Post by Jim on Apr 1, 2011 19:49:43 GMT -5
“In a perfect world, having both parents there to raise the child is the right way,” he said, “but we’re not living in a perfect world. And during a divorce, people are not at their best.”
Mr. White misses the point in that the key factor is the current system pits each fit parent against one another and that causes "parents not to be at their best" and the child loses.
The Children's Family Act removes the need for the fighting process and places child rearing decisions on the fit parents, not the state of Alabama.
The following is where current Alabama law is failing children and each fit parent. Just because parents divorce does not make them unfit.
Over the 19 years of the Child's minority, an 80/20 “[Alabama] standard visitation" works out to only 4 years out of 19 with one parent. Is such court-ordered limited parenting time with only one of the Child’s two fit parents in the best interest of any Child?
The Supreme Court of the United States in Troxel v. Granville, 530 U.S. 57 (2000) said the following,
“[T]he Due Process [fundamental fairness] Clause [of the 14th Amendment] does not permit a State [judge] to infringe on the fundamental right of [Fit] Parents to make Child rearing decisions simply because a judge believes a ‘better’ decision could be made."
This due process violation happens daily in Alabama courtrooms. Many times the judge in a contested Child custody determination will not state any reason whatsoever to support the decision. In the absence of findings of fact one or both parents are unfit (which then authorizes intrusion into the parent-child relationship by the court) a Trial Court’s lopsided Parenting time order is unconstitutionally overbroad.
Before the State may constitutionally implicate the fundamental liberty interest of a fit parent, there must be clear and convincing evidence of substantial harm by the Parent to the Child. Santosky v. Kramer, 455 U.S. 745 (1982). Otherwise, the State has no compelling interest which justifies the State [judges] dictating to the fit Parent what is in the best interest of the Child.
Therefore, until a Parent has been proven to be unfit by clear and convincing evidence, no factual condition precedent triggers the parens patriae authority of the State of Alabama to act in place of the fit Parent and decide what is in the best interest of the minor Child. In the typical custody case in which neither fit Parent has caused substantial harm to the Child, Constitutional principles of equal protection and due process require the State’s Child Parenting orders to treat each of the fit Parents as peers, i.e. the equals they are in both fact and law. Due process and equal protection of the laws require that equal citizens at the bar of justice be treated with equal dignity and respect at the bar of justice. In order to pass Constitutional muster, the State of Alabama’s Child Custody orders must scrupulously avoid discriminatory time split favoring either fit Parent - until one party has proven the requisite facts of parental unfitness, which then allows the State to constitutionally treat the Parents differently. This is not currently happening in Alabama family law and why The Alabama Children’s Family Act should become Alabama law.
Of course, the Alabama Court may enter any Parenting time Order which implements any Parenting plan the fit Parents may voluntarily agree. However, if the fit Parents do not agree on a Parenting plan, the Alabama Court’s only constitutionally compliant recourse is to Order equal Child custody between the two fit Parents. In so doing, the Alabama Court protects the constitutional right of the Child to freedom of association with each Parent, treats each Parent with the requisite respect and dignity due to a fit Parent, and equally protects the right the Child to a meaningful relationship with each fit Parent. To do otherwise not only violates the fundamental liberty interest of each fit Parent to a relationship with the minor Child free of unwarranted interference by the State of Alabama, it also violates the liberty interest of the minor Child to be with each fit Parent free of unwarranted interference by the State of Alabama.
Parenting time held to be equal can be any Parenting time arrangement, daily or weekly, when the Parent’s are located in close proximity to one another. Or in two to three year allotments when Parents live long distances apart. Children with Parents in the U.S. military are required to move to different duty stations every three to five years. If such move does not create instability for Children of military Parents, same is true for Children of divorced or unwed fit Parents. Stability for a child - absent a judicial determination of Parental unfitness - is a decision for fit Parents, not the State of Alabama.
BEST INTEREST OF THE CHILD RESIDES FIRST IN THE FIT PARENT, NOT IN THE STATE
In Parham v. J.R., 442 U.S. 584 (1979), the Supreme Court of the United States declared:
“[T]he best interest of the Child' resides in the fit Parent - not in the state: "Our constitutional system long ago rejected any notion that a Child is a "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 page 602.”
“Accordingly, so long as a Parent adequately cares for his or her Children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that Parent to make the best decisions concerning the rearing of that Parent's Children.” See, e.g., Flores, 507 U.S., at page 304.”
STATE LAW MUST CONFORM TO THE U.S. CONSTITUTION
The Supreme Court of the United States in Cooper v. Aaron, 358 U.S. 1 (1958), at page 18, quoting Ableman v. Booth, 62 U.S. 506 (1859), said the following:
"[T]he interpretation of the Fourteenth Amendment enunciated by this [U.S. Supreme] Court ... is the supreme law of the land, and [the Constitution] makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." At page 19, "Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to [the Constitution] "to support this Constitution." Chief Justice Taney, speaking for a unanimous [U.S. Supreme] Court, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State …"
THE STATE CANNOT PRESUME UNFITNESS
[The U.S. Supreme Court] "held that a state cannot presume a Parent is unfit or that a Parent's exercise of his rights is harmful to his Child.” See Santosky v. Kramer, 455 U.S. 745 (1982) (cannot presume a Parent and Child's rights are divergent and that the Parent's exercise of his rights is thus harmful to the Child); see also Stanley v. Illinois, 405 U.S. 645 (1972) (cannot presume an unwed [Parent] is unfit to have custody of [his/her] Children).
"In Stanley v. Illinois, 405 U.S. 645 (1972), the [U. S. Supreme] Court held that the State of Illinois was barred, as a matter of both due process and equal protection, from taking custody of the Children of an unwed father, absent a hearing and a particularized finding that the father was an unfit Parent." Quilloin v. Walcott, 434 U.S. 246, 247-48 (1978).
The State has no interest in interfering with the Parental rights of fit Parents because such Parents are presumed to act in their Child's best interests. Parham v. JR, 442 U.S., at page 602 (The "natural bonds of affection lead Parents to act in the best interests of their Children."); see also Troxel, 530 U.S. at page 69, (applying the "presumption that a fit Parent will act in the best interest of his or her Child").
Mr. White misses the point in that the key factor is the current system pits each fit parent against one another and that causes "parents not to be at their best" and the child loses.
The Children's Family Act removes the need for the fighting process and places child rearing decisions on the fit parents, not the state of Alabama.
The following is where current Alabama law is failing children and each fit parent. Just because parents divorce does not make them unfit.
Over the 19 years of the Child's minority, an 80/20 “[Alabama] standard visitation" works out to only 4 years out of 19 with one parent. Is such court-ordered limited parenting time with only one of the Child’s two fit parents in the best interest of any Child?
The Supreme Court of the United States in Troxel v. Granville, 530 U.S. 57 (2000) said the following,
“[T]he Due Process [fundamental fairness] Clause [of the 14th Amendment] does not permit a State [judge] to infringe on the fundamental right of [Fit] Parents to make Child rearing decisions simply because a judge believes a ‘better’ decision could be made."
This due process violation happens daily in Alabama courtrooms. Many times the judge in a contested Child custody determination will not state any reason whatsoever to support the decision. In the absence of findings of fact one or both parents are unfit (which then authorizes intrusion into the parent-child relationship by the court) a Trial Court’s lopsided Parenting time order is unconstitutionally overbroad.
Before the State may constitutionally implicate the fundamental liberty interest of a fit parent, there must be clear and convincing evidence of substantial harm by the Parent to the Child. Santosky v. Kramer, 455 U.S. 745 (1982). Otherwise, the State has no compelling interest which justifies the State [judges] dictating to the fit Parent what is in the best interest of the Child.
Therefore, until a Parent has been proven to be unfit by clear and convincing evidence, no factual condition precedent triggers the parens patriae authority of the State of Alabama to act in place of the fit Parent and decide what is in the best interest of the minor Child. In the typical custody case in which neither fit Parent has caused substantial harm to the Child, Constitutional principles of equal protection and due process require the State’s Child Parenting orders to treat each of the fit Parents as peers, i.e. the equals they are in both fact and law. Due process and equal protection of the laws require that equal citizens at the bar of justice be treated with equal dignity and respect at the bar of justice. In order to pass Constitutional muster, the State of Alabama’s Child Custody orders must scrupulously avoid discriminatory time split favoring either fit Parent - until one party has proven the requisite facts of parental unfitness, which then allows the State to constitutionally treat the Parents differently. This is not currently happening in Alabama family law and why The Alabama Children’s Family Act should become Alabama law.
Of course, the Alabama Court may enter any Parenting time Order which implements any Parenting plan the fit Parents may voluntarily agree. However, if the fit Parents do not agree on a Parenting plan, the Alabama Court’s only constitutionally compliant recourse is to Order equal Child custody between the two fit Parents. In so doing, the Alabama Court protects the constitutional right of the Child to freedom of association with each Parent, treats each Parent with the requisite respect and dignity due to a fit Parent, and equally protects the right the Child to a meaningful relationship with each fit Parent. To do otherwise not only violates the fundamental liberty interest of each fit Parent to a relationship with the minor Child free of unwarranted interference by the State of Alabama, it also violates the liberty interest of the minor Child to be with each fit Parent free of unwarranted interference by the State of Alabama.
Parenting time held to be equal can be any Parenting time arrangement, daily or weekly, when the Parent’s are located in close proximity to one another. Or in two to three year allotments when Parents live long distances apart. Children with Parents in the U.S. military are required to move to different duty stations every three to five years. If such move does not create instability for Children of military Parents, same is true for Children of divorced or unwed fit Parents. Stability for a child - absent a judicial determination of Parental unfitness - is a decision for fit Parents, not the State of Alabama.
BEST INTEREST OF THE CHILD RESIDES FIRST IN THE FIT PARENT, NOT IN THE STATE
In Parham v. J.R., 442 U.S. 584 (1979), the Supreme Court of the United States declared:
“[T]he best interest of the Child' resides in the fit Parent - not in the state: "Our constitutional system long ago rejected any notion that a Child is a "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 page 602.”
“Accordingly, so long as a Parent adequately cares for his or her Children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that Parent to make the best decisions concerning the rearing of that Parent's Children.” See, e.g., Flores, 507 U.S., at page 304.”
STATE LAW MUST CONFORM TO THE U.S. CONSTITUTION
The Supreme Court of the United States in Cooper v. Aaron, 358 U.S. 1 (1958), at page 18, quoting Ableman v. Booth, 62 U.S. 506 (1859), said the following:
"[T]he interpretation of the Fourteenth Amendment enunciated by this [U.S. Supreme] Court ... is the supreme law of the land, and [the Constitution] makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." At page 19, "Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to [the Constitution] "to support this Constitution." Chief Justice Taney, speaking for a unanimous [U.S. Supreme] Court, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State …"
THE STATE CANNOT PRESUME UNFITNESS
[The U.S. Supreme Court] "held that a state cannot presume a Parent is unfit or that a Parent's exercise of his rights is harmful to his Child.” See Santosky v. Kramer, 455 U.S. 745 (1982) (cannot presume a Parent and Child's rights are divergent and that the Parent's exercise of his rights is thus harmful to the Child); see also Stanley v. Illinois, 405 U.S. 645 (1972) (cannot presume an unwed [Parent] is unfit to have custody of [his/her] Children).
"In Stanley v. Illinois, 405 U.S. 645 (1972), the [U. S. Supreme] Court held that the State of Illinois was barred, as a matter of both due process and equal protection, from taking custody of the Children of an unwed father, absent a hearing and a particularized finding that the father was an unfit Parent." Quilloin v. Walcott, 434 U.S. 246, 247-48 (1978).
The State has no interest in interfering with the Parental rights of fit Parents because such Parents are presumed to act in their Child's best interests. Parham v. JR, 442 U.S., at page 602 (The "natural bonds of affection lead Parents to act in the best interests of their Children."); see also Troxel, 530 U.S. at page 69, (applying the "presumption that a fit Parent will act in the best interest of his or her Child").
