When parents decide to divorce decisions have to be made on how to best care for their children after the parents separate. The courts created devices to try and make these decisions. Divorce court is a court of equity and is given the authority to grant the divorce and see to the equitable division of marital assets and liabilities. Equity as defined by Black’s Law Dictionary means: “the spirit and the habit of fairness, justness, and right dealing which would regulate the intercourse of men with men.” Thus, the court’s authority to do equity is the authority to do justice in those specific instances where there is no specific law to direct the court. For instance, if the law of the state dictates that all of the marital assets are to be divided equally, then the court in equity may decide to award the couch and table to one party and two chairs and a rug to the other party.

Equity is supposed to be what is just and fair. However, this authority has been repeatedly misused and misunderstood, and thus been the excuse for a great deal of injustice. Equity has too frequently been the banner under which parents and children have been dealt injustice. Equity does not give the court license to treat parties unfairly. Equity does not give the court the authority to punish the innocent.

There are bounds to equity, even in divorce and custody cases. Those bounds are set by the Fourteenth Amendment of the Constitution, which guarantees all equal protection under the law. When a custody dispute arises both parents have the same rights and liberties. However, it has now become routine that when those parties leave the courthouse only one of those parents will leave with their rights intact. One parent will be given custody and the other will be removed from the child’s life except for occasional visits. One parent will remain a parent and the other will become an acquaintance that helps with the bills. This outcome is said to be equity, but the concepts of justice and fairness are nowhere to be found.

Equity has no authority to rob Justice. Equity is the servant, not the master of Justice. When parents decide to divorce they are making a decision that they want to raise their children in two homes. A judge may believe that this is a “bad parenting decision” but, bad parenting decisions, absent abuse or neglect, do not empower the court to take over parenting decisions. When the court decides in “equity” to unequally distribute parental rights, privileges and responsibilities it usurps the ultimate parental authority over the child. A stranger in a black robe has now taken parental rights and authority from fit parents and delivered it to the state. This may sound like a cold, harsh exaggeration, but consider who really has authority to direct the upbringing of the child when the parties leave the court. If mother and father do not agree on where the child should go to school, if the child needs braces, how many extracurricular activities are in the child’s best interests, etc., then it is back to court the parties go and the state through a judge will now be making all final decisions.

How much simpler it would be if the court simply refused to interfere in parenting decisions.

This nation was born of a value system that prized liberty and freedom over life itself. Our founders are famous for saying such things as "Give me liberty or give me death." (Patrick Henry). With the Declaration of Independence our fathers proclaimed not just to mother England, but to the world that the right to "life, liberty and the pursuit of happiness" are natural rights belonging to all men and women. Our founders then prepared a Constitution for the purpose of protecting those natural rights that we were endowed with by our Creator.  The Supreme COurt recognized that among those liberty interests protected by the Constitution is the right to raise our own children how we see fit. John Locke pictured to the left was a political philosopher that influenced our founders and is credited with inspiring Thomas Jefferson and others. He stated in his Second Treatise of Government, Chap. 6. : 
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"Sec. 58 The power then that parents have over their children arises from that duty which is incumbent upon them to take care of their offspring, during the imperfect state of childhood. To inform the mind and govern the actions of their yet ignorant nonage, till reason shall take its place, and ease them of that trouble, is what the children want, and the parents are bound to: for God having given man an understanding to direct his actions, has allowed him a freedom of will, and liberty of acting, as properly belonging thereto, within the bounds of the law he is under. But whilest he is in an estate, wherein he has not understanding of his own to direct his will, he is not to have any will of his own to follow: he that understands for him, must will for him too; he must prescribe to his will , and regulate his actions; but when he comes to the estate that made his father a freeman, the son is a freeman too.

"Sec. 63 God hath made it their business to employ this care on their offspring, and hath placed in them suitable inclinations of tenderness and concern to temper this power, to apply it, as his wisdom designed it, to the children’s good, as long as they should need to be under it.

"Sec. 67 The nourishment and education of their children is a charge so incumbent on parents for their children’s good that nothing can absolve them from taking care of it: and though the power of commanding and chastising them go along with it, yet God hath woven into the principles of human nature such a tenderness for their offspring that there is little fear that parents should use their power with too much rigour; the excess is seldom on the severe side; the strong bias of nature drawing the other way.

"Sec. 71 But these two powers, political and paternal, are so perfectly distinct and separate; are built upon so different foundations, and given to so different ends, that every subject that is a father, has as much a paternal power over his children as the prince has over his; and every prince that has parents, owes them as much filial duty and obedience, as the meanest of his subjects do to their’s; and can therefore contain  not any part or degree of that kind of dominion, which a prince or magistrate has over his subject."

Unfortunately, the current child support system in this state places no emphasis on the important role of a parent to nourish, educate, or care for a child. The system places sole emphasis on the parent's responsibility to pay for a child's upkeep. No protection is afforded a child's right and need to look to their parent for guidance or nay of the other benefits derived from the parent-child relationship. When every part of a parent save their pocketbook is removed from a child the loss is terrible. As cited to prior blogs parents who have relationships with their children, provide for their children. Child support is based on a premise that the less time a parent spends with a child the more they should pay for that child. Orders of the court effectively cut of parental relationships, then send the injured parent a bill. This has been ineffective in the past will ever remain so. If our concern is for the child's welfare, then we must do more to ensure that parenting time with both parents is facilitated. Then can a parent truly support a child with not just money, but also love, affection, nurture, protection, instruction, time, energy and talent.