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How the legal system often ignores the constitutional rights of parents

How the legal system often ignores the constitutional rights of parents

At Above the Law, Sam Wright notes that family law bureaucrats and judges routinely ignore the constitutional rights of parents in making decisions on…
WASHINGTONPOST.COM
In a recent post on the notorious Maryland case where authorities have repeatedly detained two children in order to force the Meitiv family to stop them from walking home alone, I noted that the parents have the Constitution and Supreme Court precedent on their side. At Above the Law, experienced public interest lawyer Sam Wright agrees that the parents have the Constitution on their side, but cautions that bureaucrats and lower court judges routinely ignore such petty issues as constitutional rights when it comes to enforcing the their conceptions of “the best interests of the child”:
Over at the Volokh Conspiracy, law professor Ilya Somin notes that the application of child welfare laws is subject to some (seemingly) robust constitutional constraints: there’s case law providing that the Fourteenth Amendment protects the rights of parents to raise their children as they see fit and that it also, in the words of Justice O’Connor’s plurality opinion in Troxel v. Granville, creates a “presumption that fit parents act in the best interests of their children.”


But the reality facing most parents in court is that that “presumption” isn’t actually a thing. Take the experience documented in a well-publicized essay on Salon last year: the author left her four-year-old unattended in a car for a few minutes on a mild day, the police were called, she found herself charged with a crime…. [Her lawyer] warned her that “juvenile courts are notorious for erring on the side of protecting the child” and suggested that fighting the case might lead her to lose her child. Faced with that possibility she, of course, folded. Anyone would…
And that’s been my experience as an advocate too. When I worked for a legal aid organization, one of my tasks was to represent parents in child welfare proceedings. No one in those sad, sequestered courtrooms cited Supreme Court cases; everyone just argued over what was in the best interest of the child….
So parents, be cautious: yes, there’s Supreme Court precedent on your side, but if you find yourself in court then the system’s conception of the “best interests of the child” will likely overrule yours.
Wright also notes that vaguely worded child welfare statutes give bureaucrats wide discretion that they sometimes exert in ways that punish perfectly reasonable and safe parenting practices, a problem I wrote about in this 2012 post.
Wright’s note of caution is well-taken. When I wrote that the Maryland situation “should be a relatively easy case,” I meant that applicable precedent clearly supports the parents, and that they should ultimately prevail if the constitutional issue is raised and courts take Supreme Court precedent seriously. However, achieving such a victory against determined bureaucrats could require prolonged and costly litigation. Sometimes, seemingly novel constitutional issues won’t be taken seriously until a case reaches the appellate level, where judges are more used to addressing constitutional questions. Many parents understandably lack the time, resources, and emotional stamina for a lengthy legal battle. And even a small risk of defeat might be unacceptable if it could mean losing custody of your children or suffering continued official harassment. I don’t blame parents who decide that such a fight isn’t worth it. The purpose of my earlier post was to analyze the relevant constitutional issue, not give advice to parents facing a potentially difficult legal battle with child welfare bureaucrats.
At the same time, it is important to recognize that, in the cases Wright cites, the constitutional issue mostly wasn’t even raised, much less decided. Anxious parents generally give in without putting up a fight. If the issue were raised in a sufficiently egregious case, and effectively pursued by determined parents with strong legal representation, the chances of ultimate victory might well be good. And such a victory could create an important precedent that helps deter similar official misconduct in the future, especially if the government agency is forced to pay damages as well as cease its harassment of the parents.
The Meitiv family appears to be determined, the facts are on their side, and they have excellent pro bono representation from Wiley Rein, one of the top law firms in the Washington, DC area. In addition, public opinion seems to be on their side, as well, at least if media coverage and reactions in the blogosphere are at all indicative (I have not seen any scientific public opinion polls on the subject). It’s possible that the case will be settled, or even that the government will choose to give in rather than risk a precedent-setting defeat. But if that doesn’t happen, the case could potentially set an important precedent protecting parents in the future.
If they do end up setting a valuable precedent, the Meitivs will have undergone a prolonged ordeal most of the benefits of which would accrue to other families rather than their own. Sadly, this sort of scenario is typical of many important constitutional cases. The people directly involved often endure considerable expense and suffering, whereas the benefits of setting a precedent accrue to the rest of us. Consider, for example, the pain endured by many of the parents and children involved in school desegregation cases, or the traumatic experience of the property owners in the Kelo case (which ended in defeat, but resulted in valuable gains for property rights nonetheless).
Such unfairness may sometimes be an unavoidable aspect of the legal system. But we should at least recognize and honor those who make sacrifices to ensure that important constitutional rights get the protection they deserve.
Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" and "Democracy and Political Ignorance: Why Smaller Government is Smarter."

Good Dads Honor Moms: The Best Mother's Day Ever | Fathers

When Law Enforcement Won’t Do Their Job

           According to a Court Ordered Parenting Agreement my son’s father and I are to alternate holiday’s. It also states that at all times, both myself and the father are supposed to let the other know where they are residing, well I have NO CLUE where they live, because My son’s father was evicted (for the second time in a year) while our son was with me during Spring Break.

Shared Parenting

Parents are presumed equal during the marriage. What changed in the equality equation once the marriage ends? Children need and want both parents in their lives, not as visitors, but as active and equal participants. That’s why shared parenting is best for children.  ~~  Read more HERE

A very interesting piece just published by 'Researching Reform'::
I've just posted the following comment:
I should be astonished if there's not a strong causal link between the state's assaults on the nuclear family, and the increasing incidence of mental health problem in children and young adults. Assaulting the nuclear family and financing the lifestyle option of single motherhood have been the default policy directions of successive governments for 30+ years, and accelerated under the Labour administrations (1997-2010) due to the nefarious activities of Harriet Harman and her like.  ~~  Read more… 42 more words

SUPPORT OUR CAUSEChildren’s Rights

How the court system failed me- and my daughter.

Click to visit the original post
I'm about to do something I've never done before. I'm about to give someone, who desperately needs it, a verbal ass-whoopin' right here- publicly- online. Who shall be the target of my tongue beating? My ex-husband, and father of my 12-year-old daughter. The Flaming Liberal Deadbeat Douchebag.
For 10 years, as a single mother, I raised our daughter, full-time. For over 8 of those 10 years, my daughter didn't receive a cent from her father in child support.

WHY IS THIS A CRITICAL ISSUE?

Women approve of shared parenting.

I was delighted to find this initiative on-line: “Leading women for shared parenting” as made known to me by QV, to whom I am grateful and with her permission credit most of the following to.
http://lw4sp.org/about/whyastatement/
“A growing number of children are being raised without the benefit of meaningful engagement with both parents. As contemporary research conclusively demonstrates, a child who effectively loses one of his or her parents through a custody decision, usually the father, is a child at risk for a number of negative personal and social outcomes."
In a recent post on the notorious Maryland case where authorities have repeatedly detained two children in order to...
Posted by Childrens Rights Florida on Sunday, October 18, 2015

Why say NO to attorneys in the Legislature?

Why say NO to attorneys in the Legislature?
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"So live your life that the fear of death can never enter your heart. Trouble no one about their religion; respect others in their view, and demand that they respect yours. Love your life, perfect your life, beautify all things in your life. Seek to make your life long and its purpose in the service of your people. Prepare a noble death song for the day when you go over the great divide. Always give a word or a sign of salute when meeting or passing a friend, even a stranger, when in a lonely place. Show respect to all people and grovel to none. When you arise in the morning give thanks for the food and for the joy of living. If you see no reason for giving thanks, the fault lies only in yourself. Abuse no one and no thing, for abuse turns the wise ones to fools and robs the spirit of its vision. When it comes your time to die, be not like those whose hearts are filled with fear of death, so that when their time comes they weep and pray for a little more time to live their lives over again in a different way. Sing your death song and die like a hero going home." (Tecumseh).

American Fathers Liberation: ALL Men’s Rights are Human Rights. ’nuff said http://bit.ly/1JgMgEm

Posted by American Fathers Liberation Army on Tuesday, August 18, 2015

Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.

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