Parents Have Rights and Expect their Attorneys to Protect and Preserve those Rights

by | Mar 18, 2013

(Last Updated On: March 18, 2013)

Okay, so you have read Chapter 1 of our new book that we posted on this blog, now what?

This book is not just a bunch of arguments being layered into the current system. It is not just another band-aid. It is a complete re-thinking of the family law approach, based on a fundamental rights perspective and not based on a “court is king and the parents give up their right to make decisions regarding their children in divorce perspective.” 

If you are an attorney you might think you have tried this approach already and that it was ineffective or that it is too expensive. After reading this book, you will understand that you have not tried this approach and that it is too expensive NOT to argue this.

Before reading the book, you most likely were thinking, “yeah right, there is no way I will get anywhere with our judges if I try to argue constitutional protections, our local judges don’t care about constitutional pleadings, in fact they hate when they see pleadings claiming constitutional protection, it makes them mad and if they get mad at my client they might take it out on their rights to their children” etc.! When in fact, you know that you have a duty to protect your client’s rights. You probably had parents that are desperately trying to hang on to their relationship with their children that don’t want to attack the other parent in court – they just want their equal time with their children. They don’t understand why you are telling them that they need to attack the other parent’s character and get the children to side with them. They believe that they and their children should be protected with the law since they didn’t break any laws. Parents that walk through your door usually believe they have rights, equal rights. When you explain to them that they don’t and they ask you why not, what do you tell them? What do you tell them when they ask you why they don’t have more protections? What do you tell them when they ask you how can the law let the other parent force them into expensive litigation over petty complaints?

If you explained to these parents that the district court just doesn’t follow any constitutional arguments because they don’t believe that it applies to them, and that the district/state court can do what they want because it is within their discretionary power, you are, in our opinion actually misleading them in many ways, and in essence failing to do the job. We, the authors, of this book are not looking to attack you, the attorneys. We know that this has become so muddied that it has been difficult even for the most, well-funded researchers to come up with ways to practice family law better. We are sharing with you what we discovered that is probably the simplest most revolutionary argument to date.

The state courts have been doing what they want because parent’s rights have not been protected properly and argued properly to preserve their rights at higher levels, because the cases have not been framed appropriately to win the constitutional argument. This book will help you become a part of the solution and helps you reject the perpetuation of the old harmful and unjust practices in family law.

A brief sidetrack here, so you can understand why family law might still be stuck in the middle ages, and carrying on like they are on a witch hunt. Why does the adversarial, high-conflict, he said/she said practices that perpetuate and encourage petty complaints continue? These we believe are from the era before no-fault divorces and the era before the Fourteenth Amendment was passed. I believe that attorneys did not update the way that they practiced family law for three reasons, they have not framed the problem to be solved correctly, is the problems are being tolerated by judges and parents still, and they were very familiar with the adversarial system that developed before, so it was easy to continue that way without anyone being the wiser; and since they make law so complicated it has been very difficult and time consuming for anyone to really figure this out. These practices, in my opinion, are merely appendages that still exist from an old system.

Back to the present. Just because you know that your district court does not entertain constitutional arguments; that you or perhaps an attorney you know or have heard about did not have success with constitutional arguments; or that the local courts don’t even believe that the Constitution applies to them when it comes to custody matters, does not protect you from malpractice suits for not arguing Parental Rights. If you are failing to plead parent’s rights because you believe that putting those arguments into your pleadings is probably just going to annoy the judge, that the judge might take out their annoyance on your client, or because of a the fear that your colleagues might laugh you out of the courthouse, you probably shouldn’t be practicing family law. And those excuses do not protect you from malpractice suits. I know, you can hear it now, your judge tells you that it is a state matter and that no one has told them that what they are doing is unconstitutional so they are rejecting your argument and objection to your client receiving only visitation in their child’s life, right? You went to school to defend parents and protect their children, not to give in to the pressures from a judge or the system. You are gladiators in this arena and it is your job to fight, to defend, protect, and preserve your client’s rights, not give in or be soft.

Doesn’t matter what the courts you practice in have done in the past, you can change it by changing the way you are framing your cases. What matters is if your client and their children’s rights are protected and preserved. If your client needs to make an appeal based on their constitutional rights and they weren’t plead in your motions or in the courtroom, you just forfeited their rights for them and they might not be very pleased with you. This book should help your confidence in this area. It will certainly inform your clients of their rights in this area with specific supporting references to SCOTUS opinions.

Supreme courts can only rule on issues that have been preserved and argued properly. And of course, after a parent is dragged through a lengthy and unnecessary routine of mediation, counseling, family studies, etc. there is a problem with money being available to do this. If you spend less time entertaining inflammatory arguments and game playing by the other side or even with the court and you move immediately for rulings on the rights of your client, you will spend less time and money on subjective issues and more on rights of the parent and their child. Regardless, it takes no extra money to include in pleadings protections of the rights we cite in this book. For the most part, you do it once and then just copy and paste.

This book brings the current system’s issues to light and the practice of defending parental rights up to date. We are offering this information to those that provide the services to the parents that find themselves having to defend themselves, to the legislators of your State, and to your clients. This will reduce the amount of harm that the system inflicts on children and better protects and preserves parental rights and children rights—all of their rights. Defending parental rights will also greatly reduce violent crime and harm to children as opportunities for abuses such as parental alienation will be greatly reduced. We don’t go into more detail on the last matters here but we do in the book.

The following is a section from Chapter 4 – called “Parental Rights are a Fundamental Liberty Guaranteed by the U.S. Constitution.”

“One of the oldest fundamental liberties (rights) we have is the interest of parents in the care, custody, and control of their children. Ironically, this is also one of the least protected and most abused rights we have. State Courts arbitrarily and capriciously abridge, limit, and outright deny this right in thousands of cases on a daily basis. Parents have rights only if they are single or if they remain married. The moment you file for divorce, you give up all rights over your children to a Family Court Judge. We find these type of practices to be intolerable in a free society.

At the heart of this is the Trial Court’s claim of a singular concern with the best interest of the child and your Judge’s personal interpretation of that phrase. Your Judge then proceeds with the belief that his or her determination of best interest overrides yours and the other parents. If your Judge determines the best interest of your child is to limit your time with the child and award the other parent the lion’s share of time with the child, then that is the reality you are going to have to live by, unless you assert your Fundamental Rights appropriately. If you don’t protect them and require that your attorney move to protect them, your Fundamental Liberties will likely never be considered, and even if they are, the Judge’s opinion of best interest will cause those liberties to be meaningless.

However, Divorce Courts can only continue to do this if we allow them to exercise this power unchecked by Constitutional guarantees. Your rights will only be acknowledged and protected if you insist that they are by proper legal means.”

Regardless of whether or not a state court judge is going to override the parent’s rights to their children, if you do not plead that the parent has constitutional protections to their equal time and equal rights to their children unless the court find them unfit or make a finding of harm that rises to the level where state intervention is warranted, then your parent most likely will be barred from arguing this on appeal. And, if it is not plead then they will probably have difficulty bringing it up later if you want to try and push this to State Supreme Court level and even U.S. Supreme Court. I know that I’m having difficulty finding many people that have successfully appealed orders from the lower courts regarding custody of the children when it is only reduced time and rights and not a termination, and I believe that is why. Keep in mind, prohibiting people from political speech in all public places IS NOT A TERMINATION OF FIRST AMENDMENT RIGHTS, it is simply a reduction of that right. Would SCOTUS tolerate that? There are many rulings on when abridgement of speech is allowed and when it is not. Yet we do not have any rulings on when it is constitutional to reduce parent’s fundamental rights with their child and when a state is allowed to interfere in the parent-child relationship in divorce.

I know that when I hired an attorney I hired them to protect my rights to my children and to practice law, not play emotional games with the other parent and their counsel, or play he said/she said in a court of law while charging me for the practice of law. Our book goes on to say:

“We ask you, what is it about divorced parents that make them less deserving of Fundamental Liberties guaranteed by the Constitution?…that, once a spouse files for divorce, both parents are by default found to be unfit? The real impact for children every day, of this kind of thinking, is that they are routinely denied two loving parents and receive instead one parent and a visitor in their lives who also serves as a checkbook. The result is that the children’s Fundamental Liberty Interests in having two loving parents is also destroyed. This is a fact that flies in the face of the Divorce Courts assertion that it acts in the child’s best interest.

Judges, attorneys, women’s groups, even children’s rights advocates, and many other adults often wrongfully interpret Children’s Rights to be in conflict with Parents Rights in divorce, if they even believe that parents have any rights, at all, in the divorce context. The Supreme Court has made clear that it is the legal presumption of this nation that fit parents generally act in the best interest of their children. It is encouraging that some (very few) Courts are starting to recognize that Children’s Rights include the right to free association with both parents. The Third District Federal Appellate Court and the Virginia State Supreme Court have both stated that children have a fundamental liberty interest in continued companionship with their parents. Surely that interest is equal for both parents…that children have a fundamental free exercise of religion interest in receiving moral, religious, and citizenship instruction from both parents, and that instruction by example requires equal contact with each parent. Depriving a parent of equal parenting time, necessarily, denies them of equal opportunity to instruct their child in their own moral and religious beliefs, denies the parent sufficient opportunity to guide by example, and it denies the child the benefit of that instruction and example as well.””

The content of our book can and will be used to change the way family law is practiced. Parents have helplessly watched the system harm their children for far too long, many well-meaning attorneys have been shut down and frustrated and unable to help the parents and children, so we wrote this book so that they can fight back more effectively and successfully.

I believe that your clients once they get this information will once again be expecting you, their attorney, to know how to protect them from attacks on their rights from their former spouse and the Court. Hopefully that is why you practice family law, to defend and protect the rights of parents and children and to inform the judge what you believe the rights of your client to be. I believe that most attorneys went into law school believing that courts are the arbiters of administering the law justly. Therefore it is your job as attorney to frame the case properly, and accordingly to the laws so that the judge can do their job. Family law has to adapt to reflecting that the Fourteenth Amendment made these rights applicable at the state level. We are making this book available to share with you what we have discovered and how we believe it should be argued. And it should be available soon: “Not in the Child’s Best Interest: How Divorce Courts get it all Wrong and How the Constitution can fix it”

In the meantime, while we are getting the book ready to publish, if you have anything to contribute or argue let us know. If you want to know when the book is released follow us on this blog or sign up for e-mail notification.


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