14^th Amendment and Custody of a Child in Divorce or For the Never Married

 

Often I hear people claim that the 14^th Amendment gives them a fundamental right to equal custody of their children in a divorce or never married custody situation. The battle cry for years has been that the 14^th Amendment guarantees every parent equal custody. This is one of the largest misnomers perpetrated on all parents in custody situations and a gross misinterpretation of the equal rights clause of the 14^th Amendment of the United States Constitution.

 

While some so-called supporters of parental rights have recently returned to the failed argument of parenting as a Constitutional right, that argument is fatally flawed.

 

Mind you that I am one of the largest supports of all Constitutional protected rights but this argument has gotten to the point that it is now hurting rather than helping to bring about changes to custody laws across the United States. While this argument sounds extremely compelling, it is ridden with flaws.

 

The Fatal Flaw

When examining a flaw in an argument it becomes important to look at the language of what people are trying to use within their argument.

 

14^th Amendment of the United States Constitution

 

• Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
• Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
• Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
• Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
• Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The fatal flaw in this argument comes within the claim that the Courts must award equal custody to all. It is a gross misunderstanding of what the intent of the 14^th Amendment to the U.S. Constitution was and why that amendment was brought forth at that particular time in this Nation’s history. The 14^th Amendment was added in the years following the provisions of the 13^th Amendment which freed the slaves of this country.  The thought process was to assure that no Congress or State could pass a law which would again enslave a people of this Nation or have them subject to law which lessened their rights as a free person.

The 14^th Amendment was never intended to create an equal result, only to give each person an equal opportunity at an equal result as the language of Section 1 in the amendment clearly states No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

For a law to be declared unconstitutional, a law would have to contain specific language which states:

• Specifically state that certain actions under the law must take place to limit the rights of a person based solely on their gender.
• Specifically state that certain actions under the law must take place to limit the rights of a person based solely on their race.
• Would require that a Court in a Custody determination to take a specified action in the limitation of a parent’s rights to custody and control of their children based on race or gender and that those actions are only because of race or gender.

There is a natural presumption that any law passed is Constitutional on face and that remains until it is proven otherwise within a Court of Law. If you look at what would be required in specified language to have a custody law declared unconstitutional none of the required conditions exists under law.    None of these conditions exist in any custody law in the Nation and the expectation that any law will always produce an equal result is a fallacy and an unrealistic expectation of many. The Due Process Clause is fully satisfied within the Court process as required by the same amendment.

One needs to look hard at the historical significance of the 14^th Amendment and why it was even necessary in the first place. This came on the heels of the 13^th Amendment and Emancipation Proclamation. It became necessary to complete the mission of the 13^th Amendment.  The 13^th Amendment came at the period in our Nations’ history as the Civil War wound down. President Lincoln and Congress had been trying to pass laws to abolish slavery within the country and that effort has stalled. With the Southern States about to rejoin the Northern States a bold move had to be made to ends slavery.  Once that was accomplished thru the Proclamation and the 13^th Amendment, clauses needed to be added to the Constitution to assure that no individual state enacted laws that re-enslaved the freed. The 14^th Amendment did that in a move to declare that no state again stepped on the rights of any individual with laws that adversely affect the rights of any individual. 

Where is the flaw within the custody laws?

While it well acknowledged that there does exist a known gender bias in the making of custody determinations, a fact that cannot be argued, it is not because of specific language within the law. The problem is in a failed policy and statement of review that exists in all family courts across the country not language that specifically enhances or decreases the rights of individuals.  The opportunity always exists for an equal outcome that seldom happens because of the review process.

Best Interests of the Child

“Best Interests of the Child” is an un-definable legal term yet this un-definable term has become the basis for making custody determination nationwide for 35 years now.  By being undefined the end result is based on how a particular person judges the situation rather than how the law as defined instructs the person to review and view the situation before making their determination. What is in the best interest of one child because of the cultural upbringing would certainly be detrimental to another child because of their culture and upbringing. By forcing the thoughts of what is in the best interests of a third party on a family often causes much more harm than good.

While case law is prevalent that suggests the parenting of a child is a fundamental and protected  right, no case has challenged the status quo of the use of Best Interests of the Child  as a review standard for determining custody in divorce. Much of the case law that comes with the suggestion the parenting is a fundamental right have limited application because of the use of a faulty standard of law. While many continue to point at the Troxel vs. Granville decision as the defining moment they fail to recognize the true defining moment within USSC decisions that took place in 1979 in Parham vs. J.R. et al before the US Supreme Court 442 U.S. 584 (1979) when the high Court made the following statement that was used within Troxell:

"[O]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations. . . . The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children." 442 U. S., at 602 (alteration in original) (internal quotation marks and citations omitted).

The statement makes the case on its own that the use of best interest is a faulty review standard for policy in determining custody and that it is time to change the way we look at family law.  Instead of looking at cases as being in the best interest of the child we must change the law to look at the only reviewable legal standard of law that exists: fitness of the parent.

Determining fitness is a process that happens every day in cases where a court is attempting to determine if a parent is abusing or neglecting the welfare of a child. While end results of that determination can be severe in that a determination that a parent is abusing or neglecting a child a parent found guilty can have their parental rights terminated ort severely limited by the Courts. Yet that limitation of parental rights is also protected by USSC case law that came forth in Santkosky v Kramer when the court determined that the only properly method of reducing or adjudicating the termination of a parent’s rights was to use a “clear and convincing” evidentiary standard of review.

Clear and Convincing verse Preponderance of Evidence

In any custody determination a Court is making the decision as to whether or not a parenting is capable of continuing to being an active participant in the life of their children. Whether that determination is to sever the bonds completely as is done if the parent is gone to be neglectful or when the Court is decision to limit further contact between the parent and child in a divorce custody situation extreme caution should be used in reviewing what is brought before the Court. The only method that should be accepted as proper review of the evidence is clear and convincing in any determination of this type. Any other standard of legal review risks a faulty outcome that will bring about more harm than good.

The difference for this that do not know the level of review that comes with these two standards of review, preponderance is only I think so verse I Know so that comes from the clear and convincing being used as the method of determining the evidence. If you think about this, would you rather be judged by someone that knows the facts or is guessing what they think are the facts. I want all the facts on the table and judged by a proper standard of review rather than having a judge guess or be influenced by outside or personal factors.

Breaking the Patterns of the Past

Breaking bad habits is a difficult thing for every person. The Parental Rights movement is no different but if this movement is to succeed past and continuing Bad Habits and bad arguments of law must stop. 

The next time that anyone suggests to you that your rights to be an equal parent is a federally protected by the 14^th Amendment and that that amendment grants you equal legal and physical custody by default, ask them a simple question:

Did this argument get you equal custody through the courts?

My guess is that the answer will be no and that answer should tell you alone that this is a failed argument based on faulty thinking that has gone on for too long. Break the habit and you and the entire movement will succeed. Keep up with failed arguments based on misinterpretations and application of Conditional Rights and you hurt yourself and everyone that is working towards the ultimate goal of changing the law.

Ray R. Lautenschlager

Ohio Family Rights

akron@ohiofamilyrights.info