Category: Due Process

Written Testimony to the Mississippi Senate Study Group on Women, Children, and Families by email to WCFStudyGroup@senate.ms.gov and the Mississippi House Commission on Life: oanthony@house.ms.gov, cburnett@house.ms.gov, acockerham@house.ms.gov, kfelsher@house.ms.gov, lyancey@house.ms.gov, smims@house.ms.gov, dmclean@house.ms.gov, mmcgee@house.ms.gov, dgibbs@house.ms.gov, jford@house.ms.gov

by Lt. (Ret.) James H. Hays West Point, MS Prepared Sept. 11, 2022

I want to start by thanking Senator Nicole Boyd, Chair and Honorable Senate Committee Members for taking this testimony on this most important topic.  I am a 65 year old Retired NYS Environmental Conservation Police Lieutenant with 33 years of Law Enforcement experience in various agencies, a U.S. Army Veteran, and a Semiretired Parental Rights Activist now closing in on my third decade of advocacy on behalf of parents and families. Based upon my advocacy and studies of the issues I obtained a Bachelors Degree in Family and Society from the State University of New York Empire State College and have sat on panel discussions, attended conferences, and presented testimony to the NYS Legislature and the NYS Court System. I have over 1000 hours of individual and group counselings for parents denied access to their child.  I’ll include a full list of my bona fides at the end of this testimony.

Bias against fathers:

When I read of the formation of this committee in Y’all Politics I was saddened to see that fathers were excluded from the discussion and that the focus was on women ahead of children. You will note I included a 2005 open letter appealing to the parents of America and another to Elected Officials (pg.2 and 11) regarding the destruction of the American Family due to the removal of fathers from them.  Indeed, the negative consequences for children of a father absent family was well known in 1995 when I began my advocacy. The negative outcomes for children and the impact on Mississippi was recently discussed in Dads Matter: the Taxpayer Cost of Fatherlessness unfortunately only suggesting a “father figure” program to address the issue.  Auditor White received immediate pushback from Representative Zakiya Summers who called it “the so called fatherlessness issue” claiming the emphasis was on traditional roles, not on individuals.   

Unfortunately both White and Summers, as is the committees focus, are off the mark as the issue IS about biological fathers being involved in their children’s lives. I direct you to Fatherneed by Kyle D. Pruett and suggest a copy be obtained for the committee.  I also direct you to the Boy Crisis web site at https://boycrisis.org and the book by that name which addresses the problems of families with fathers absent. The need for an active involved biological father is important for both boys and girls and it contributes greatly to their early development and improved outcomes later in childhood and in life.

Bias against shared parenting arrangements:

Sen. Boyd is quoted as saying a focus is on growing the child care workforce and “looking at how we can help women get back in the workforce.”  Might I suggest an active and involved father coparenting which would allow this?  Karen DeCrow, past President of the National Organization for Women (NOW) advocated for shared parenting to allow women the freedom to pursue career and family at the same time. She was also the attorney who argued for the inclusion of changing tables in men’s rooms on behalf of father organizations in the fight to allow both parents involvement in emotionally and physically raising their children.  Why is there no encouragement for couples to marry, cohabitate, or work out a shared parenting plan to benefit them and their child?

I’m not sure about the level of knowledge in the MS Legislature regarding Marxism and its focus on destroying the nuclear family.  Both communist Russia and socialist (NAZI) Germany viewed both parents as workers and the children wards of the state and I am honestly wondering how does the system where fathers are sperm donors and assessed “child support” paid to the government and mothers are returned to work with the children in institutional care differ from the socialist and communist systems? 

As a member of the general public I am interested in answers to all of these questions.  Are there any studies or evidence that a woman returning to work and putting her child in day care makes her happier?  The child happier?  Why do we look to subsidize day care but not to support the active involvement of a mother and a father in raising their child?  Is society served by having a “single mother” and an excluded father with a child raised institutionally? Who is it good for individually and at what expense to the other parties?  At what expense to society?

A Mississippi father:

Before I continue further I want to introduce you to a Mississippi father I met recently.  Joe (not his real name) related his father story to me thus;

“My wife decided she didn’t want to be married anymore and we got divorced but kept it amicable.  We get along for the kids, 2 daughters. She ended up getting a boyfriend and before long she ended up pregnant but was unwilling to get an abortion. The boyfriend didn’t want kids and advised he would have nothing to do with the kid.  When I go to get my girls I couldn’t leave the boy out so I started taking him also. I’m now the only father the kid knows but what are you going to do?” 

I asked about child support, curious to know how the system worked in MS and he responded;

“It’s weird, but we have been getting pressured to pay child support through the system even though I pay direct and am not behind.  We have a good relationship regarding the children so why mess with the arrangement.” 

When I told him that under Title IVd of the Social Security Act the federal government reimburses the states for each child support order and since he was paying direct they don’t get any reimbursement in his case, he said, “well, that explains it.”

Excluding fathers nurturing and emotional support:

The aforementioned abandonment of parental duties by the boyfriend in the Joe story is the exception and not the rule.  80% of out of wedlock fathers are at the hospital at the time of birth and they are pressured to take responsibility for their children.  Unfortunately, they are not advised that there will be no access enforcement for parenting time for them and worse, should it be established at a later date that they are NOT biologically the father they CANNOT escape the financial responsibility even if it is proven by DNA testing.  The government has defined a “responsible father” as a sperm donor who pays his “child support” on time and in full.

Unequal responsibility:

Auditor White was quoted as saying, “Don’t want to care for the baby you fathered? Just walk away, we won’t criticize.”  Further stating, “By teaching people they don’t have to take responsibility for their choices, and deserve to be saved from the consequences, they are training people to think of themselves as victims.”  But actually we have a dual system in place where fathers are held responsible and mothers treated as helpless victims not responsible for their actions.  A father who doesn’t pay child support is labelled a “deadbeat,” this in spite of the fact that multiple studies over time have shown the number one reason a father doesn’t pay is poverty, ironically impacting men of color more as they have a higher per capita poverty rate. 

I’ll save my tirade against the pharmaceutical industry which holds back reversible male contraceptives so as to maximize income from female hormonal birth control methods but will point out that pregnancy prevention has been placed almost solely on women, and here women have failed greatly even with a multitude of options available to them.  Sen. Boyd points out that many pregnancies, and abortions, occur in women at higher educational levels and wants to enhance pregnancy prevention education for these women.  I would hope that, like the mother in Joe’s story, these women know how babies are made.  Perhaps if we stopped subsidizing single mother homes and giving the states perverse incentives to make single mother homes by the federal reimbursement standards we wouldn’t have so many unwanted pregnancies?

Outdated get the deadbeat dad rhetoric:

Attorney General Lynn Fitch is vocal about tightening down on “child support” enforcement “90% of which are men” and “maximize child support” is part of the committees agenda.  Right now if you are behind on child support you are turned in a a credit risk, paychecks are garnished up to 65%, checking and savings accounts and tax refunds can be seized, drivers licenses and vehicle registrations can be suspended as can fishing and hunting licenses, you can be incarcerated, and if you cross state lines in arrears (even to get a better paying job) you are a felon.  Ironically, incarceration is considered “a voluntary reduction in income” and the child support owed accumulates while a man is incarcerated.

Pray tell AG Fitch, and I ask this committee also, what’s left to do?  Tar and feather or some water boarding?  Perhaps a reeducation forced labor camp?  Prison and solitary confinement? Like in the Joe story, a father who has parenting time with his children is more apt to pay his child support on time and in full.  And a child living with his biological father gets 100% of his financial support, as does the mother who lives with them.  If she isn’t working and he isn’t working she gets the kid and welfare and he gets jail. Where’s the equal rights and responsibilities here?

Bias against fathers in custody awards?

I haven’t looked at Mississippi’s parenting time awards but as AG Fitch has child support at 90% of father payers I’ll note that is a reflection on the mother custody rate in MS.  I see no shared parenting laws on the books and the National Parents Organization gives MS an “F” rating noting its lack of presumptive time offsets violates federal standards (link to report here, https://www.sharedparenting.org/csreportcard).   I would ask this committee to look at shared parenting legislation and presumptive offsets to child support to be consistent with federal guidelines and to ensure that competent quadrennial are conducted in a timely fashion.

Maintain fathers rights pre-adoption:

The look to ease adoptions and foster care needs to be balanced by mandatory father acceptance of the adoption.  No better argument for this can be had then the book “Finding Fish” or the movie of the book “Antoine Fisher.”  Taken from his junkie mother Antoine is beat and sexually abused in foster care and then later in life he finds out that his father, and the fathers extended family, was living in the city he grew up in and was ready, willing, and able to take him in. Excluding fathers excludes an entire family tree. If we foster the involvement of BOTH parents then should something go wrong we have a much greater chance of extended family being available for foster care.

Perverse incentives for out of wedlock birth’s:

As currently in place the system presents perverse incentives for a woman to have multiple children with multiple fathers.  Two children with one father garners 20% of adjusted gross income but if she has 2 children with different fathers then she garners 14% of the gross income from each of them.  Further, she can live with a 3rd man rent free and his income or free rent is NOT used to offset the child support paid nor to reduce her welfare benefits if any.  Nor is there an offset for the time that they have their children, the emphasis and definition of a “good father” is paying child support on time and in full and not on nurturing and raising your child.

I note here that “child support” is a misnomer as the system was developed to reimburse federal coffers for aid paid out to single mother homes.  As such it is a per child excise tax based upon the fathers income and not on the cost of raising a child.  The system was a boondoggle as it tried to get money from poor fathers who had no ability to pay so it was broadened to cover divorced fathers, most of whom were already paying on time and in full as payments were tied to access to their children.  The federal system removed that, the “child support” is owed regardless if the mother withholds access and 50% of mothers ADMIT to restricting a fathers access.

“Deadbeat Dad” myth debunked in the 1990’s:

The deadbeat dad myth was debunked in the late 1990’s by Sanford Braver who reported his federally subsidized studies in his book, “Divorced Dads: Shattering the Myth’s.   Although published in 1995 the book is relevant today and should be available for the committee to read and reference.  It is ironic that a 25 year old book is still relevant to the issues faced and speak volumes to how misinformation has been applied to the problems faced by families.

Mississippi’s divorce, alimony, child custody, and child support laws outdated:

In NYS, as President of the Coalition of Fathers and Families NY (FaFNY) I fought Unilateral No Fault Divorce in NYS unless there was a statutory and enforceable protections for BOTH parents rights which includes the child’s RIGHT to both parents and their extended families. NYS was the last state in the nation to enact No Fault Divorce.  After review of Mississippi’s divorce, child custody, and child support laws I was displeased to see that they are virtually the same as NYS, nay – worse.  Shamefully, MS is in lock step with the left coast with no statutory protections for parental rights, no protections for the marital contract holding persons responsible for destroying the family, and a focus on holding men financially responsible, behind them the daddy state, for the irresponsibility of women.

Fathering Changes Men for the Good of Society:

Many young man are a bit wild and marriage itself does nothing to curtail this.  It is the addition of children which refocuses men on their responsibilities to them, their wife, and further to society.  This is the norm and not the exception.  Chapter 8 of “Fatherneed,“ ”How Fathering Changes Men for Good” addresses this and should be mandatory reading for the committee.  While you focus on “Women, Children, and Families” you forget that we are social beings each reliant on the other for our happiness.  When we reduce the family into its individual organisms we remove the natural social environment and with it the meaning and purpose of life.  Mothers reduced to workers focus on themselves before their children.  Fathers reduced to “visitors” focus on themselves and not their child and potential spouse.  Ultimately it is the child which loses.

God, work?, country. or is it God, family, country?

The focus on individuals working has long range negative impacts on society as a whole.  Has any man or woman gone to their grave stating “I wish I had spent more time at work?”  Does any child wish their parents spent less time with them?  Are your co-workers going to give you care and comfort when you are sick?  Dying?  Is a thanksgiving dinner at a restaurant with a boyfriend or girlfriend du jour preferable to a trip back to grandma’s and a packed table of extended family members including grown and young children?  Will the child care facility relate the family history to your child? Your Religion?  Beliefs? Morals?  Are the hugs to a child by a paid caregiver the same as a parent or grand parent?  Will they tell humorous or sad stories about your siblings, parents, and grand parents?

Government interference in the family, STOP blaming men:

In the 1950’s the rate of father absence in black families per capita was lower than white families, this in spite of Jim Crow laws and prejudices against them.  By the mid 1960s Daniel Patrick Moynihan wrote the Moynihan Report (The Negro Family and the Case for National Action) as the African American household father absent rate had increased to 25% which was considered a crisis.  In it he described the “Moynihan Scissors” where typically as unemployment went down filings for Aid to Families with Dependent Children (AFDC) went down also. But in 1963 in the African American population unemployment went down and the filings for AFDC went UP!  This was the beginning of the daddy state and the subsidized single mother homes.

From the 1960’s to today we can see the ever increasing federal government interference in the family and parental rights for BOTH parents.  As the federal government has continued subsidizing single mother homes we have seen a steady increase in them corresponding to ever increasing interference.  Mothers have been turned into “baby mama’s” and fathers have been turned into visitors and “father figures”.  The African American single mother rate hovers near 80% of all homes and 20% of White homes, 5% of them single fathers.  Clearly our laws, policies, and procedures are taking us in the wrong direction.

The Moynihan Report was widely assailed for focusing on and blaming Black men.  Unfortunately the “blame men game” continued into the 1980’s and 90’s with the creation of the mythical “deadbeat dad” where it was OK to label Black Men as such as long as it also included Asian Men, Hispanic Men, and White Men.  When “Divorced Dads: Shattering the Myth’s” came out it was widely ignored by policy makers, especially by unelected “experts” who doubled down on their cognitive dissonance and who continued to focus on helping “single mother” homes while the policies had the effect of removing fathers to the crisis levels we see today. The “deadbeat dad” roundups continued of blue collar men, mostly men of color, assessed at rates they could never pay while “single mother” homes were subsidized.

STOP BLAMING MEN!  The number one reason a father doesn’t spend more time with his children is a limiting court order.  Number two is a mother who interferes with his time with the child.  In spite of these restriction fathers have continued to be there for their children and many manage to stay involved.  There are a multitude of state and federal organizations working to help disenfranchised parents stay involved yet I know of NONE which advocate for the removal of mothers and sole custody to be placed with fathers.  Most, Like the National Parents Organization argue for SHARED PARENTING regardless of the marital status of the parents as absent 2 live in biological parents this is the best arrangement for children.

Flaws in Title IVd – federal child support:

Title IVd of the Social Security Act provides perverse incentives to create single parent homes and is a large part of the problem.  The federal government reimburses states for establishing paternity (even if incorrect), number of child support orders entered (incentive to have one non residential parent paying through the system), amount collected versus amount owed and collection of arrears (incentive to set high awards leaving the poor to fall behind and then collect the arrears), and the cost of the program (collections versus expenses).  The program provides NO incentive for both parents to live together (married or not) and to share parenting with both providing financial and emotional support.

It should be noted that there is NO accountability to how the support is spent nor any accountability to allow access to the non custodial parent to spend emotional support time with the child.  Based on the income shares models and not cost shares (the actual costs of raising a child in that state) it excludes the costs incurred by the non custodial parent to raise their child.  As previously stated Mississippi has no set proportional offset for increased residential times with the children (contrary to federal guidelines) thus moving the responsibility for physical raising of a child to one parent and forcing the other parent in a financial provider only.

Worse, the income transfers are in post tax dollars.  In other words the payer bears the tax responsibility for the receiver.  A custodial mother with 2 children earning $25,000 a year gross and a non custodial father earning $50,000 a year gross can see after tax net incomes of $36,000 and $9,000 respectively.  It is easy to see that poor non custodial fathers, mostly men of color, will be driven to poverty and be denied any government benefits as they are based on his pre-tax salary.  Even if he does have liberal access he will be unable to be there for his children as he’ll be scrambling to earn enough to feed, house, and clothe himself, much less provide space for 1 or 2 children.

Denial of parental rights without cause:

The committees focus on the mother is contrary to the US Constitution as it denies the fathers parental rights.  SCOTUS has ruled in multiple cases that parental rights are fundamental rights yet this committee would deny the fathers rights outright and without cause yet while still holding him responsible (maximize child support), responsibilities without rights, taxation without representation.  I seem to recall the founding of the country was based upon similar injustices?  Both parents need to be held equally responsible for a child created by their union and the child has a right to BOTH parents financial and emotional support.

Ironically, the denial of parental rights by family and/or matrimonial courts across the U.S. (Chancery Courts in MS) has emboldened the courts to interfere with all parental rights regardless of the marital status of the parents.  It has served to undermine parental rights when dealing with all other parts of government.  Unelected bureaucrats can insert their view of “the best interest of the child” over those of the parents which is reinforced by a judge inserting their opinion in place of the parents.   

“It is easier to build strong children than to repair broken men.”  Frederick Douglass

Focus on families:  

While the committee is focusing on young families with children under age 3 we should understand that the first pregnancy is the seed which can grow a larger family. Encouraging a young couple away from marriage, cohabitating with their child, or entering into a mutually beneficial shared parenting is to force a child into a broken family.  To quote David Levy, founder of the Children’s Right’s Council and author, the Best Parent is Both Parents and both parents and their extended families are the right of each and every child.  The harm to children in single parent homes is widely recognized and to deny children at a minimum shared parenting is to risk their, and societies future.

Conclusion:

The safest place for a man, woman, and child is in an intact 2 parent (often married) home. It provides economy of scale and increased financial security while alleviating one parent to bear all the child rearing responsibilities.  Absent that the best arrangement for a child is to have the active involvement of both parents, a shared parenting arrangement with income transfers kept to a minimum and correlating to the costs of raising that child. 

2 biological parents living together with their child reduces the need for financial support from the government and as such this arrangement should be encouraged.  Absent that the parents should negotiate a shared parenting arrangement to provide financial and emotional support for their child and each other.   

In an unplanned and unwanted pregnancy BOTH parents must sign off on their parental rights before the child displaced for adoption.

Any support programs available for “single mother” homes must be made available to intact 2 parent (married or not) homes and also to BOTH parents in a shared parenting arrangement.

In closing I want to thank the committee and Chair, Sen. Nicole Boyd for allowing me to submit testimony as part of the official record.  My recommendations follow in appendix A (pg. 14) and the draft Parental Rights and Responsibilities Act in appendix B (pg. 16).  I remain available for clarification and discussion of any points within this testimony which I submit as an interested Mississippi citizen

APPENDIX A

RECOMMENDATIONS:

1. Mandatory at birth DNA testing for out of wedlock births.  

Mandatory at birth DNA testing for out of wedlock births would alleviate the problems with false paternity, that is later “Jerry Springer” domestic strife should it come out at a later date whether true or not.  By making it mandatory the conflict between a requesting father and mother are removed and additionally, economy of scale says the price will come down which can be born by the higher earner of the parents to be reduced by any future child support payments.  Fathers can still accept paternity at the hospital and be on the birth certificate but it will not be legally binding until results are presented to the court and affirmed.

2. A mandatory rebuttable presumption of shared parenting regardless of the marital status of the parents.  

A mandatory rebuttable presumption of 50-50 shared parenting does not necessarily mean that the parents will have 50-50 physical custody (although many do opt for a week to week exchange of custody).  What it means is that the parent start negotiations on a parenting plan understanding if they do not work out a plan it will revert to a 50-50 split of time.  

Further, child support should have a proportional offset based on the amount of time each parent has the child.  This is mandated in federal guidelines on child support which Mississippi is missing in its laws.  Child support payments should further take into account the actual cost of raising the child and what direct financial expenditures the parents are making towards the child.

Regardless of their marital status, reproductive status, or birth control used young people should understand that if a pregnancy occurs because of their sexual liaison then both parties will be held responsible and have to deal with each other until the child reaches majority at 18.  This should cause young people to look at their partner choice and casual liaisons in a different light.  It holds both equally responsible for the agreed upon act which produced the child.

Shared parenting has a further bonus in that states that enact shared parenting see a drop in the divorce rate.  A parent can’t use divorce and child custody as a financial windfall, a guarantee to get the house, custody of the kids, and child support payments providing a perverse incentive to file a unilateral divorce. 

3. Enact the Parental Rights and Responsibilities Act (see Appendix B)

The Parental Rights and Responsibilities Act was designed as an amendment to the US Constitution but in original form it excluded “non custodial” parents which prevented it from getting widespread support.  ACFC/FaFNY presented an updated version including ALL parents.  This protection of parental rights in the face of interference in parental decision making for their child in areas such as schooling and medical decisions has brought to light the erosion of all parental rights to make decisions for their child.  

The Act should be codified into law at both the federal and state level and consideration should d be given to Constitutional Amendments at both the state and federal level.  As written the Act does NOT interfere in states rights to manage matrimonial and child custody matters.

4. Promote marriage by reforming Mississippi’s alimony laws.

Mississippi’s alimony laws appear open ended with no clear guidelines subjecting people to the whims of the individual court they appear before.  Unclear laws foster increased litigation, clogging courts and wasting family assets on legal fees.  Further, it is difficult to promote marriage when there are no protections for the parties involved.  

Alimony should be a temporary payment to allow a non working spouse to gain education and or training and meaningful employment.  Sen. Boyd points out that many unplanned pregnancies are among college educated women.  Women with a college degree earn 104% of their equals and increasingly they find themselves paying alimony as they are the monied spouse, often after an attempt to do right by marrying the father of their unplanned pregnancy which then doesn’t work out.

5. Promote birth control education for men and women equally.

Mississippi women who want an abortion will be able to travel to another state (Illinois within an 8 hour drive of most of Mississippi) regardless of the wishes of the father.  Especially the college or working women who have more means.  Additionally, women can, and do, lie about their reproductive status to get pregnant on purpose, again regardless of the wishes of the man.  Indeed, even stolen sperm from a discarded used condom results in responsibility on the man’s part if a pregnancy occurs.  Birth control education for men and women needs to be truthful and directed at both.

As the baby boomer generation of judges retire out they are bound to be replaced by younger judges without the woman as caregiver-father as financial provider mindset and are bound to move towards shared parenting arrangements regardless of legislation.  Fathers Right’s groups are getting better at gaining full or partial physical custody for fathers.  

Young people need to be educated on the fact that a child will result in BOTH of them being held responsible until the child reaches majority.  Further, failure to come to a parenting agreement will result in them both expending resources on litigation and losing control of decision making to a Judge.

Appendix B

(Q. & A. follows text of the Act)

Parents’ Rights and Responsibilities Act of 2022

_______ CONGRESS   _____ Session

To protect the fundamental right of a parent to the care and custody of a child and to direct the upbringing of a child, and for other purposes.

IN THE SENATE OF THE UNITED STATES 2022 A BILL

To protect the fundamental right of a parent to the care and custody of a child and to direct the upbringing of a child, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Parents’ Rights and Responsibilities Act of 2022.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS- Congress finds that – the Supreme Court has regarded the right of parents to direct the upbringing of their children as a fundamental right implicit in the concept of ordered liberty within the 14th amendment to the Constitution, as specified in Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510 (1925); the right of parents to the care and custody of their children has been recognized as “a fundamental right protected by First, Fifth, Ninth and Fourteenth Amendments” in Doe v. Irwin, 441 F. Supp. 1247 1251 (D. Mich. 1977), as “far more precious than property rights” and by the Supreme Court as an “essential” right  that protects a substantial interest that “undeniably warrants deference, and, absent a powerful countervailing interest, protection,” in May v. Anderson, 345 U.S. 528, 533 (1953), Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and Stanley v. Illinois, 405 U.S. 645 (1971), and the Supreme Court has held in Troxel v. Granville, 530 US 2000 (99-138), that “The liberty interest at issue . . . the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court. . . .  [I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

(1) this right has been recognized for centuries by the common law, and by the tradition of western civilization.

(2) the role of parents in the raising and rearing of their children is of inestimable value and deserving of both praise and protection by all levels of government;

(3) the tradition of western civilization recognizes that parents have the responsibility to love, nurture, train, and protect their children;

(4) some decisions of Federal and State courts have treated the right of parents not as a fundamental right but as a non fundamental right, resulting in an improper standard of judicial review being applied to government conduct that adversely affects parental rights and prerogatives;

(5) parents face increasing intrusions into their legitimate decisions and prerogatives by government agencies in situations that do not involve traditional understandings of abuse or neglect but simply are a conflict of parenting philosophies;

(6) governments should not interfere in the decisions and actions of parents without compelling justification; and

(7) the traditional 4-step process used by courts to evaluate cases concerning the right of parents described in paragraph (1) appropriately balances the interests of parents, children, and government.

(b) PURPOSES- The purposes of this Act are–

(1) to protect the right of parents to the care and custody of their children and to direct the upbringing of their children as a fundamental right;

(2) to protect children from abuse and neglect as the terms have been traditionally defined and applied in State law, such protection being a compelling government interest;

(3) while protecting the rights of parents, to acknowledge that the rights involve responsibilities and specifically that parents have the responsibility to see that their children are educated, for the purposes of literacy and self-sufficiency, as specified by the Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 (1972);

(4) to preserve the common law tradition that allows parental choices to prevail in a health care decision for a child unless, by neglect or refusal, the parental decision will result in danger to the life of the child or result in serious physical injury to the child;

(5) to fix a standard of judicial review for parental rights, leaving to the courts the application of the rights in particular cases based on the facts of the cases and law as applied to the facts; and

(6) to reestablish a 4-step process to evaluate cases concerning the right of parents described in paragraph (1) that–

(A) requires a parent to initially demonstrate that–

(i) the action in question arises from the right of the parent to direct the upbringing of a child; and

(ii) a government has interfered with or usurped the right; and

(B) shifts the burdens of production and persuasion to the government to demonstrate that–

(i) the interference or usurpation is essential to accomplish a compelling governmental interest; and

(ii) the method of intervention or usurpation used by the government is the least restrictive means of accomplishing the compelling interest.

SEC. 3. DEFINITIONS.

As used in this Act:

(1) APPROPRIATE EVIDENCE- The term `appropriate evidence’ means–

(A) for a case in which a government seeks a temporary or preliminary action or order, except a case in which the government seeks to terminate parental custody or visitation, evidence that demonstrates probable cause; and

(B) for a case in which a government seeks a final action or order, or in which the government seeks to terminate parental custody or visitation, clear and convincing evidence.

(2) CHILD- The term `child’ has the meaning provided by State law.

(3) PARENT- The term `parent’ has the meaning provided by State law.

(4) RIGHT OF A PARENT TO DIRECT THE UPBRINGING OF A CHILD-

(A) IN GENERAL- The term `right of a parent to direct the upbringing of a child’ includes, but is not limited to a right of a parent regarding–

(i) directing or providing for the education of the child;

(ii) making a health care decision for the child, except as provided in subparagraph (B);

(iii) disciplining the child, including reasonable corporal discipline, except as provided in subparagraph (C); and

(iv) directing or providing for the religious teaching of the child.

(B) NO APPLICATION TO PARENTAL DECISIONS ON HEALTH CARE- The term `right of a parent to direct the upbringing of a child’ shall not include a right of a parent to make a decision on health care for the child that, by neglect or refusal, will result in danger to the life of the child or in serious physical injury to the child.

(C) NO APPLICATION TO ABUSE AND NEGLECT- The term `right of a parent to direct the upbringing of a child’ shall not include a right of a parent to act or refrain from acting in a manner that constitutes abuse or neglect of a child, as the terms have traditionally been defined and applied in State criminal law.

SEC. 4. PROHIBITION ON INTERFERING WITH OR USURPING RIGHTS OF PARENTS.

No Federal, State, or local government, or any official of such a government acting under color of law, or any other party, shall interfere with or usurp the right of a parent to the care and custody of the child of the parent or to direct the upbringing of the child of the parent, unless that parent has been duly convicted of the abuse or neglect of that child as defined and applied in State criminal law; or that parent has been duly found to have abrogated or violated the marital contract with the other parent of that child as defined and applied in State law.

SEC. 5. STRICT SCRUTINY.

No exception to section 4 shall be permitted, unless the government or official is able to demonstrate, by appropriate evidence, that the interference or usurpation is essential to accomplish a compelling governmental interest and is narrowly drawn or applied in a manner that is the least restrictive means of accomplishing the compelling interest.

SEC. 6. CLAIM OR DEFENSE.

Any parent may raise a violation of this Act in an action in a Federal or State court, or before an administrative tribunal, of appropriate jurisdiction as a claim or a defense.

SEC. 7.  ATTORNEY’S FEES.

Subsections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988 (b) and (c)) (concerning the award of attorney’s and expert fees) shall apply to cases brought or defended under this Act. A person who uses this Act to defend against a suit by a government described in section 4 shall be construed to be the plaintiff for the purposes of the application of such subsections.  

PRRA Q. & A.

What is the PRRA?  

The Parental Rights and Responsibilities Act declares that parents’ rights to direct the upbringing of their children are fundamental rights which the government can curtail only under conditions of “compelling interest” and with strict scrutiny.  It stipulates that “No federal, state, or local government, or any official of such government acting under color of law, shall interfere with or usurp the right of a parent to direct the upbringing of the child of the parent.”

What would be the effect of this bill?  

This law has more potential to halt the destruction of the family than any measure that government is now undertaking or can possibly undertake and to do so safely, with minimum government interference, because it guarantees the most essential foundation of the family: the parent-child bond.  It is fully compatible with other measures now being proposed to strengthen the family, but it will have far greater efficacy.  It will do more to hold marriages together than expensive and questionable marriage psychotherapy programs proposed by the Bush administration.  It will do more to promote and restore fatherhood than the similarly questionable fatherhood programs of the Clinton administration.  It will do more to strengthen family integrity than futile attempts to censor the media.  It will have more efficacy than programs that nag at people to get married or stay married.  It will do more to reduce divorce than rolling back no-fault laws, and it may even do more to ensure that children have two parents than shared parenting laws (both of which can be circumvented by judges).  Yet it is consistent with all these measures, which can still be pursued at the state or federal levels.

Would this act federalize family law?  

No.  States could still enact any laws they wish on marriage, divorce, and custody, and state courts would remain the venues for handling these matters.  But they would have to respect the parent-child bond and could not disrupt it without compelling cause, and the federal judiciary would be explicitly required to guarantee that bond.

Would this bill create new rights or a new protected class of “victims”?  

No.  It would simply codify rights that have been recognized in Anglophone countries for centuries.

What is the origin of the PRRA?  

The original PRRA was introduced in 1995 to protect home-schoolers and other intact families from school authorities and other government officials who might usurp their right to raise their children as they see fit.  But the original bill had a major weakness:  It exempted from its protection parents who lose their children through involuntary divorce (or false allegations of child or domestic abuse).  In other words, the proposed law stipulated that the government could not interfere with or separate children from a parent unless the other parent requested it by filing for divorce, in which case the government could seize control of the children with no further explanation.  By specifically exempting divorce, the proposed law could even have been interpreted as endorsing government-enforced separation of children from parents.  We propose to close this loophole (Section 7 of the original bill), so that the act does protect parents and children of divorce.

Perhaps most important, it will accomplish all this not by involving government in the family but by keeping government out of the family.  

It may not solve every family problem — that is for families to do themselves — but it will get the government out of the family so they can do so.  Government’s role will be limited to the negative one of guaranteeing and protecting family integrity against external violation by anyone, including itself.

Why should it be enacted when it failed before?  

The original bill had support among professional pro-family groups: home-schoolers, family advocates, social conservatives, the religious right, and some libertarians.  But a huge constituency of parents themselves, who could have been mobilized to support this bill (viz., non-custodial parents and victims of child abuse laws), was specifically excluded from its protections.  The 1995 bill was defeated not only by special interest lobbying (primarily by teachers’ unions), but also by a lack of enthusiastic public support. 

Closing the loophole and including non-custodial parents would create a broad-based coalition, uniting the original bill’s advocates with a much larger constituency of parents themselves, who have watched their authority over their children be not simply eroded by the culture but, more seriously, usurped by the government.

Non-custodial parents, couples who lose their children through spurious child abuse accusations, parents who have their children improperly adopted against their wishes, and others would have a clear stake in this bill.  It would also give the pro-family groups a proactive agenda and place them on the moral high ground as the as the defenders of individual and family rights.

It would also put fathers’ groups in alliance with mainstream political groups.  We would be the vanguard of a parents’ revolt:  Not because we are another groups speaking for parents.  Because we are parents.

Wouldn’t it provoke massive opposition, just like the first time?  

Yes, perhaps even more.  Not only the teachers’ unions but probably social workers’ and other white-collar unions would mobilize against it, and of course feminists.  (On the other hand, blue-collar unions might well sympathize with us.)  But in a sense the whole point is to provoke controversy and create a long overdue national dialogue on the family.  After decades of fatherless children, divorce-on-demand, and government impotence in the face of myriad social problems stemming from these ills, the country is ripe for it.

Family issues are now on the front pages every day.  Even childless people are fed up with the destruction of the family and its huge social and economic costs to us all.  But many are uncertain what can be done about it, and little clear leadership is being provided with this.  Government marriage counseling and fatherhood programs promise solutions but are hopelessly vague about what precisely they can do.  Attacks on pornography and abortion and public schools do not readily translate into clear prescriptions for saving the family.  The country and the world are demanding leadership to rescue the family.

A clear and straightforward statement unequivocally defending the family as the guardian of a private sphere of life and asserting the rights of parents to be left in peace with their children constitutes a principle that would be virtually impossible to  oppose.  Defenders of the family would take the moral high ground and challenge opponents to explain why they oppose such an obviously just, sensible, and universally recognized principle as the rights of parents to raise their children as they see fit and the rights of children not to be torn from the arms of loving parents.

We must not shrink from this challenge.  In a sense, the battle could be almost as important as the bill.  Congress could pass this bill as a resolution tomorrow, and it would sit ignored alongside the case law.  By provoking a national dialogue over the family and mobilizing a grassroots constituency, we would build the structures and watch-dog institutions to monitor the judiciary and bureaucracy and foster a political culture that values parents generally, fathers in particular, families and households as zones free from government intrusion, and children as something other than weapons and tools and justifications for expanding government power.