Constitutional Laws » Fundamental Rights

Family Courts Tyrannically Deny Fit Fathers Their Constitutional Right to Parent Their Children

Admin — Sat, 12 Dec 2009 18:56:38 +0000

courts routinely deny one fit parent – overwhelming the father- his parental right to raise his child. They tyrannically allege a right to deny father’s fundamental rights since they do so for ‘the best interest of the child’.

Such family court claims are tyrannical and directly conflict with constitutional rights and protections – as this article shows.

Fundamental or ‘Constitutional’ rights are enumerated in the Bill of Rights, the further Amendments, and rights raised to that level by Supreme Court Case law. Supreme Court case law overrides all lower jurisdictional laws including family courts procedures.

The Fourteenth Amendment prohibits the state from depriving any person of “life, liberty, or property (i.e. any fundamental right), without due process of law.” Due Process Clause “guarantees more than [a] fair process.”Washington v.Glucksberg, 521 U.S. 702, 719 (1997). It includes a substantive component to the process that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720; see also Reno v. Flores, 507 U.S. 292, 301302 (1993).

The Supreme Court consistently upholds parental right as a fundamental constitutional right. And that’s the right to determine what the best interest of the child shall be.

The Supreme Court asserted that the ‘liberty’ protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923). So parenting includes both legal and physical custody of your children.

To deny a parental right requires constitutional due process that proves he’s either unfit or a clear danger to his children – proven with ‘clear and convincing’ evidence. As such, Santosky v. Kramer 455 U.S. 745 (1982) emphasized to restrict a fundamental right of a parent to any extent, requires a showing of clear and convincing evidence that serious harm will come to the child.

Family courts ignore all constitutional due process when they daily deny a fit father his right to physical and legal custody of his child – a right that every other fit parent has.

Family Court claims to determining ‘best interests of children’ over fit fathers’ rights are illegal in a presumably free republic. Only if there are no fit parents can the court invoke the ‘best interest of the child’ doctrine to assign custody.

In Parham v. J.R. et al 442 U.S. 584 (1979), the Supreme Court declared the ‘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.”

In the 1978 case of Quillon v Walcott, the Supreme Court ruled: “If a state were to attempt to force the breakup of a natural family, over the objection of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest,” the Due Process Clause would clearly be violated.

In 2000, the United States Supreme Court ruled in Troxel v. Granville 530 U.S. 2000: “[S]o 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.”

Under divorce and paternity actions, the ‘equal protection clause’ of the 14th Amendment, requires that one fit parent must necessarily retain all of his fundamental rights to the extent that the other does. But two disputing parents can’t both exercise a few decisions – such as where a child goes to school simultaneously – but these are few.

Now the level of scrutiny required for a family court to infringe upon fundamental rights of either parent is “strict scrutiny”, which requires the court to show that the infringement serves a “compelling state interest” and that there is no constitutionally less offensive way for the state to satisfy this compelling interest.

The constitutionally least offensive way – by far – is an equal partition of time parenting their child. So, during one’s parenting time, that parent can control all decisions about the child which parenting implies, i.e. education, religion, medical, etc, as well as the typical day to day decisions.

The family courts deny a father’s fundamental rights in order to extort money from him and support a billion dollar industry based on such denials. They provably work to the ‘worst interests of the children’

By: Shane Flait

Constitution of India – a Bold Experiment

Admin — Wed, 16 Sep 2009 23:41:04 +0000

Indian Constitution – A Bold Experiment

Our constitution is not a novel formation of the constituent assembly, the various parts of the constitution has been derived from the working constitutions of other nations. As we know the fundamental rights enshrined in Part 3 and our federal structure of governance with a strong centralizing tendency has been taken from the American Constitution. The fundamental duties from the Irish Constitution and the parliamentary system of democracy with an independent judiciary from the England. We have been fortunate enough that our founding fathers took the initiative to inculcate such essential freedoms and form of governance in the most sacred law of the land, without which perhaps we would have resorted to an autocratic form of government akin to the British rule in India. Our forefathers had given us the tools that were essential for building a nation that had been ravished by the scourge of multi-ethnic wars and colonialism for decades, but in my respectful submission the moot question which they possibly did not envisage was whether our diverse cultures coupled with the burden of illiteracy would be able to handle these tools effectively. Sixty years down the line we might say that our democracy is the largest in the world and has been a grand success, but if we look minutely we can find that it is working mechanically. When we look into the majority flooding our constituent assembly we can see power hungry ministers who hardly have any concern for the masses.

If we go back to history we can find a possible answer as to why we have such a gloomy situation in our country. The ideologies of democracy, federalism and fundamental rights have been taken from the Western world, where people have attained there rights through struggle. The French Revolution of 1789 resulted in the: La Déclaration des droits de l’Homme et du citoyen) which is one of the fundamental documents of the French Revolution, defining a set of individual rights and collective rights of all of the estates as one. Influenced by the doctrine of natural rights, these rights are universal: they are supposed to be valid in all times and places, pertaining to human nature itself. We can also draw inspiration from the American Declaration of Independence in 1776 which came after 8 long years of war and it declared that “…..We hold these Truths to be self-evident, that all Men are created equal, that they are endowed, by their CREATOR, with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness….” These monumental documents arose out of an unprecedented social and political struggle.

We did recognize these rights in our constitution but our illiterate masses remained oblivious to its true meaning as they were far away from these ideologies as they struggled for their basic necessities; which were further enhanced in the aftermath to the creation of two separate countries after independence when millions were left homeless and thousands were massacred. We still have people who are unaware of their own basic rights. Our founding fathers had borrowed these principles from the Western society and had imported and transplanted them on our backward, semi-feudal society. Consequently our constitution and our society do not correspond with each other the former being modern while the later being backward. The belief that by merely importing and transplanting a modern Constitution on a backward society will result in our society quickly becoming modern has proved to be a mistake. We have still today a lot of casteism and communalism in our society.

At the same time it cannot be said that the Indian constitution is merely a paper document, by setting up modern ideals the Constitution is pulling society forward the goals of creating a modern society. No doubt that it has not done so automatically merely by its promulgation but it has reduced the pain, agony and duration which Western societies had to go through during the period of their transition from feudal agricultural society to modern industrial society. This transitional period is a very painful period and its is only after going through this fire that a transformation can be brought about

India is presently passing through this fire. We need to first bring our society and its attitude at par with the modern world, free from all the bias and inequality; after all the constitution is for the people, of the people and by the people of this nation .Our constitution makers had indeed made a bold experiment when they created the constitution in the backdrop of the society which prevails in our country. However the Constitution if implemented in its true spirit, will be a boon to us, it is up to us to give it teeth and make the dream of our founding fathers a reality.

By: Debjyoti Sarkar