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| 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…
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
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.
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.
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
Children need both parents after a divorce in every country on earth women who honor this statement deserve to be honored and treated with respect .
ReplyDeleteHOW DID CHILDREN OF DIVORCE GET STUCK WITH THE VISITATION PLAN THAT AFFORDS THEM ACCESS TO THEIR NON-RESIDENTIAL PARENT ONLY ONE NIGHT DURING THE WEEK AND EVERY OTHER WEEK-END?
ReplyDeleteWhat is the research that supports such a schedule? Where is the data that confirms that such a plan is in the best interest of the child?
Well, reader, you can spend your time from now until eternity researching the literature, and YOU WILL NOT DISCOVER ANY SUPPORTING DATA for the typical visitation arrangement with the non-residential parent! The reality is that this arrangement is based solely on custom. And just like the short story, "The Lottery," in which the prizewinner is stoned to death, the message is that deeds and judgments are frequently arrived at based on nothing more than habit, fantasy, prejudice, and yes, on "junk science."
This family therapist upholds the importance of both parents playing an active and substantial role in their children's lives----especially in situations when the parents are apart. In order to support the goal for each parent to provide a meaningfully and considerable involvement in the lives of their children, I affirm that the resolution to custody requires an arrangement for joint legal custody and physical custody that maximizes the time with the non-residential----with the optimal arrangement being 50-50, whenever practical. It is my professional opinion that the customary visitation arrangement for non-residential parents to visit every other weekend and one night during the week is not sufficient to maintain a consequential relationship with their children. Although I have heard matrimonial attorneys, children's attorneys, and judges assert that the child needs the consistency of the same residence, I deem this assumption to be nonsense. I cannot be convinced that the consistency with one's bed trumps consistency with a parent!
Should the reader question how such an arrangement can be judiciously implemented which maximizes the child's time---even in a 50-50 arrangement----with the non-residential parent, I direct the reader to the book, Mom's House, Dads House, by the Isolina Ricci, PhD.
Indeed, the research that we do have supports the serious consequences to children when the father, who is generally the non-residential parent, does not play a meaningful role in lives of his children. The book, Fatherneed, (2000) by Dr. Kyle Pruitt, summarizes the research at Yale University about the importance of fathers to their children. And another post on this page summarizes an extensive list of other research.
Children of divorce or separation of their parents previously had each parent 100% of the time and obviously cannot have the same arrangement subsequent to their parents' separation. But it makes no sense to this family therapist that the result of parental separation is that the child is accorded only 20% time with one parent and 80% with the other. What rational person could possibly justify this?