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 the 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. So now we are here today and parents have been struggling with getting rid of The Best Interest Doctrine. Why might that be? Perhaps because the argument needs to change now. Now the policies are disadvantaging all parties. When this happens, where do we turn? We turn to the protection of individual rights and equal protection of the laws. This is no longer about picking between the parents but instead about applying the rule of law that protects every individual equally so that we can have justice for all. So what are judges supposed to do now? 1. The judge must examine prior opinions that led to the creation of the common law doctrine. In this case, the best interest doctrine. 2. Next the judge should examine any policies in the State that led to the creation of their best interest doctrine. 3. Then the judge should examine the need for the doctrine. This examination should consist of the following: 1. What purpose did the policy of the state have and does the doctrine serve that policy still? 2. Does it still serve the purpose it was originally intended to serve? 3. Is there higher law that has passed since the creation of the doctrine? 4. Is there a consistency issue when you apply the higher law? 5. Is there now a better way to serve this need that the public policy wishes to serve? 6. Does the doctrine need to be abolished to solve the consistency issue? 7. Does applying the doctrine to the case before the court violate any higher principles? 1. Does the doctrine need to be abolished? 2. 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. 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 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. And the States were not required to apply the rights of the U.S. Constitution to the individuals in their State– it only applied to the federal government at first. 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 these rights 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. Check back tomorrow for some more tools! 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.] Be sure to subscribe to our website and receive notices when the new Daily Tool is posted each day. Subscribe here: SUBSCRIBE #fixfamilycourts 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) Website: fixfamilycourts Twitter: https://twitter/fixfamilycourts (@fixfamilycourts) Facebook: https://facebook/pages/Fix-Family-Courts/324146134354536 YouTube: https://youtube/channel/UC_kKO3Xc_UT7ZeNU6OkYK0g Disclaimer: I am NOT an attorney or a lawyer. I do NOT practice law in any federal or State court system. Any information provided by me to you, regardless of how specific, is NOT intended to be legal advice under any state or federal law. I provide research, written strategies, and non-professional personal opinions on the Constitution and State laws as free exchange of politically important information that also serves an important public need and interest allowed under the First Amendment. You are highly encouraged to engage an attorney in your State to help you with the specifics of your legal issues and the law in your State. If you are a pro se litigant then you bear all and full responsibility for understanding the law in your state and acting under the law in your state. Nothing you receive from me is intended to be a “legal” document for purposes of any type of filing in any court. You are free to use my words for your personal non-commercial benefit, or as an aide in petitioning your government for redress of perceived wrongs, if properly cited where appropriate. YOU TAKE SOLE RESPONSIBILITY FOR ANY LEGAL ACTIONS YOU PURSUE AND THE RESULTS THAT YOU GET. I BEAR NO RESPONSIBILITY FOR YOUR RESULTS. MY OPINIONS ARE NOTHING MORE THAN MY PERSONAL NON-PROFESSIONAL OPINIONS OR BELIEFS. I MAKE NO CLAIMS OF LEGAL COMPETENCY IN THE LAW UNDER ANY GOVERNMENT STANDARD OF COMPETENCY IN THE LAW. The information provided above is not a substitute for the advice of an attorney. You should consult an attorney regarding your rights under the law.
Posted on: Mon, 19 Jan 2015 05:57:28 +0000
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