Category: Blog

July 16, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

According to the analysis by three lawyers in their article for The Nebraska Lawyer, the best interests of the child rule violates three constitutional mandates – substantive and procedural due process and the equal protection of the law.  Given that, how should courts proceed to avoid rulings that violate litigants’ constitutional rights?  In other words, is there a constitutional alternative to the current practice?

There is.

Judicial decisions regarding legal custody and parenting time implicate fundamental Constitutional rights. As a result, these decisions must be narrowly tailored and must use the least restrictive means available. This means the judge must protect each parent’s Constitutional rights to the greatest extent possible, as well as the child’s corollary right to a meaningful relationship with each parent.

Constitutional compliance requires trial courts to start every case from a position of joint legal custody and equal parenting time.

In doing so, courts will be doing what the Constitution requires of them, i.e. tailoring parenting time decisions as narrowly as possible to avoid damage to a parent’s – or a child’s – rights.  Only joint custody and equal parenting time can meet that requirement.

So what about situations in which equal or nearly equal time with each parent is not in a child’s interests?  What’s a judge to do?

Decisions cannot rest on personal preferences of the judge or on gender stereotypes. Any deviations from joint legal custody and equal parenting time must be achieved by the least restrictive means available.

The requirement that evidence be “clear and convincing” in order to rebut a legal presumption (in this case, the presumption of joint custody and equal parenting time) is the second highest standard in American law, the “beyond reasonable doubt” standard being the highest.  Parental rights having been long recognized as fundamental and among the most important in American jurisprudence, no lower standard can be possible.

Of course, sometimes equal parenting time isn’t just unwise, it’s impossible.  Such a case would occur when parents live far apart.

The essential new approach also means trial courts should maximize the parenting time of both parents.  In an ideal world, this would mean a 50/50 division of parenting time but life is not always so easy. In situations where the parents live sufficiently far apart that an equal division of time is unworkable, the trial court could grant the parent with whom the children do not live during the school year a disproportionate number of school holidays and summer parenting days to compensate for the unequal division of time during the school-year. The court could also order that the child live certain school years with one parent and other school years with the other, as has been successful in many cases. For example, a child could live with the mother for elementary school and the father for middle and high school. This also means the pre-separation roles played by each parent are generally not relevant to their future roles under the parenting plan.

That last of course is all to the good.  The idea that parents’ roles pre-divorce should govern their roles post-divorce has never made sense.  The simple fact is that their children early on formed attachments to both parents, the disruption of which can be damaging to the kids’ psyches.  It doesn’t matter to children that Mom stayed home and Dad provided the family’s daily bread.  They need meaningful relationships with both.  Courts should not stand in the way of parents’ satisfaction of that all-important need.

Further, state appellate courts must stop giving deference to the orders of trial courts.  Doing so is not what the Constitution requires.  It requires that such orders be strictly scrutinized when fundamental rights are challenged on constitutional bases. That is the very opposite of deference.

The authors end by endorsing the following statement by Texas Appellate Judge David Puryear:

I write separately to express my belief that the standards currently used in making and reviewing orders that have the effect of limiting a parent’s access to his or her children do not reflect the legislative mandate regarding parental access, nor do they adequately respect the scope of the liberty interest enjoyed by a parent in rearing his or her own children. Because of the gravity of the constitutional rights and interests at stake in such proceedings, and because the current standard is based upon outdated notions of parenting that predate the family code and run counter to the legislature’s stated policy concerning children’s best interests, trial courts should justify deviation from maximum feasible time with both parents by clear and convincing evidence and make factual findings, and appellate courts should carefully review those findings. …

Despite the United States Supreme Court’s determination to subject infringement upon such fundamental rights to strict scrutiny and of our own legislature’s mandate to preserve and foster parent-child relationships, … courts have developed a jurisprudence under which trial court decisions severely curtailing that relationship stand absent an abuse of discretion. Considering the importance of and the risk to the rights at issue and the legislature’s clear mandates that courts take measures to protect this most sacred of relationships, I believe we need to carefully re-examine the standards by which decisions that limit a parent’s access to or possession of a child are made and reviewed.

Lawyers must begin scrutinizing their cases for the best fact pattern possible and making exactly the arguments made by the Nebraska Lawyer article.  Supreme Court jurisprudence in the areas outlined makes clear that current laws and practices violate the dictates of the U.S. Constitution.  It is high time they were brought into line with it.  As I said yesterday, doing so would not only agree with the Constitution, but with the overwhelming weight of social science on children’s well-being as it relates to custody and parenting time following divorce.

July 15, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The good sense and legal rectitude of the article in the Nebraska Lawyer attacking the best interests of the child rule in custody cases continues. Its authors offer a short section on equal protection as a possible way to correct child custody and parenting time orders. It then describes the implications for the future of the law on those issues and prescribes a framework for judges in which to issue orders that pass constitutional muster.

The Equal Protection Clause requires states to behave in ways that don’t discriminate inappropriately between people of different races, sexes, religions, etc. Needless to say, family courts routinely place their thumb on the mother’s side of the scale in deciding matters of custody, parenting time, child support and the like. Indeed, that practice has staunchly resisted all efforts at change. In 1993, the U.S. Census Bureau reported that about 84% of custodial parents were mothers. By 2013, the number was about 82%, i.e. no statistical difference. The survey of Nebraska family court decisions indicated that mothers receive sole or primary custody about five times as often as do fathers.

Many surveys of judges show conscious gender bias in how they decide cases. “A study conducted in 2004 found that although the ‘tender years doctrine’ had been abolished many years earlier, a majority of Indiana family court judges still supported it and decided cases coming before them consistently with it. A survey of judges in Alabama, Louisiana, Mississippi and Tennessee found a clear preference among judges for maternal custody in general.”

That, and much more information (such as the survey of custody outcomes in North Dakota) strongly suggest family court judges are routinely violating the Equal Protection Clause.

Under the Equal Protection Clause, gender classifications are subject to intermediate scrutiny, which means they must serve important governmental objectives and use means that are substantially related to the achievement of those objectives.

Needless to say, the government can have no legitimate interest in sidelining fathers in their children’s lives or burdening mothers with so much child care that they’re unable to earn an adequate living.

As the U.S. Supreme Court held in one of its rare family law cases, gender classifications “cannot be validated on the basis of the State’s preference for an allocation of family responsibilities under which the wife plays a dependent role. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.”

At this point, the article ends its inquiry into the possible legal attacks on the BIC rule and family court practices. It does so because it confined itself to constitutional challenges, but there is another way to attack the bias that reigns in family courts – U.S. Civil Rights law. That law provides a civil cause of action against anyone who “under color of law” deprives another person of his/her constitutional rights. Family courts do exactly that every day. Yes, judges are likely immune from civil liability for actions taken on the bench. But states may not be. If they follow customs or practices that result in the deprivation of constitutional rights, they may be liable and, from where I sit, the failure (nay, the refusal) to properly educate judges on the science supporting shared parenting may give rise to liability.

That said, the authors go on to detail some of the practical results arising from the use of the BIC rule and its fatal vagueness.

The “best interests” standard has produced perverse results. It often thrusts two, fit parents into a cage fight, awarding custody — and the financial benefits that come with it — to the parent who best destroys the other. The system likewise incentivizes attorneys to engage in conduct that is detrimental to the relationship of the child’s parents and harmful to the child.

Many family courts have devolved from courts of law into arenas where attorneys too often fuel discord and encourage parents to air their subjective – and often irrelevant — opinions about the other parent. Nothing could be further from the actual “best interests” of the child.”

Indeed. The authors capture the palpable irony of a rule called the “best interests of the child” that so damages those very interests. Encouraging parents to fight over a child whom they both love by offering each the tantalizing reward of sole or primary custody and then giving one or the other that sole or primary custody while marginalizing the other is the very definition of acting contrary to what’s best for the child. It’s what courts do every day and it needs to stop. That such a practice is so at odds with long-existing constitutional law is grounds for rejoicing. The law says the BIC cannot stand; science says it’s being misapplied. The two together point to a single outcome that the authors describe.

I’ll get into that next time.

July 13, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Allow me to apologize. In my last two posts discussing the article in the most recent issue of The Nebraska Lawyer, I repeatedly referred to the “best interests of the child standard.” Mea culpa; it is no such thing. The BIC is no standard at all and never has been. A “standard,” after all, is some sort of known and agreed-on criterion. By contrast, the BIC is anything anyone imagines it to be. It is one thing to Judge A and another to Judge B in the courtroom next door. It is one thing to Judge A in Smith v. Smith and another to the same judge in Jones v. Jones. Whatever the BIC is, it is not a standard. I therefore make obeisance at the feet of my readers and humbly beg forgiveness.

That done, once more into the breech!

After dealing with substantive due process, the Nebraska Lawyer article proceeds to procedural due process. That’s the type of due process non-lawyers tend to think of when the term “due process” comes up. It involves things like the right to receive notice of a legal charge against one, the right to legal representation, the opportunity to make one’s case, the right to confront one’s accuser, cross-examine witnesses against one, the right to have one’s case decided by an impartial tribunal, etc.

Procedural due process also includes the idea that the state must reasonably apprise those subject to its legal jurisdiction of what behavior does and doesn’t comport with its demands. That is, statutes must be understandable to average laypeople. That of course only makes sense. One of the two most important goals of the law is to get people to behave in accordance with the needs of society. In order to achieve that goal, people must be able to readily understand how to act so as to avoid legal prohibition.

Needless to say, the term “best interests of the child” informs precisely no one of what to do or not do in order to maintain contact with one’s child post-divorce. Parents and judges alike are left in the dark about the matter, and yet hundreds of thousands of times a year, judges rule in custody and parenting time cases all the while intoning the mantra of the BIC.

In Troxel, one brief to the Supreme Court had this to say:

The best interests test has long been the subject of academic as well as judicial criticism for being indeterminate, providing little guidance on how to weigh the different needs of individual children, especially as they change over time;

It went on to cite a law review article thus:

The “best interests” standard is “a prime example of the futility of attempting to achieve perfect, individualized justice by reposing discretion in a judge. Its vagueness provides maximum incentive to those who are inclined to wrangle over custody, and it asks the judge to do what is almost impossible: evaluate the child-caring capacities of a mother and a father at a time when family relations are apt to be most distorted by the stress of separation and the divorce process itself.”

No better example of the arbitrariness of the BIC than what comes to us from Nebraska. Recall that the Legislature commissioned a study of custody outcomes both before and after an amendment to the family law of the state. One of the many remarkable findings was that parents in one part of the state received far different custody and parenting time outcomes than did parents in another part.

Surveys of child custody decisions, including the Nebraska 2002-2012 Custody Court File Research Study, show similar facts often produce vastly different outcomes. Facts that might result in joint legal custody and 50-50 parenting time in Omaha will likely result in sole legal custody and 80-20 parenting time in North Platte. These surveys show case outcomes often depend more on the judge who hears the case than the law or the facts of the case.

A survey conducted just last year of parenting time decisions by North Dakota’s judges revealed much the same thing. Is it possible that parents in one part of a state are so different from those in another? Not likely, particularly in a demographically homogenous state like North Dakota. And yet there, as in Nebraska, a parent’s chances of receiving meaningful time with their children depend, to a great degree, on where they reside.

Needless to say, that has nothing to do with the “best interests of the child.”

Finally, the U.S. Supreme Court has recently taken note of the “void for vagueness” doctrine. The case in which it did so had nothing to do with the BIC or even family law, but Justice Gorsuch’s opinion could be addressing those very things.

The implacable fact is that this isn’t your everyday ambiguous statute. It leaves the people to guess about what the law demands—and leaves judges to make it up. You cannot discern answers to any of the questions this law begets by resorting to the traditional canons of statutory interpretation. No amount of staring at the statute’s text, structure, or history will yield a clue.

It “leaves judges to make it up.” Indeed. That’s the BIC in a nutshell.

July 12, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The article in the Nebraska Lawyer magazine entitled “Yes, Virginia, the Constitution Applies in Family Court, Too” is a stunning indictment, not just of the “best interests” standard, but of family court orders generally.

It attacks those orders on three different constitutional fronts – substantive due process, procedural due process and equal protection.

In the 2000 case of Troxel v. Granville, the U.S. Supreme Court summarized prior case law on parental rights.

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”

Parental rights have long been understood by the Court to be one of those fundamental liberty interests. Indeed, the interest a parent has in the care and companionship of his/her children is perhaps the oldest and most fundamental of all liberty interests. It is therefore all the more remarkable the short shrift those rights are routinely given by judges ruling in family matters.

Eight years after Troxel, the Nebraska Supreme Court effectively expanded the liberty interest enjoyed by parents to children as well.

[B]oth parents and their children have a recognized unique and legal interest in, and a constitutionally protected right to, companionship. In other words, the substantive due process right to family integrity protects not only the parent’s right to the companionship, care, custody, and management of his or her child, but also protects the child’s reciprocal right to be raised and nurtured by [his or her] biological parent. It is clear, therefore, that both parents and their children have cognizable substantive due process rights to the parent-child relationship.

At least two states – Nebraska and Virginia – have specifically included unmarried fathers within the protection of that liberty interests as long as they’ve established a meaningful relationship with their kids. Parenthetically, I would point out that the requirement that the father have established such a relationship before his substantive due process rights as a parent come into being effectively places the exercise of those rights under the control of the mother of his child. If she permits him to establish such a relationship, his rights come into being; if she doesn’t, they don’t.

What does all this mean? It means that any state action that seeks to infringe or diminish those fundamental rights need to meet the highest burden ever established in order to pass constitutional muster.

This means it survives Constitutional scrutiny only if it is narrowly tailored to serve a compelling state interest and uses the least restrictive means available to do so.

Ask yourself how many parenting time orders are “narrowly tailored” and use the “least restrictive means” available in order to serve what is undeniably a compelling state interest, i.e. the child’s best interests. That’s right, very few. And I’m not the only one who thinks so. The article’s three authors, attorneys David Domina, James Bocott and Jeremy Hopkins conclude that,

Under strict scrutiny analysis, appellate standards that give trial judges independent responsibility to determine custody and parenting time, even over the joint agreement of the child’s parents, do not pass constitutional muster.

More on this tomorrow.

July 11, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The July/August issue of The Nebraska Lawyer, i.e. the house organ for the state bar association, is quite remarkable. It includes an article by three of the state’s most prominent trial lawyers. Their topic is the dubious constitutionality not only of the “best interests of the child” standard, but of the orders issued by family courts generally. Their article should be required reading for every family court judge and lawyer practicing in those courts. Plainly, neither the lawyers nor the judges have a very firm grasp on some basic constitutional concepts.

Oddly, judges and practitioners often overlook basic Constitutional requirements in traditional family law cases. As one commentator observed, judges regularly issue orders in these cases that would never pass Constitutional muster in other contexts.

That’s often where the “best interests” standard enters the picture. I’ve often pointed out that that standard is so sloppy, so amorphous, so vague that it can mean anything. It’s more of a Rorschach test of the judges issuing the orders than a sensible rule for parenting time with kids. It is painfully obvious that very often judges are simply shooting from the hip, making up a child’s best interests to suit their preconceived notions. It’s not just that judges don’t have the first idea about the science of how parenting time actually affects children. They plainly believe that pretty much anything can fall into the ambit of the “best interests” standard. So, legal scholar Kelly Kanavy has noted,

Under the amorphous “best interests of the child” standard, judges have ordered parents to bring their children to church, avoid criticizing ex-spouses or their religious beliefs, refrain from bringing intimate partners near the children, and even communicate feelings of love toward their ex-spouses.

And the excellent Professor Eugene Volokh has added,

The “best interests of the child” test – the normal rule applied in custody disputes between two parents – leaves family court judges ample room to consider a parent’s ideology. Parents have had their rights limited or denied partly based on their advocacy of atheism, racism, homosexuality, adultery, nonmarital sex, Communism, Nazism, pacifism and disrespect for the flag, fundamentalism, polygamy, and religions that make it hard for children to “fit in the western way of life in this society.”

That much of what family courts order parents to do or not do “in the best interests of the child” violates basic rights of free speech, free association, the Free Exercise Clause, the Establishment Clause and many others is gob-smackingly obvious. How the judges and lawyers in family courts don’t manage to notice that is beyond me.

Years ago, I wrote a piece about a young father who was being kept from his little daughter by her mother. So Dad showed up at the child’s daycare when Mom was dropping her off. Mom wasn’t about to deny the child a day with her father when, in front of the daycare center’s staff, the little girl was crying, holding her hands out and protesting “I want to go with Daddy!”

So off went father and daughter. Mom headed to family court where, the same day, she was given an ex parte restraining order against Dad. It ordered him to stay away from Mom’s place of work even though there was not even an allegation that he’d gone near there. Most remarkably, Dad was also ordered to stay away from “anywhere else Plaintiff (i.e. Mom) might be.”

At the time I pointed out that that literally meant that Dad needed to avoid being anywhere in the world. But there was more.

When Dad finally got Mom into court to contest the order, he asked her under oath what he’d done to make her feel afraid of him. Her answer was “you keep filing all these motions in court.” That is, she’d kept him from his child and he did the only thing he could legally do – try to get a court to enforce his rights under the custody order. Such was her claim of domestic violence.

To summarize, the judge issued an order without notice to Dad or the opportunity to make his case. He issued a patently vague and overbroad order. The only testimony offered by Mom couldn’t legally form the basis for any diminution of Dad’s rights because what he was doing (filing motions in court) was legal and in no imaginable way constituted violence or the threat of violence. Plus, her original complaint made no reference to the said motions, so Mom had pleadings, but not proof to back up her claims.

To even the least experienced lawyer, such a situation is comic, the Original Amateur Hour. The judge in that case had either never attended law school or didn’t remember even the basics of Constitutional Law. More remarkable still, Dad lost his appeal. The judges reviewing the order and the process by which it came into being deemed both legally acceptable.

That’s family court for you. I’ll get into the core of the Nebraska Lawyer article tomorrow.

July 9, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

One benefit of the excitement over now-rescinded Trump Administration policies regarding undocumented adults entering this country with children is that it’s produced a focus on children and what happens to them emotionally when they’re separated from their parents. This article is a pretty good one in that regard because it truly is about children and the trauma they suffer when removed from their parents (Wall Street Journal, 6/20/18). That is, it’s more than just an excuse to bash the Trump Administration.

Now, I assume that most people, when reading the linked-to piece will be thinking of immigrant kids from Mexico and Central America who’ve been so much in the news. I’d like to issue an invitation to those readers to consider children being taken into foster care. Indeed, I’d like readers to consider mostly that. After all, some 2,300 kids were separated from adults at the border, while we have about 438,000 children in foster care at any given time. In 2016, over 600,000 kids spent some time in foster care. And of course the number in foster care barely hints at the number of kids taken by child welfare agencies but who never make it into care.

In short, while the kids at the border are important, so are ours who’ve been here all their lives. With that in mind, consider:

For children of all ages, the loss of a caregiver activates the biological response to stress, which includes increased heart rate and blood pressure, as well as elevated hormone levels. If the biological response is continuously engaged, it begins to cause “wear and tear” on the child’s body, according to Dr. Jack Shonkoff, director of Harvard’s Center on the Developing Child.

The AAP, in its statement condemning the policy, cited the “lifelong consequences” of extended exposure to serious stress, a condition sometimes called toxic stress. Current research indicates that chronic stress puts people at increased risk of psychiatric disorders and other health problems.

“For example, if heart rate and blood pressure stay up for a long period of time, it puts a strain on the cardiovascular system, or it can lead to insulin resistance and put you at increased risk of diabetes,” Dr. Shonkoff said.

Are you listening, Child Protective Services? I fully understand that most kids in foster care were abused or neglected at home. I also understand that U.S. government policy and law offer cash incentives to states to take children from parents. That of course stems from the Adoption and Safe Families Act of 1998, a Clinton Administration initiative. We know how traumatic being taken from a parent can be for a child. The above-quoted medical facts (and many others) strongly militate in favor of making removal of a child from parents a last resort, taken only when there is real danger of real harm.

[I]n the first three years of life, children undergo a rapid period of brain development. Constantly changing caregivers could impair the development of a child’s executive functions, such as the ability to regulate behavior and pay attention, said Megan Gunnar, director of the University of Minnesota’s Institute of Child Development.

“For very young children, this is probably going to have the greatest impact because the relationship between infant/young child and their caregivers is so important,” said Adam Brown, a psychology professor at New York University Langone Medical Center who studies traumatic stress in children. “The most intensive brain development occurs in these early years.”

This is much the same as we’ve seen regarding kids in daycare. Sound studies show them with elevated levels of cortisol, the “stress hormone” and suffering for it later in life. And of course the younger the child, the worse the effects of separation.

Now back to CPS.

Even brief episodes that don’t induce the stress response can affect some children, according to Pat Levitt, a neurogeneticist at the University of Southern California’s Keck School of Medicine. Infants, for example, can demonstrate short-term cognitive impairments, such as difficulty controlling emotions or anxiety, or even experience serious physical deterioration, said Dr. Steven Marans, the director of the Childhood Violent Trauma Center at the Yale Child Study Center.

With older children, Dr. Marans said, the length of separation can intensify feelings of hopelessness or helplessness, forcing them to rely on an increasingly limited number of cognitive or emotional responses.

“We’re increasingly concerned, the longer the separation,” he said.

Allow me to underline “even brief episodes that don’t produce a stress response can affect kids.” Again, CPS caseworkers should be taught this from day one. Separating children from parents is dangerous work. It harms children. Even if there is a clear risk of harm at home, that risk must be weighed against the certainty that the separation will itself cause harm.

Carola Suárez-Orozco, a professor of human development and psychology at the University of California, Los Angeles, …pointed out that children often lack the cognitive abilities to make sense of their surroundings. After extended separation from caregivers, their longer-term outcomes could include increased risk of withdrawal, depression, anxiety, crime and anger, she said.

We know from numerous studies of kids who’ve been in foster care that they often come out of foster care in worse shape than when they went in. Indeed, that was the specific finding of federal Judge Janice Jack in her ruling against Texas Child Protective Services. Much of that harm comes from their initial separation from their parents. Kids form attachments to parents very, very early in life. Disrupting those attachments is traumatic and can lead to lifelong emotional, behavioral and psychological deficits. Everyone should be aware of those facts. That includes presidents and CPS caseworkers.

July 8, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

It’s hard to know under which category to file scandals like this one (Wall Street Journal, 6/26/18). How about “Government Interference in Families?” Or perhaps “Governmental Deprivation of Parental Rights?” “Big Brother Knows Best” is another possibility. So is “Child Trafficking.”

I first wrote about this way back in 2011. Then as now, thousands of Spanish adults are clamoring for the government to produce records of a policy during the post-WWII Franco regime that encouraged hospitals to take newborns from Leftist parents, tell the parents the children died, produce fake death certificates and hand the children over to parents more friendly to the government. Needless to say, money greased the wheels of this particularly odious practice. It went on from just after the end of the war until after Franco died in 1975.

Now, thousands of those deprived parents and their now-adult children are fighting back. The article details one 49-year-old woman who’s sued the doctor who, she alleges, told her mother she’d died and handed her to strangers.

Inés Madrigal told a three-judge panel in Madrid that the woman she had always considered her biological mother confessed to her before she died that a gynecologist named Eduardo Vela had given her a baby in June 1969. Dr. Vela told her to act as if Inés were her birth child and provided no clues about the baby’s origin, the court heard…

Spanish officials at homes for unwed pregnant women and hospital clinics allegedly took newborns from mothers who were considered leftists or communists and gave them to families connected to the Franco regime. The practice later morphed into a network to traffic babies for money, prosecutors and some academics say, and carried on when Spain transitioned to democracy after Franco’s death.

Ms. Madrigal’s case is the first to reach trial, but Spanish activists have been putting the heat on the government for at least a decade to provide more information on the policy. Unsurprisingly, the government hasn’t been overly forthcoming.

As readers of this blog will perhaps recall, much the same thing happened in Israel shortly after its creation in 1948. As I wrote here, the United States and Great Britain encouraged Yemeni Jews to emigrate to the new state and some 50,000 of them did. But the Ashkenazi power structure in Israel wasn’t amused. In what must count as a Top Ten irony, those European Jews considered the Yemenis, if not subhuman then certainly subnormal. So they adopted a policy much like that of Franco. They took Yemeni newborns and gave them to couples considered more in line with government standards.

As in Spain, the government’s documentation of the atrocities has been hard to locate. Indeed, the Israeli government established a commission to look into the matter. Its findings are widely considered a whitewash of the scandal, a conclusion much reinforced by the fact that the government simultaneously sealed all records of the policy and its effects for 50 years.

More outrageous behavior by a government toward parents would be hard to imagine and certainly nothing in the U.S. even remotely qualifies. But, as I said in my 2011 post, adoption law and practice certainly have parallels, particularly as regard fathers. Putative father registries exist for the sole purpose of removing biological fathers from the process of adoption. Children lose fathers, fathers lose children and the whole mess is paved with money from adoptive parents and, not occasionally, the U.S. government.

So under what category do we file these governmental policies that, by hook or by crook, shanghai children away from perfectly fit parents and create an active baby market in the process? I’m not certain, but the exercise of state power over parents and children, in situations that are plainly none of the government’s business, continues. It is at all times to be scrutinized and usually resisted. Almost invariably, parents know better than the government about how to raise children and do a far better job of it than anything or anyone the government has to offer.

The U.S. Supreme Court has repeatedly called the right to parent one’s children a fundamental liberty interest, one of the most basic rights supposedly preserved to us by the Constitution. We must never forget that that is exactly what it is and act accordingly.

June 6, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

In 2012, Great Britain decided to prohibit access to legal aid in all cases except those involving domestic violence. And guess what happened. Claims of DV shot up (BBC, 6/3/18). Their numbers have increased 30% since then and are going up again this year. It seems that solicitors are accurately telling potential clients that they don’t qualify for legal aid unless they make a claim of abuse. Unsurprisingly, many people decide that access to free legal help is worth distorting the facts a bit.

And of course it’s not as if domestic violence is that difficult to claim. Almost any behavior on the part of one’s spouse that’s obnoxious, rude or crude will suffice. The requirement that behavior be actually, you know, violent, to qualify as domestic violence, went by the wayside long, long ago. Did he urge her on more than one occasion to stop spending so much? He’s an abuser. What about begging her to stop hanging out with the junkies down the street? Same result.

So, given that “domestic violence” can mean virtually anything and that the government is frankly offering monetary incentives to file claims thereof, who is seriously surprised to see the number of claims increasing?

Plus, for the complainant, few things in court are easier than prevailing in a case alleging DV? Here’s some of what the charity Families Need Fathers has to say about the process in court:

They are often granted in the absence of the person being accused of abuse (the respondent) and without accusations of domestic abuse being proven

The making of an order then also enables the complainant to draw on thousands of pounds in legal aid which can also be used in any subsequent family law cases

The respondent would not be automatically entitled to legal aid, however, and often has to represent themselves

The level of evidence required is fairly low and can relate to claims about verbal abuse, unwanted text messages or emails

In other words, the deck is stacked in favor of the complainant and against the respondent. After the complaint is made, the courts are quick to impose restrictions on the respondent, but woefully slow to ask him for his side of the story. Indeed, sometimes they never get around to doing so.

Once an order is made, there is a brief “return” hearing two weeks later but the case is then usually adjourned for about six months.

During this time every agency related to the the respondent and his family, such as the police, school and local council, is notified.

This can lead not only to the parent being physically separated from their children but being ostracised by the agencies involved with them.

After about six months, usually, a fact-finding hearing is held at which the evidence of the applicant’s claim is meant to be heard.

But quite often, just as the initial order is made in the absence of the respondent, the fact-finding hearing is held in their absence as well.

A judgement is then made on whether the order should continue.

At this point it can be used to restrict a parent from spending time with his or her child and to delay the process of arranging contact.

Yes, the country that gave the world Magna Carta today allows parents (mostly fathers) to be removed from their children’s lives without ever appearing in court to defend themselves. Consider but one example.

And Sir Andrew [McFarlane] cited a case in which a father was subject to a continuing non-molestation injunction preventing him from having any contact with his children for a period of years.

“That injunction had been based upon the untested and contested factual allegations which were never tried,” he said.

There once was a thing called “due process of law.”

And it’s not just organizations like Families Need Fathers that are complaining. McFarlane is the new president of the Family Court Division. Outgoing president Sir James Munby has raised the issue before.

The outgoing president of the High Court’s family division, Sir James Munby, described false allegations as a “vice in the system”.

He also said that the judiciary had recently realised that “a wrongly granted without notice order sets the tone of proceedings thereafter”.

He tried to crack down on the use of such orders, reminding courts that it was for the applicant to prove their claims rather than for the respondent to disprove them.

As long as non-molestation orders are so easy to obtain, as long as the government offers free legal representation to get them, as long as they are, at least for six months, literally unanswerable and as long as they carry such power in child custody proceedings, they’ll continue to be misused as they are being now. Judges can and must put a stop to the abuse of parents, children and the legal system that NMO’s present.