Great news!  Bipartisanship legislation introduced to protect children’s relationships with both parents.
A bill known as the “Children’s Equal Access Act” has been filed as Senate Bill 186 (“SB 186”).  In general terms, what does SB 186 do?

The Children’s Equal Access Act (SB 186) is a bill that incorporates research-based recommendations from the Alabama Law Institute Family Law Standing Committee, as well as research-based conclusions from the 40 studies and consensus of over 100 social scientists regarding child custody. The 40 studies and 112 experts conclude that “shared parenting should be the norm for parenting plans for children of all ages of fit parents. The scientific data has conclusively shown that shared parenting produces better outcomes for children (success in life) compared to our currently utilized “standard visitation”.

You can read the bill in its entirety here, or click on the file below to download your copy.
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Below are the listed sponsor/co-sponsors:

Senator STUTTS, Larry (SPONSOR)  (R) 334-242-7862                             [email protected]
Senator ALBRITTON, Greg                   (R) 334-242-7843                             [email protected]
Senator BEASLEY, Billy                         (D) 334-242-7868                             [email protected]
Senator BUSSMAN, Paul                        (R) 334-242-7855                            [email protected]
Senator COLEMAN-MADISON, Linda (D) 334-242-7864                           [email protected]
Senator SANFORD, Paul                       (R) 334-242-7867                             [email protected]
Senator MARSH, Del                              (R) 334-242-7877                             [email protected]
Senator SHELNUTT, Shay                    (R) 334-242-7794                             [email protected]
Senator SINGLETON, Bobby               (D) 334-242-7935                             [email protected]
Senator WHATLEY, Tom                      (R) 334-242-7865                            [email protected]

Please call or email the senators listed above, and thank the sponsor and co-sponsors for putting children in Alabama first.

Together we can make our voices heard to support children having two parents. Thank you so much for taking a moment to stand up and be heard today!

Appeals can be very challenging for pro se litigants that represent themselves and new attorneys trying their hand at the task for the first time. The rules of Appellate Procedure are your most important guide. That is where you will find your timelines for due dates as well as instructions on what must be included in your appeal. 

Appeals are very technical. There are rules about what to include, font size and style, page limits, color coding, numbers of copies, tabbing, etc... An attorney who specializes in or has experience in appeals is well worth a diligent search.

Aside from the technical issues listed above the content of a brief takes a special skill set. The brief must be well organized and compliant with the rules with an eye toward bringing technical errors of the trial court to light.

Two major rules that can cause great difficulty on appeal are the ore tenus rule and Rule 28. The ore tenus rule presumes that the findings of fact made by a trial court should generally not be disturbed on appeal because the trial judge is there at trial to review the demeanor of witnesses and judge their credibility. The idea is that the judge is there and scrutinizing the witnesses to determine who is telling the truth and who is not. However, this assumption is not always justified. Judges are human just like you and me. Sometimes they are distracted, their mind wanders or they are just otherwise inattentive or disinterested. Sometimes judges miss things or just don't appreciate what is being presented for whatever reason. The ore tenus rule acts as an obstacle to any reconsideration of the evidence. Sometimes the appellate court has so much respect for the trial court that it ignores the facts of a case and uses the ore tenus rule to justify turning a blind eye to the facts. I have seen a custody case where a mother moved her children 1000 from a comfortable home to pursue her own romantic interests. Not only did she mover her children from their home and extended family, she moved them into a tent, then into a barn. The state then had to inform her that a barn was not appropriate accommodations for children. These facts were undisputed at the trial court but were ignored by the appeals court for the sake of the ore tenus rule. Sadly if you were to read the decision in this case you would never know what the mother had done because none of the facts were included in the opinion. I have often thought that litigants and truth would be better served by video recording all family and custody cases for review on appeal. In these cases there are no juries or audiences to protect truth. We use instant replay in football games because we want to get it right. For the same reason instant replay is needed in family and divorce court.

Rule 28 dictates that all arguments on appeal must be supported by facts and law. This is a sound premise. However, sometimes this rule can be stretched to absurd lengths. Abraham Lincoln once quipped some judges "would hang a man for blowing his nose in the street , but ... would quash the indictment if it failed to specify what hand he blew it with." Some judges have been seen to use this rule to the extent that absent a definition being provided for each word of a brief the argument would be inadequate. While Bill Clinton may have stated that his answers must be conditioned on what your definition of the word "is" is; the rest of us are able use a little common sense. I have seen cases where the opinion indicates that this rule has not been satisfied but  a review of the brief will show dozens of cases cited on the subject matter. perhaps the attorney should have provided a footnote to define the word "is" for the court. The rules have a purpose - to make sure justice is served. However, when they are stretched justice is never served.

Special note should be taken of these rules to make sure  your appeal is not dismissed before the facts of your case are even considered.

If you are considering filing a paternity action and you are a father it probably means that you are a stand up guy and you want to have a relationship with your child. If this is the case then you need to consider the issue of child custody or parenting time before you file your petition to establish paternity. In many counties in Alabama you will not even be asked about how much parenting time you are seeking. I have seen too many paternity cases that have closed without even an award of visitation specifically ordered. If you file a paternity action and the case closes without an order on the issue of custody then it will be presumed that the mother is the primary custodian and you will suffer a strategic disadvantage if you later attempt to gain parenting time or custody. If you want a relationship with your child(ren) then you will have to ask for custody or parenting time yourself. There will be no one else at court to do it for you. You and your attorney must start your case off on the right foot and ask the court to protect your father-child relationship from the start.

How do children feel about living in two homes? Is it a hassle? Do they like it? What does the scientific research and data on the subject say*?
 
Researchers have conducted studies that have asked children how they feel about shared parenting. These studies asked both children who are currently living in shared parenting families and young adults that previously lived in shared parenting families if shared parenting was disruptive to their experience. Participants ranged from young children to young people in their early adult years. What these children are telling us is, yes, it was a hassle. You're living in two homes. That's a hassle. however, going to visit a parent every other weekend is a hassle. You still have to pack up your stuff. You still have to tell your friends where you are. You're still going to forget something at the other house. So they're saying yes, it was a hassle. You know what? Your parents' divorce is a hassle. The whole thing is a hassle. But what they're telling us is, the disadvantage, the hassle of living in two homes, was worth it. The benefits that flow from a  strong relationship with both parents far outweighs any hassle. It's a trade-off, and the kids are telling us the trade-off was worth it, a small cost for a large long term gain.
 
Shared parenting was compared with the other group of kids who live with one parent under the cookie cutter, one size fits all, every other weekend, with some Wednesday nights "visitation". Researchers asked these kids, "how did you feel about your custody/parenting time situation?" "Do you think that it is in your best interest?" Research compiled over three decades shows that kids do not like the "standard" plan. They want both of their parents.
 
Children are right to resist sole parent plans. The research shows that shared parenting among fit parents is not just satisfying for children, it also gets better outcomes. Children who have significant relationships with both parents are better adjusted and more likely to succeed in life.
 
* The scientific research - there are 40 studies that have been peer-reviewed and published in academic journals over the past 25 years comparing two family types: (1) sole custody and (2) shared parenting. 
 
The 40 studies contain research conducted and/or endorsed by 112 experts in the field of children's well-being and child custody. The studies followed more than 250,000 children and found better outcomes for children in shared parenting situations. The scientists determined that children in shared custody, who spent at least 35 to 50% of the time achieved the best results.  

The Courts in Alabama have held that  “the touchstone for custody decisions ‘is the welfare and best interests of the child.’” Willing v. Willing, 655 So. 2d 1064, 1065 (Ala. Civ. App. 1995). However, the definition of the “best interest” of a child has become nebulous in that it has no common definition or criteria for analysis. Because the “best interest” of a child has not been defined the term itself has become a blank check in equity for trial court judges throughout the state. Each judge interprets the term in their own manner. This has led to a total disruption of the principle of stare decisis in that litigants find that an analysis of the personality of the judge assigned to the case is a greater indicator of litigation outcomes than a review of law.

      The “best interest” of a child has become a lens of each court’s own fashioning. And the facts of each case are then viewed through that lens. So long as the “best interest” of the child remains undefined inconsistent results will be the norm. The “best interest” standard without guide posts, limits, and direction is inherently arbitrary. Under the current undefined standard too much of a custody determination is based on the judge you draw rather than the law or the facts of your case.

      It may be argued that the judges of the state are worthy of such broad discretion to effectively address every eventuality. However, the diversity of judgments confirms that the need for narrower guide posts is indicated. The Supreme Court has previously rejected overly broad discretion in matters relating to child custody. Parham v. JR, 442 U.S. 584, 603(1979)(“The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”)(emphasis in original). The “best interest” of a child is not the sole province of the judge. Prince v. Massachusetts, 321 U.S. 158, 166 (1944)(“It is cardinal with us that the custody, care and nurture of the child reside first in the parents”). The parents, as a general rule, are in the best situation to determine what is in the best interest of their own children. However, a parent can abdicate that sacred role and invite intervention. R.K. v. R.J., 843 So. 2d 774, 786 (Ala. Civ. App. 2002)(parents can lose their privilege by acts indicating forfeiture including abandonment and fair agreement).

      Guide posts must be set to govern the trial court’s field of operation when making a determination of the best interests of children. The first guide post should be that the court must give deference to the wishes of fit parents rather than try to craft a custody solution of its own making. The second guide post should be that parties that violate the children’s parenting time with the other parent must not be rewarded. The third guide post should be that when parents affirmatively and voluntarily forfeit parental responsibilities they invite intervention of the court. And the fourth guide post should be that any decision in equity must be balanced so as to respect the constitutionally protected rights of both parents and kept within the bounds of due process. Within the four corners of these guideposts is ample room for the court to justly address every eventuality.

      Admittedly, these are principles that could be employed by judges under the current laws of the state. However, experience has shown that these principles are not being adhered to throughout the system. The term “best interest” has been left to the private interpretation of each judge in the state. These private interpretations have yet to coalesce around a single star and have been left to disperse throughout the chaos of space. All judges are simply not of like minds in this regard and we cannot rely on some abstract law of nature to guide them to consensus. The wisdom and guidance suggested above must be provided to the Courts. Contrary to the assertions of the Bayliss court, wisdom does not automatically come sewn into the lining of black robes. Ex parte Bayliss, 550 So. 2d 986, 995 (Ala. 1989)(“Our trial courts have demonstrated that they have the wisdom of Solomon in these domestic matters. We know that they will continue to demonstrate that wisdom in deciding whether to require a parent to provide, or help defray the cost of, a college education for a child, even after that child attains the age of 19 years.”). If all judges were so inherently wise we would have no need for appeals courts and Bayliss itself would never have been overturned.

     The “best interest” of a child must be narrowed and defined so as to assure consistent just results in matters of child custody.

However you may feel about the gay marriage issue it must not be decided by the Court interpreting the 14th Amendment as creating a right to gay marriage.

The Fourteenth Amendment has been analyzed in great detail by the litigants and by this Court in the cases relating to gay marriage. The history of its application has been traced in detail by both sides of this contest. Both sides contend that their position is supported by the 14th Amendment. Both sides cite to the same case law and even quote some of the same dicta. However, the current case is unique, and if the position of the advocates for gay marriage is adopted by the Court then the entire nature of the Constitution will have changed, and the Republic along with it.

The Petitioners admonish that the purpose of the 14th Amendment is to protect liberty.[1] However, they have not asked the Court to protect liberty, they have asked this Court instead to create a new governmental right. The Court has repeatedly held that the 14th Amendment protects those natural rights that exist independent of government.[2] The Declaration of Independence states: “We hold these truths to be self evident that all men are created equal and are endowed by their Creator with certain unalienable rights, that among these are the right to life, liberty and the pursuit of happiness.”[3] The Court has repeatedly recognized that certain fundamental liberty interests though not enumerated in the Constitution itself are to be protected from government interference.[4] Among these rights has been the right of private citizens to conduct their own private family life and for parents to raise children as they see fit.[5] However, the 14th Amendment did not create these rights and cannot operate as a blank check for the Court to create new rights at its pleasure.

The position of the petitioners is original in that they have not asked for protection from government interference in private home life. Instead they have invited the government into their homes. They have asked for the government to extend a license and privileges to them. They do not seek to limit government involvement but instead demand government involvement. They claim a right to a marriage license. However a marriage license like any other government license is not available to all, but only to those that meet certain predetermined conditions.[6] A license is not a right, it is a privilege. And the 14th Amendment does not create a government duty to extend licenses or privileges.

In truth, even the strictest marriage license requirement does not deny anyone any right. No same sex couple is prevented from proclaiming that they are committed to each other. No same sex couple is prevented from conducting a ceremony of their own choosing or design to add dignity to their relationship. No same sex couple is prevented from exchanging rings and vows. No same sex couple is prevented from endeavoring to live happily ever after. No same sex couple is prevented from referring to their partner as their “spouse.” Further, no same sex couple is prevented from announcing to the world that they are married. In fact, many of the same people who have rushed to the courthouse for a license state that they have been “married” for years.[7] The only thing they have been denied, and that they have complained of, is the denial of certain privileges, to wit: tax benefits[8], step-parent adoption privileges[9], government benefits[10], etc. These benefits are not denied as a result of sex, age or religion, but because of a simple failure to comply with licensing regulations. The member of a same sex couple has no greater disadvantage than any other person. A single person could raise the same lamentations as the members of a same sex couple. They are likewise denied tax benefits, step-parent adoption privileges, and other government benefits.

What petitioners seek is a fundamental change in how the Constitution operates. Before his rise to the presidency Barak Obama stated: “generally the Constitution is a charter of negative liberties. Says what the states can't do to you. Says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf.”[11] The petitioners in this case are asking the Court to not just interpret the Constitution in a new way. They are asking the Court to change the nature and function of the Constitution. If petitioners are successful, then the Constitution will no longer be a shield protecting the rights of the people. It will lose all value. It will become an agent for the destruction of liberty and a free republic.

The danger could not be more grave. The sought for “interpretation” will render the Constitution entirely useless. Judicial review and interpretation cannot be so broad as to render the Constitution itself a nullity. If the Constitution ceases to be our guide then we have no law or justice and soon will have no republic.

Homosexual unions do not threaten heterosexual couples in the sense that such unions do not change the nature of heterosexual relationships. However, if the Constitution is changed by judicial interpretation from a protection for liberties into a document that says what the government must do for you then the transition to a socialist republic will be complete.

[1] Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984).


[2] Fundamental liberty interests are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksburg, 521 U.S. 702, 721 (1997).


[3] The United States Code, "the official codification of the general and permanent laws of the United States," includes the Declaration of Independence in the section entitled "The Organic Laws of the United States of America." See Black’s Law Dictionary 1274 (10th ed. 2014)(defining “organic law” as “[t]he body of laws (as in a constitution) that define and establish a government”).


[4] Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923; and Prince v. Massachusetts,HYPERLINK "http://scholar.google.com/scholar_case?case=3012582275354260465&q=erg+custody&hl=en&as_sdt=4,1" 321 U.S. 158, 166 (1944); Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984)


[5] Prince v. Massachusetts,HYPERLINK "http://scholar.google.com/scholar_case?case=3012582275354260465&q=erg+custody&hl=en&as_sdt=4,1" 321 U.S. 158, 166 (1944)(“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”)


[6] A license can create a property interest but it is not a right itself. The Court has previously held that a law license once obtained is a property right and due protections from government interference like other property rights.


[7] See http://www.al.com/news/index.ssf/2015/02/same-sex_marriage_in_alabama_t.html (“But, for the couples who did get married, Monday was a day of celebration. ‘I've always felt that we were married,’ Laura Bush said Monday evening. ‘It's always been that kind of relationship.’”); see also http://bigstory.ap.org/article/ap-interview-couple-reflects-gay-marriage (same sex couple weds years ago without marriage license).


[8] DeBoer 10-13


[9] DeBoer 10-13


[10] DeBoer 10-13


[11] See http://www.freerepublic.com/focus/f-news/2116149/posts. 

The Juvenile Criminal Court has some significant differences from the adult Criminal Court. In juvenile cases there is an emphasis placed on protecting the privacy of a child. We don't publicize cases that involve juveniles. We are committed to keeping juvenile defendants anonymous by not releasing their cases and closing the doors to the public. The doors to the courtroom are closed to the public and few other than officers of the court and witnesses attend any portion of a juvenile trial. This privacy is understandable and serves the purpose of protecting the child. However, sometimes this emphasis on privacy works against the child. when the child is not afforded a public trial they are not afforded the protection of public scrutiny of the process to which they are subjected. This prevents them from having a jury. The right to a jury is a significant protection granted by the 7th Amendment and the Constitution of Alabama.

Juvenile defendants are also subjected to different procedures with regard to the bedrock principle of being viewed as "innocent until proven guilty." If a juvenile is taken into custody they are entitled to have a hearing within 72 hours to determine whether or not they pose a threat to themselves or others. However, bond is not set. They cannot bond out at any cost. They can be held indefinitely even though they have not been proven guilty. 

Juveniles are also denied other rights granted to adults under the Constitution. The purpose of this narrative is not to list every defect in the law but to acquaint the public with the risks that are present due to a hyper sensitivity to privacy even to the detriment of fundamental rights. Feel free to comment below. All comments will be reviewed for spam. Differing viewpoints are welcome, but only relevant posts will be allowed.

Child support in Alabama is based on income factored in with the needs of the child. The state has a table that you can input the amount of income each parent has, the number of children involved, along with how much is spent on health insurance and daycare the numbers are then plugged into a formula that spits out a number. That number is presumed to be the correct amount of child support to be ordered unless the court finds a reason to justify deviating from the guidelines. What is interesting about this approach is that it fails to focus on the needs of the child while at the same time promoting divorce.

The idea behind child support is that parents have an obligation to care for their children and the state has an interest in seeing that children are properly cared for so that the burden does not fall on the tax payer. If the central focus is making sure that a child's needs are met, then why is child support based on income? All kids need food, shelter, and clothing regardless of how much money their parents make. These expenses can be quantified into static terms. A cheese burger costs the same regardless of income. However, one parent may pay $300.00 per month for a single child while another pays $1500.00 for a single child, though both children are happy and normal. The only difference is the income of the parents. These orders don't serve the government interest of making sure that children don't go hungry. While it is true that parents should provide for their children and should be generous, should the government force parents to do more than meet their children's needs? Should the government decide what extras in excess of the child's needs should be bestowed on a child?

When I was 16 years old my parents refused to buy me a car. They told me that I was going to have to work, save money and purchase the vehicle on my own. They believed that if I worked for it I would appreciate it more. This was a parenting decision, not a money decision. How parents care for their children is a parenting decision. When orders are put in place that do more than provide for the maintenance of a child a parent's rights are being infringed upon. 

You may argue that the parents should provide all that they have to their children, and you may be right; but should the government force them to do so? If a parent fails to pay child support they are subject to the court's contempt powers - in other words they may go to jail. Should parents be sent to jail for failing to pay for extras for their children? This is a fundamental violation of rights in my opinion.

The child support guidelines mentioned above are also flawed in that in some instances they are not only unfair, they are impossible. The US Department of Health and Human Services recently released some interesting statistics. They have found that parents that are ordered to pay more than 15% to 20% of their income in child support usually fail to pay at all. The burden becomes so great that it engenders despondency and guarantees failure. In some circumstances under the current guidelines parents are expected to pay more than 30% of their income in child support. The guidelines fail to account for the living expenses of the paying parent, a fact also lamented by the Dept. of Health and Human Services.

Child support is not paid to children. It is paid to custodial parents, usually mothers. This coupled with the ease of obtaining a no fault divorce has resulted in 75% of all divorces being filed by women not men. Children are not better cared for under these circumstances as set forth in the blog below. There is now an incentive to filing a divorce. You can terminate your marriage and have your ex-spouse supplement your lifestyle through child support payments.

The desire to see that children are well provided for is a worthy desire, but child support has gotten out of hand. It has invited the state into our homes to make parenting decisions and has discourage two parent involvement in children's lives. The system should be reformed to meet the needs of children (its original intent) not to empower government or supplement lifestyles.

Our federal government has opened the door to make historically positive impacts on the lives of nearly half of our nation’s children – those whose parents are separated, divorced or never married.

 

The U.S. Office of Child Support Enforcement is to be commended for setting out to update 35-year-old rules with the expressed interest in better serving our children. That said, as they stand, the proposals fall short of making real positive impact for families locally in Alabama as well as families nationwide. I urge the office to revise the proposal in a way that focuses on encouraging parental involvement.Keep in mind that this issue is particularly pressing in Alabama, where we have the fourth-highest divorce rate in the country.

The office states that the proposals aim to improve child well-being, but the changes focus solely on improving child support collections – an effort that both hard data and commonsense agree is not the answer to positively affecting the well-being of children. Instead, the primary purpose of the changes should be to promote parent involvement in instances when parents are divorced, separated or never married. When both parents play an active role in a children’s life, the child’s likelihood of success drastically improves. Consider the facts:

 

·         Fathers who have little or no contact with their children following a divorce pay about one-third of their child support, while fathers who regularly spend time with their children pay at least 85 percent of their child support, according to “Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy” by Harvard Law School Professor Robert H. Mnookin.

 

·         About 30 percent of parents with sole custody report a one-year absence of child support payments, yet when shared parenting exists, a year without payments is non-existent, according to “Supporting children after divorce: The influence of custody on support levels and payments” by Center for Policy Research’s Jessica Pearson and Nancy Thoennes.

 

·         American Psychological Association published a University of Texas Southwestern Medical Center paper last year by Richard Warshak, titled “Social Science and Parenting Plans for Young Children: A Consensus Report,” that concluded “a broad consensus of accomplished researchers and practitioners agree that, in normal circumstances, the evidence supports shared residential arrangements for children under 4 years of age whose parents live apart from each other.” The paper was endorsed by an international group of 110 top experts in early child development.

 

·         At a time when a growing number of U.S. children live in single-parent homes, the Center for Disease Control, the Department of Justice and the Bureau of the Census report that these same children account for a majority of teen suicides, high school dropouts, children with substance abuse problems, youths in prison, teen pregnancies, and homeless and runaway children.


The Alabama Department of Human Resources website reports that: 

"Children from father-absent homes are five times more likely to live in poverty, 3 times more likely to fail in school, two to three times more likely to develop emotional and behavioral problems, and three times more likely to commit suicide.
...

The chief predictor of crime in a neighborhood is the percentage of homes without fathers. Up to 70 percent of adolescents charged with murder are from fatherless homes. Up to 70 percent of long-term prison inmates grew up in fatherless homes."

http://dhr.alabama.gov/services/Family_Assistance/Fatherhood_Facts.aspx

Rather than simply focus its efforts on child support enforcement, our federal government should take steps to protect shared parenting, where both parents are fully engaged in their children’s lives, which serves not only the child’s best interest in terms of what they most want and need, but it also is the most effective way to bolster child support collections.

 

What’s particularly alarming is that despite the overwhelming amount of research that shows shared parenting post-divorce is best, according to the U.S. Census Bureau, just 17 percent of children whose parents are not together have a shared parenting arrangement. What’s more, in many instances, sole custody is ordered over shared parenting even though both parents are fit and desire to play significant roles in their children’s lives.

 

The absence of shared parenting shows just how out of touch our family courts are with the best interests of children as well as the needs of modern families. And now, our nation’s child support enforcement authority is considering a proposal that overlooks the importance of allowing children the opportunity to experience a childhood filled with the constant presence of both parents.

 

Please join me in urging the Office of Child Support Enforcement to go beyond addressing child support as a symptom of the problem by taking on policy changes that protect a child’s right to the love and care of both parents.

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.