Nebraska Lawyer Magazine Takes on Constitutional Issues in Family Courts

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.

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