Children's & Parental Rights in Family Court

by Mark Godbey
March 5, 2009

Over the past decades, parent's rights and children's rights in family and juvenile courts have been affirmed by many courts. But still parent's and children's rights are trampled on by the state in the areas of education, divorce, custody and religion.

It is time to codify the courts' rulings. We need a Parental Rights Amendment.

One case in particular, Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982). comes to mind:

To quote, "Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. The Supreme Court noted its "historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment."

Yet, for most parents, Constitutional procedural protections have not been extended to parents, in fact, the have been legislated out of existence for more transient political purposes, for example, domestic violence. Domestic violence restraining order are not issued in criminal court since domestic violence is a matter before a criminal judge. When was the last time that a married couple was dragged before a "family court" judge for an incident of domestic violence? They are not. They go before a criminal judge, where Constitutional due process rights are upheld. Not in family court, however.

But if you are getting divorced, suddenly domestic violence becomes not a "real crime" but a tactic to keep children away from one parent or the other. In criminal court, you have the 6th amendment right of confrontation and physical evidence must be produced for a crime to have been committed. The evidence must be "clear and convincing" in most cases, and in some "beyond a reasonable doubt". In family court, this evidence standard is ignored.

"Clear and convincing evidence" is evidence that is not self-contradictory or vague and tends to prove the fact for whose proof it is tendered. It would normally involve not only an unequivocal allegation as the central fact but be accompanied by accurate peripheral detail which would allow the court to see that the evidence is consistent with the external factual matrix, of which the nature is known independently of the witness, " so says my friend Barbara C. Johnson of False Allegation.com.

The Santosky decision held that a "clear and convincing" proof standard is constitutionally required in parental termination proceedings.

Santosky, 102 S.Ct. 1388, 455 U.S. 745, 769-770 (1982). "Few forms of state action are both so severe and irreversible." Id. "The Constitution of these United States is the supreme law of the land, any law that is repugnant to the constitution is null and void of law." Id.

"`The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.'" Youmans v. Ramos, 429 Mass. 774, 777 n. 7 (1999), quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

To quote another case:

"The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by [the First] amendment and Amendments 5, 9, and 14." Griswold v. Connecticut, 381 U.S. 479 (l965).

So where does that leave us here in the United States of America? In the 50 state, Puerto Rico and other Territories? According to the many state laws enacted, almost nowhere. The states have gobbled federal dollars to enforce court-ordered "supervised visitation and court ordered child support payment, and there is no incentive for them to stop.

Stop to think about it. If the federal judiciary is saying that what the states legislatures and state courts are doing is wrong and illegal, then why does the federal legislature keep creating piggy bank legislation to do just what the federal judiciary says is un-Constitutional?

The answer is simple, we need state laws that mirror Constitutional law regarding civil rights, and due process rights that the US Supreme Court states that "we the people" have.

It is time for state parental rights amendments.

California Parental Rights Amendment

Section 1. The right of biological parents to direct the upbringing of their children, and to the care, companionship and society of their children is a fundamental right.

Section 2. The right of children under age 18 to the care, companionship, and society of their biological parents is a fundamental right.

Section 3. The state of California, nor any administrative, judicial, executive or legislative act, directive, order or rule or ruling shall infringe upon these rights without demonstrating evidence beyond a reasonable doubt in a jury trial that such a fundamental rights be abridged except in cases of criminal neglect, abandonment or abuse. No governmental act or acts now in existence can be created to supersede, modify, interpret, or apply to the rights guaranteed by this article.