We wanted to make sure that you understand some of the important parts of this case and what you should be insisting your attorney argue. While this case confirms the things that our books and online courses teach pro se parents about their rights and their children’s rights, this Court still does not address or apply their reasoning to parents in litigation against another parent. It is only a matter of time before the courts can no longer deny these same rights to all parents as well. How long this will take depends on you and when you decide to stop believing their weak excuses for why you and your child aren’t getting the protections you and your child are entitled to. We show you in our books and online courses how to take the rights that are universally and equally applicable to all parents. In this blog article let’s take a look at the holdings and confirmations in this case, In re Zakai F.
Connecticut confirms that Santosky is their guidance for determining the protections that parental rights and children’s rights receive. (See the Palmers books and motions for a deeper understanding of these arguments. All child custody coaches need to know how to argue these rights if you want to know how to win child custody in a way that forecloses continued harassment from an ex and shut down broad, arbitrary, loose, and vague litigation.)
Supreme Court of Connecticut Agrees that the Constitution Applies in Family Law
Although there is nothing new or groundbreaking here, the court goes into certain details and confirms some important things. It is important for parents to know what they will be up against when they face a court of law that has been incorrectly applying the law. It is important for parents to understand where mis-application of the law is occurring, where parental rights and children’s rights are being violated, and what can help you win your case. It is important to know where you might receive pushback from the court, and even your own attorney despite well-settled and proven fundamental constitutionally protected parental rights.
This case is about establishing the proper standard of evidence to be applied to a parent when they are attempting to restore their custodial rights after having gone through some tough times where they had to temporarily have someone else care for their child. Connecticut Supreme Court makes it clear that past indiscretions such as hooking up with an abusive boyfriend, a child being killed by a former spouse, and needing time to transition to a life without them and establish yourself, and even needing to learn how to manage your own anger and work through a protective order, does not mean the court can just presume that you are unfit, the trial court must prove it. And they cannot prove it at the lowest unprotected level of preponderance.
The Court only was only asked to determine what evidentiary standard to apply to parental rights, and whether a parental presumption is required. That presumption being that parental custody reinstatement is in the best interests of the child despite a parent’s shortcomings or transgressions provided these issues had been resolved at the time the parent wishes to restore their rightful place as guardian of their natural child. The Court decided that this presumption is necessary to provide sufficient protection to the parent’s and the child’s fundamental interest in family integrity. This Court agreed that children have concomitant rights with the parent. The Court however did not go into any of the actual process that is due the rights at issue. (If you would like to know more about this topic, you can find our discussions about it in the green book.)
None of the Supreme Court of Connecticut’s reasoning in this case is new. They drew their logic from prior Connecticut cases as well as U.S. Supreme Court cases.
The reason that the Connecticut Supreme Court took this case is because the judge failed to apply an evidentiary standard appropriate for the rights at issue. If the trial court had applied the proper balancing tests the proper evidentiary standard would have been evident. The Connecticut Supreme Court found the standard the judge chose contradicted the level of protection required to protect parental rights that involved companionship, care, custody, and control, and that these rights were useless without the intimate association required to be able to enjoy these rights. The Court also compared the evidentiary standard that other states use in cases involving a parent and a non-parent, as well as the evidentiary standard used for other issues not as important as the fundamental rights of parent and child.
This case is about a mother, whose child was killed by her husband, and her other child abused by her boyfriend, with substance abuse issues, who voluntarily transferred custody to her sister temporarily until she could improve her life and provide a safe and adequate home environment. She attempted to reinstate her custody of her son at trial and failed despite the trial court noting that she had cured the problems that led to her voluntary transfer of custody to her sister.
The mother then made an abuse of discretion argument on appeal and lost. She decided to appeal to the Supreme Court of Connecticut on an unpreserved constitutional violation under Golding. (Golding is the standard that the state of Connecticut uses to decide whether an unpreserved claim qualifies to be heard under appeal. Appellate courts are courts of error and they don’t like to hear complaints about mistakes the trial court made if the trial court was not provided opportunity to hear argument on the matter. However, there are some errors that are so fundamental that they should be heard. Not all states will however, and usually family law cases go unheard in this area, with the rare exceptions such as this one, when the error is grave and can be duplicated often.)
What Question was the Supreme Court Asked?
The Supreme Court of Connecticut agreed to accept this mother’s case under the following re-formulated question: (You will see appellate courts do this to either consolidate cases or also to more precisely pose the question to clarify and make more clear. You might recall that the Supreme Court of the United States reformulated the questions in the same sex marriage cases a few years back, Obergefell v. Hodges in 2015.)
‘‘When a parent who has agreed to a transfer of guardianship seeks reinstatement of guardianship rights under . . . § 45a-611, is there a constitutional presumption that reinstatement is in the best interests of the child, and, if so, does a heightened standard of proof apply pursuant to Santosky v. Kramer, supra, 455 U.S. 745?’’ (The mother in this case did not pursue the abuse of discretion argument so it was not addressed here.)
What Standard of Proof is Required in a Reinstatement of Custodial Rights?
Connecticut’s guardianship statute for reinstatement did not have a standard of proof provided in the statute. The trial court judge applied a “fair preponderance.” This Court undertook an analysis and performed a balancing test to determine the standard required by the Constitution. This is a duty that we have been arguing the courts must perform, even if a standard is stated in the statute, if a parent argues that the standard is incorrect, then the balancing test that this court did should be applied. The Court decided that the “clear and convincing” evidentiary standard is required.
“It would strain rationality if a parent could lose her constitutional right to parent her child by a mere preponderance of the evidence when a party must prove fraud for the purpose of recovering monetary damages, or a lawyer’s ethical lapse—claims certainly less weighty than the fundamental right to parent a child—by a heightened, clear and convincing standard.”
This is precisely the argument we have been making at Fix Family Courts for years and now the courts are starting to get the message.
Presumption that fit parent acts in the best interest of the child.
The Court also noted that there was no presumption that it was in the best interest of a child to be returned to its natural parent after transferring or even temporarily relinquishing custody to another person or relative even after they cured the reason for the necessity for the guardianship. This made it inappropriately difficult for a parent who had only intended for their child to be away temporarily, just long enough to cure a problem or to attain a stable and adequate home environment. The Court found that this would discourage parents from obtaining the assistance they needed and allowing someone else to provide for the child. The state of Arkansas in fact makes it very easy for a parent to regain custody of their child by not even requiring the parent to go through a court hearing. At any given time the parent can revoke their permission and the person who was caring for the child must return them. This is actually how it should be. The Connecticut Court however decided that this mother must return to the trial court.
The United States States Supreme Court discusses child custody as something that parents can delegate in whole or in part at any time. You actually delegate parts of your custody to the school your child attends. Imagine if you had to go to court to remove that delegation. This is essentially what the Connecticut Supreme Court is requiring and what Arkansas is not requiring. We at Fix Family Courts argue and support our argument that parents have a privacy right to delegate parental authority to others and revoke that authority at any time. The only business courts have in this process is ministerial in providing court orders that other government entities such as schools will recognize. Courts have no power to second guess the parental decisions of fit parents, period.
Parental presumptions are about who carries the burden of proof in court. This Court correctly recognized that parents are entitled to be presumed fit and that anyone who seeks to take custody from the parent must face the burden of proving something that would warrant taking the child. What the trial court was doing was improperly shifting the burden of proof onto the mother and making her prove that it was in the child’s best interest to be returned to her. This is a burden shifting scheme that violates the constitution and the parent and child’s right to family integrity. This places an unconstitutional burden on the natural parent. The Court believes that this presumption will correct that problem. While it is a step in the right direction, this court still made some serious errors in how it dealt with the parental presumption.
Best Interest of the Child is Subjective and Infringes the Parental Right of a Fit Parent and Child.
The Court found that reinstatement proceedings use the best-interest-of-the-child analysis. And upon further examination of the best interest standard, through a review of previous cases from Connecticut as well as Santosky, the Court confirmed that best interest is “unusually open to the subjective assessment of the trial judge, and “delegates to judges authority to apply their own personal and essentially unreviewable lifestyle preferences to resolving each dispute.”
The Court primarily used In re Juvenile Appeal as instructive and found that “this court has recognized this risk, as well as the “risk that judges or social workers will be tempted consciously or unconsciously, to compare unfavorably the material advantages of the child’s natural parents with those of prospective adoptive parents [or foster parents].” And “that this subjective assessment will often negatively affect parents of lower socioeconomic status . . . requiring the heightened, clear and convincing standard” to appropriately balance the interests of the parent and the child “from the erroneous deprivation of their parental rights.” Concluding that “[g]iven the weight of the private interests at stake, the cost of any error in reinstatement of guardianship rights in a fit parent is significant.” And that “Increasing the burden of proof is one way to impress the [fact finder] with the importance of the decision and thereby perhaps to reduce the chances that inappropriate [deprivations of guardianship] will be ordered.” Santosky v. kramer, supra, 455 U.S. 764-65.
This is also a step in the right direction but is far too forgiving of the indiscretions of judges. Best interest is really impermissible viewpoint discrimination used to impose prior restraints on First Amendment rights.
The Burden Shifting Scheme
The Court found that burden shifting was made possible because all of the other elements that serve as a means to protect fundamental rights were missing. By requiring clear and convincing and the presumption the parent and child’s right to family integrity would be protected. Before the aunt could continue as the child’s guardian she would have to show the court that the mother was a safety risk to the child.
In explaining the burden shifting scheme, this court expressly held that a presumption that revocation of commitment would be in the child’s best interests should apply. This court explained that, ‘‘[although] it is certainly true, as we have held, that parents have no natural right to the custody of their children that can prevail over a disposition [a]ffecting the child’s best interests . . . parents are entitled to the presumption, [in the absence of] a continuing cause for commitment, that revocation will be in the child’s best interests unless the state can prove otherwise.’’ (Citations omitted.) Id., 659–60.
Parents in suits affecting the parent child relationship with the other natural parent will still find challenges to their attempts to directly apply this case to theirs if the other litigant is the other biological parent. We have made a list for you so you know what you can take away from this case and perhaps serve as a starting point for you in your endeavors. The logic holds true in parent vs parent cases but the courts twist their logic to avoid applying it properly. You need to be prepared and know how to fight their twisted logic.
Temporary is not so Temporary and Therefore Warrants a High Standard of Proof
The Court also reviewed discussions that the legislators had when they passed the statutes being reviewed in this case and noted that the Attorney Podolsky stated that “a temporary removal may be for a very extensive period of time. You’re not just talking [thirty] days, you may be talking months and months and months. And it seems to me when you’re talking those terms, that you really ought to be using [the] clear and convincing [standard].” Reasoning that a temporary removal may be for a very extensive period of time and “that a parent seeking reinstatement should not face a high standard of proof.”
Even if circumstances change in a manner that might warrant reinstatement, the respondent has already lost her constitutional interest in family integrity for several years. The time Zakai and the respondent will be separated will only continue to increase, further solidifying the ‘‘permanency’’ of Zakai’s arrangement with the petitioner and decreasing the chance that the respondent will be able to reinstate guardianship. As such, this case is effectively a permanent transfer of guardianship under General Statutes § 45a-616a. Significantly, to establish a permanent guardianship, the court must find by clear and convincing evidence that the establishment of a permanent guardianship is in the best interests of the child. See General Statutes § 45a-616a (a).
We have been arguing for a long time, supported by Supreme Court case law, that even minor limitations on a parent’s rights is irreparable harm to the parent’s and the Child’s First Amendment rights that warrants mandamus intervention.
State Policies Should Not Undermine Parents who Seek Assistance in Times of Temporary Difficulties
The Court confirmed that:
“‘[t]he goals of strengthening the family and enhancing long-term parental capacity for child care despite temporary difficulties would be seriously undermined if parents in need of help could not safely entrust their children, even for short emergencies, to someone who could give them better interim care. Such temporary arrangements under circumstances of extraordinary need should not put parents in the position of risking permanent loss of their children due to the intervention of the state.’’
What Should I Take Away from this Case?
- Parent and child’s rights do not diverge until a parent is found to be unfit or a safety risk to the child.
- The parent and child share a vital interest in preventing erroneous termination of their natural relationship.
- The evidentiary standard that protects the fundamental rights of parents and children is “clear and convincing.”
- The burden of proof is on the parent who relinquished custody in the state of Connecticut to show that they have cured the reasons they transferred custody to someone else temporarily.
- The burden of proof then shifts to the other party, the foster parent, to rebut the presumption that it is in the best interest of the child to be returned to its natural parent.
- That a presumption must be applied in order to protect the fundamental rights that were at issue in this child custody case.
- The presumption is rebuttable. The other party must rebut the presumption before the trial court has the authority to transfer custodial rights or care to them.
- That using preponderance and applying no presumption shifts the burden of proof onto the party attempting to restore rights and time to the child.
- That the best interest of the child standard is subjective, employs viewpoint discrimination, and subject to error and unfair trials.
- The State does not benefit from separating children from their fit parents and in fact it is contradictory to the State’s purpose of protecting the welfare of the child.
- The grounds for removal can no longer exist. The parent who lost the guardianship status has to prove these grounds no longer exist.
- Because the Court can completely restrict visitation it can become a de facto termination necessitating the increased burden of proof and shifting the burden back onto the party asking the state to deprive the parent and child of family integrity.
- Because there was no particular standard assigned to anything less than a permanent termination of parental rights, a balancing test was required.
- Because reinstatement proceedings are distinguishable from third-party custody proceedings a standard needed to be established.
- A third party must, among other things, demonstrate that parental custody would be detrimental to the child.
- Because temporary orders can cut a parent off completely from visitation and the orders can last for over 30 days and sometimes months and months and months the clear and convincing standard is applied.
- Because temporary orders can last for a long period of time they are considered final orders. Legislative discussions show that the legislators believed that deprivations longer than 30 days were not permissible.
- These protections are necessary, because the longer a child is separated from its parent, the more the court believes the parent and child are at odds with each other, even though the court says the denial to reinstate guardianship is not permanent.
- There is no increased cost to applying the clear and convincing evidentiary standard. “The state’s administrative and fiscal burdens do not weight in favor of a lesser standard of proof.”
- “The state registers no gain toward its declared goals when it separates children from the custody of fit parents.”
- Although the state’s goal is to provide the child with a permanent home . . . the parens patriae interest favors preservation, not severance, of natural familial bonds.”
- “The parent is not afforded the same protections to which she would have been entitled if the state, rather than a third party, had opposed reinstatement.” This refers to state law protections.
These are points the Connecticut Supreme Court made. Some of them are correct points and some of them are twisted points. Many of them depend on the particular state statutes at issue. They do not go nearly as far as we believe federal law and the federal constitution demand. (If you want to read the Palmer’s winning arguments for child custody coaches, pro se parents, and attorneys, that have proven time and time again to be the correct arguments, and that Attorneys General and State Supreme Courts are starting to confirm all over the United States click here.)
Your Attorney is not Providing These Protections When Your Litigation Involves the Other Parent. You are entitled to these protections. However, over time, the states have found ways to make excuses about why you don’t get them and about why your child does not get them. They instead become an adversary against you while they wield all of their state resources at you and pretend that they are not a part of the litigation. Your pocketbook will say otherwise.
When you find yourself having to pay for court-appointed so-called experts (expert at stealing your child through fabricated and twisted, mixed up bad reasoning and subjective logic, your own attorneys, and other experts to prove other personal and private decisions that are far from reaching the threshold of what the court should actually be involved in, you will also find yourself bankrupted not only financially but also emotionally. It is usually then that we hear from parents like you. And it doesn’t matter whether you are middle class or a millionaire, they will just set the amount they can spend with you to the level of earning and assets you have available. Your case becomes nothing more than a transfer of wealth. You and your child lose in this scenario. They don’t want to apply these rights to you and your child not because the other party is the other parent, but because they wouldn’t be able to spend your money.
If you need a deeper understanding regarding your parental rights, and need some more help understanding how to get the maximum protection you are entitled, we teach winning parental rights arguments that the states have slowly begun to warm up to and apply. There is plenty here to help you. If you just need to learn how you can protect yourself with constitutional rights see our books, “NOT in the Child’s Best Interest“, “Beginner’s Guide to Family Law,” our motions packages , and our online classes and membership, for a deeper understanding.)
NOTE: We go into more depth and breadth on these topics in our books, motions, online courses and membership. There are areas in this Connecticut case that were not argued properly. It is our belief that the justices in this court did this in order to try and preserve their best interest of the child statutory scheme. We maintain that the best interest of the child scheme is corrupt and when constitutional principles are applied properly fails the test for being used in any case involving fit parents. There is no reason for litigation over matters the court has not properly been triggered to apply itself.