with one another which are rights protected by the First Amendment and the Supreme Court has held that close family associations should be the most protected form of intimate association.
Intimate associations are expressive associations because intimacy can only exist if intimacy is expressed and received, which is expression through speech and other means.
Parenting plans are injunctive prior restraints on the times, the places, and the manner in which parent and child may speak with one another, may associate with one another, may worship together as a family, and may share family privacy with one another.
The Supreme Court defines prior restraints as the following:
The term "prior restraint" is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur… Temporary restraining orders and permanent injunctions… are classic examples of prior restraints.
Supreme Court 1993
These injunctive prior restraints are justified solely by the mere viewpoint of a sole state official regarding the relative value of one parent-child relationship vs the other parent-child relationship. The court conducts an exploratory search into the speech and association between each parent and child to make a values-based determination of which speech and association is “best” for the child and which is “less-than-best” for the child. This is undeniably viewpoint-discrimination which is the most disfavored form of content-based prior restraints.
The Supreme Court has held regarding content-based prior restraints:
Content-based restrictions on speech are presumptively invalid and subject to strict scrutiny… Restrictions on speech based on its content are presumptively invalid and subject to strict scrutiny… It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.
Supreme Court 2009
According to the Supreme Court:
the settled rule is that a system of prior restraint "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.
Supreme Court 1975
These injunctions establish a censorship scheme where the state enhances the speech and parental authority of one parent while diminishing the speech and parental association of the other parent.
The principle that has emerged from our cases "is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.
Supreme Court 1993
The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment…
When Government seeks to use its full power… to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
Supreme Court 2010
When your divorce court judge openly rejects their Article VI oath to protect constitutional rights by choosing to replace your child’s due process and equal protection rights with a sole state official’s mere viewpoint of your child’s best interest, your judge irreparably injures your child.
Article VI, United States Constitution:
Clause 2 - The Supremacy Clause:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Clause 3 - The Oath:
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
Clause 3 requires all government officials, including state court judges, to swear an oath to support the federal constitution. Clause 2 enhances the oaths to be sworn by all judges by binding judges to the federal constitution above all other law. This is why state court judges have a duty to declare the unconstitutionality of any state law that conflicts with federal law or with provisiions of the federal constitution. Clause 2 is called the Supremacy Clause because it specifically holds the federal constitution to be the supreme source of law and that all other sources of law are subordinate to the federal constitution.
Therefore, when a state child custody court judge imposes child custody orders that limit the times, the places, and the manner in which the child may speak with, associate with, worship with, or share family privacy with either fit parent, the issuance of that custody order must comply with all constitutioal protections guarding against prior restrainst on First Amendment rights. When the child custody judge fails to provide these guarantees for the rights of the child, the child custody order becomes a nullity under the Supremacy Clause because the judge violated the judicial oath to be bound by the federal constitution.
There exists NO set of circumstances under which it can ever be in any child’s best interests for the state to deprive them of those constitutional guarantees that protect them from illegal state action.
The state’s replacement of your child’s due process and equal protection rights with the viewpoint discrimination of best interest is NOT rationally related to acting in the child’s best interests because it can never be in your child’s best interests for their constitutional rights to be denied under the best interest standard.
The Supreme Court has addressed what results from violations of First Amendment constitutional guarangees:
It is clear therefore that First Amendment interests were either threatened or in fact being impaired at the time relief was sought. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury… Since such injury was both threatened and occurring at the time of respondents' motion and since respondents sufficiently demonstrated a probability of success on the merits, the Court of Appeals might properly have held that the District Court abused its discretion in denying preliminary injunctive relief.
Supreme Court 7976
The Supreme Court has directly addressed the authority of the state to punish children with loss of constitutional rights as a means of punishing the marital choices of the child’s parents and has definitively held that state’s may NOT deprive children of rights simply because their parents made marital choices the state disfavors.
The Court has declared unconstitutional a state statute denying natural, but illegitimate, children a wrongful-death action for the death of their mother, emphasizing that such children cannot be denied the right of other children.
Supreme Court 1972
The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as an unjust—way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where—as in this case—the classification is justified by no legitimate state interest, compelling or otherwise.
Supreme Court 1972
The state has no more legitimate interest in depriving your child of rights because you divorced than it does because you never married. Illegitimacy is a term that refers to children born to parents who are not married to each other. Punishing your child with loss of rights because you divorced has been declared unconstitutional since 1972. It has been declared to be "irreparable injury" since 1976.
You and your child already have personal speech and association rights that can NOT be limited because of marital choices. If you have the rights and they are protected in divorce and child custody proceedings, and if your child custody judge swore an oath to declare unconstitutional any state child custody statute that authorizes child custody orders in violation of the First Amendment, How then can the state grant you custody?
Why, then, are you allowing your judge to punish your child for your otherwise lawful and constitutionally protected choices regarding marriage when the state has NO legitimate interest whatsoever in irreparably injuring your child, and NO legitimate interest in penalizing any child for the marital choices of their parents.
Additionally, he granting of rights is a legislative function that can NOT be delegated to judges. State legislatures have zero legitimate authority to grant a right that infringes upon your preexisting federally protected rights. If your state family code asserts that a state judge may "grant," "assign," or "allocate," child custody rights to a natural fit parent your judge has a sworn duty to declare that child custody statute to be unconstitutional.
Frequently Asked Questions
What are prior restraints?
The Supreme Court has defined prior restraints this way. “The term ‘prior restraint’ is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur… Temporary restraining orders and permanent injunctions… are classic examples of prior restraints.”
Why is the Best Interest Standard Always Illegal?
When your state court judge replaces your child’s due process and equal protection guarantees with his or her own viewpoint regarding what is best for your child and deprives your child of First Amendment rights to speak with and associate with either parent, even for minor periods of time, that judge irreparably injures your child. Naturally, irreparably injuring a child can NOT be in that child’s best interests.
Are Parenting Plans Presumptively Unconstitutional?
Where a state court judge places prior restraints on the times, the places, and the manner in which parent and child may speak with one another, may associate with one another, may worship together as a family, or may share family privacy with one another based upon his or her own viewpoint regarding which parent-child speech and association is “best” for your child and which is “less-than-best” your judge imposes viewpoint-based prior restraints which are always presumptively unconstitutional.
Why is it impossible for a state court judge to “grant” parental rights to a natural parent?
Parental rights for biological parents is a natural right that preexists the existence of any government. Parental rights are “individual” rights that cannot depend upon marriage between the child’s parents and cannot be denied based upon divorce. Any natural parent who has established a parent-child association by acting as a parent in caring for their own child establishes federal constitutional protection for their natural parental rights as fundamental rights. 1) Natural rights can NOT be granted by any state authority. 2) Individual parental rights can NOT be denied or terminated simply because the child’s parents never marry or divorce one another. 3) Constitutional rights can NOT be denied by the state simply because someone filed suit against you. 4) Your federally and individually protected fundamental parental rights are fully vested and fully intact during child-custody proceedings. How is it legally possible for a state court judge to “grant” you that which you already hold by fully vested federal right?
Do Children have First Amendment rights protecting them against child custody judges?
Yes. “Minors are entitled to a significant measure of First Amendment protection. No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. The State must specifically identify an actual problem in need of solving… and the curtailment of free speech must be actually necessary to the solution…”
Child custody judges claim to be protecting children from harm by imposing prior restraint child custody orders. This power is generally declared to be an exercise of "broad discretion." California labels it the "broadest possible discretion." The judge is essentially claiming to be protecting the child from the ideas of a fit parent based on their own personal viewpoint regarding which parent's ideas are "best" and which are "less-than-best." This is called censorship through application of viewpoint-based prior restraints and it is presumptively unconstitutional requiring the state to meet the burden of proof in each and every case under the facts and circumstances of that case. Children have personal First Amendment rights and every child custody judge who acts under best interest authority violates the rights of the child.
Does the First Amendment protect the parent-child relationship?
Yes, without any doubt. The Supreme Court has “emphasized that the First Amendment protects family relationships.” The Supreme Court has held that “the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments” and that “association in that context is a form of expression of opinion.” Speech and association are personal rights of the individual which must be individually protected by the courts.
The Court has also held, “this affirmative process of teaching, guiding, and inspiring by precept and example is essential to the growth of young people into mature, socially responsible citizens.” And again, the Court has held, “it is through the family that we inculcate and pass down many of our most cherished values, moral and cultural… Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family.” And yet again, the Court has held, “choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect.” The Fourteenth Amendment incorporates First Amendment protections into its term “Liberty,” it protects only "personal" rights, and it applies First Amendment guarantees against state action of child custody judges.
Can the state violate your parental rights if it claims it is benefiting your child?
NO! The Supreme Court has held that, “the Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family.”
Are parental rights and child rights only protected in the nuclear family unit?
NO! The Supreme Court has held, any suggestion “that any constitutional right to live together as a family extends only to the nuclear family— essentially a couple and their dependent children… But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case… Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family.”