October 21, 2019
Justices of the Supreme Court, Supreme Court of the United States, 1 First St., NE, Washington DC 20543
It has always been my humble opinion that a person not need a law degree nor approval of the Bar to read and understand the U.S. Constitution and Bill of Rights and as I’ll never practice law nor have the opportunity to argue for parental rights in a court of law I thought to write you direct. I’ll save the full legal citations as you are most likely familiar with them and I’ll look to present the facts as they occur on the ground in courts of law to individual citizen’s each and every day. Perhaps it will end up unread in the recycling bin or ‘circular file” but I thought the effort at educating on the injustices in the current state of family law and law practice worth the effort.
The court has long held that parental rights are fundamental rights (Prince v. Massachusetts, Meyer v. State of Nebraska) which should not be removed only after cause and under strict scrutiny and most recently in Troxel V. Granville a “custodial” parents rights were upheld in an action involving grand parents access. However, in Elk Grove v. Newdow the court held that a father didn’t have standing to sue on behalf of his daughter as he was “non custodial”. Both these decisions were wrong as in both circumstances cause was not shown and strict scrutiny was not applied in the removal of parental rights.
The errors occur in misunderstanding how a parent gets the label of “non custodial” and “custodial” parent. Further the error sits in the unconstitutional nature of todays current family regulatory system which provides the incentives to remove the rights of one parent, naming them a “non” parent for financial gain by the state itself. The system is driven by unconstitutional federal policies, which interfere with states rights which are then put into place by a large bureaucracy made up of the states executive and judicial branches which then violates parental rights for financial gain.
Two parents walk into family court with equal parental rights with the interference in the family at the request of one parent who is looking to gain “custody” at the expense of the other parent and which most often is not based on that parents fitness to be a parent. Even though the modern family usually now has both parents working and raising their child as caregivers the courts rely on a rubber stamp cookie cutter approach labelling the mother “custodial” and the father “non custodial”. Worse the father is often labelled a “visitor” and allowed visitation of every other weekend and one mid week after school visit for 4 hours. On top of this, even though he was providing for his children financially, he is now ordered to transfer income to the other parent for “child support”.
In New York State they call this arrangement the “Standard NY Order”. Often the language used in the order is phrased to make the non custodial parent think they can still be a parent involved in raising their child with wording like “joint legal custody”, “the parents will have joint decision making and consult on major decisions” while noting “primary physical possession is with the mother”. But in practice, as every non custodial parent now recognizes, the “consult” can be a flat “no” with no means to litigate or appeal the decision making of the other parent and there is no “joint legal custody” as a non custodial parent has no standing.
Reduced to a few days a month visitor, with no decision making over your child’s actions, doesn’t leave much time for a parent to convey their heritage and beliefs and exclude those you are opposed to. Regardless of an individuals personal opinions on the diametrically opposed religious views in this case, it is not hard to imagine that the beliefs of Michael Newdow were overshadowed by the beliefs of his child’s mother given the disproportionate amount of time he spends with her. The Supreme Court talks a good game of affirming parental rights in Troxel but the Elk Grove case legitimizes the decisions of a lower court to remove Michael Newdow’s parental rights without cause and without strict scrutiny by denying him standing on behalf of his child.
Under the guise of collecting funds from parents who have “abandoned” their children the federal government formed the Federal Office of Child Support Enforcement and mandated that each state have a similar office. Under Title IVd of the Social Security Act the federal government provides perverse financial incentives to the states to make “non custodial” parents by reimbursing for the number of paternity establishments, number of child support orders entered, amount collected versus amount owed, arrears collected, and the cost of the program (collections versus expenses).
Thus states are rewarded for having a larger collection system and more “non custodial;” payers in the system. The income transfer from parent to parent is not based upon the needs of the child but as a percentage of income. Indeed, there is not even an accounting system so the non custodial parent can ensure the money is being spent for the child’s benefit as a “best interest of the child” standard would certainly require. As in the label of “non custodial” parent the income transfer is unconstitutional as it is done as a matter of course, administratively, with no showing cause to interfere in the parents financial decisions for the child such as the child is living in poverty or a failure of the non custodial parent to financially support the child.
Imagine, if you will, you come home to your family and are met at the door by a policeman with a temporary order of protection (TOP) even though aside from a few heated arguments there is no family violence. You are allowed 5 minutes to get your personal items and get out of your house. Any firearms you have are seized by the police and the TOP prevents you from buying firearms. You’ll have to cancel that hunting trip with you father this year. You are denied any contact with your children, even prohibited from attending public school or sporting events. In a pinch you go to your parents for a temporary place to stay. Ironically, you have access to your fathers firearms there. You are advised by the courts to not talk about the case to anyone as a matter of “privacy”.
You file in family court for “visitation” with your children and removal of the TOP. You are given supervised visitation at a facility approved by this court and are advised you have to pay for it. You are ordered to attend alcohol/drug evaluations and anger management classes at a facility approved by this court at your expense. The Judge sets temporary child support with income executions to start immediately. You are given 2 court dates months away, one for custody and another for support. You are advised you have to provide personal and private records and information on demand.
You attend the child support hearing in front of a magistrate. He advises you have to pay, pre tax, 25% of your gross pay for 2 kids and the math reveals you are going to pay 48% of your take home pay. He further advises that you are getting free rent and imputes income for that raising your payments to 55% of your take home pay. Even though you have always kept your kids on your health insurance they issue an order to do that. He further advises you weren’t paying enough these past months and are in arrears for $2000. You are not allowed to pay it off directly and advised the system automatically deducts arrears according to their formula. Once the arrears are turned into the state child support office they automatically turn you in to credit reporting agencies and issue an order to seize your tax return if any and you passport is revoked.
At the initial hearing the Judge advised the parties if it went to trial “nobody would be happy” and he told the attorneys to settle it. The attorney tells you as a father, a “non custodial” parent, you’ll get the “standard order” of every other weekend, one day mid week visit, two weeks in the summer and alternating Christmas and Thanksgiving. You won’t do better at trial, in fact it’ll be worse and you could lose contact with your children. Bankrupt, fearing the total loss of your children, you go to court and cut the deal.
All of this is widespread and occurs in this fashion in virtually every family court across the United States on a daily basis. You can visit any parental rights, fathers rights, or mothers rights web page and see thousands upon thousands of cases complaining of this treatment in whole or in part. In addition to the loss of your parental rights your rights under the 1st, 2nd, 4th, 5th, 6th, 9th, 10th, and 14th amendment to the U.S. Constitution have been violated.
Those of us parental rights advocates who are originalists have long argued that a court which removes our parental rights without due process and the federal system which transfers our income to the other parent under the guise of supporting our children are both unconstitutional acts. In Elk Grove Justice Stevens states;
“One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations. Long ago we observed that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 136 U.S. 586, 593— 594 (1890). See also Mansell v. Mansell, 490 U.S. 581, 587 (1989) (“[D]omestic relations are preeminently matters of state law”); Moore v. Sims, 442 U.S. 415, 435 (1979) (“Family relations are a traditional area of state concern”). So strong is our deference to state law in this area that we have recognized a “domestic relations exception” that “divests the federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992). We have also acknowledged that it might be appropriate for the federal courts to decline to hear a case involving “elements of the domestic relationship,” id., at 705, even when divorce, alimony, or child custody is not strictly at issue:
“This would be so when a case presents ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.’ Such might well be the case if a federal suit were filed prior to effectuation of a divorce, alimony, or child custody decree, and the suit depended on a determination of the status of the parties.” Id., at 705—706 (quoting Colorado River, 424 U.S., at 814). Thus, while rare instances arise in which it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue, see, e.g., Palmore v. Sidoti, 466 U.S. 429, 432—434 (1984), in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.”
The court itself is making contradictory statements and rulings, especially in light of the unconstitutional federal governments interference in the family. If there is deference to the states then how is the federal office of child support enforcement not unconstitutional? Here the federal government under Title IVd of the Social Security Act mandated that states have a system in place to collect child support but did not mandate that it include strict scrutiny before denying one parents their parental rights by naming them a non custodial child support payer. Which as we see in the Newdow case results in the removal of all parental rights without cause.
In the Troxel case the grand parents were acting en loco parentis for their son, a “non custodial” father who’s case mirrors the general treatment of the courts outlined above. Additionally, suicide among males increases about ten fold after a divorce/separation due to the denial of due process and the violation of rights. Certainly the fathers reliance on his parents , living in their house and exercising “visitation” there, evidenced the grand parents en loco parentis status. By rendering a decision in the Troxel case the U.S. Supreme issued a de facto child custody decision denying Troxel the right to continue en loco parentis.
Were we in a system in which rights were given to the people by the government and it was mandated that government work in the best interest of the child the ruling in child custody cases would be for a shared parenting arrangement with both parents contributing emotional and financial support to the children directly with little or no government interference, as occurs in a married 2 biological residential parent family for this is the arrangement which shows the best outcomes for child welfare, health, education and growth.
But we are in a Constitutional Republic which guarantees individual rights. I agree with Justice Stevens and prior Supreme Court Rulings which state that a “domestic relations exception” that “divests the federal courts of power to issue divorce, alimony, and child custody decrees” is consistent with the 10th Amendment. But the U.S. Supreme Court must uphold the rights of parents so that they are NOT removed without cause and a showing of strict scrutiny before the parental rights are removed. And absent a showing of abuse or neglect, in cases of disputed custody the courts should find for split residential and legal custody to preserve both parents rights.
My parental rights were a God given right and courts “issuing” them is akin to them issuing me the right to life or liberty and in “issuing” this right to the other parent they are in fact removing my parental rights in addition to removing my right to liberty. It is a well recognized adage in law enforcement to “do the right thing” in the application of laws to our citizens. In respecting parental rights, from the U.S. Supreme Court to the states family and matrimonial courts to the administrative tribunals of the executive branches for the past 30 plus years there has been a great unconstitutional failure to do the right thing for children, mothers, and fathers.
Publius
