Parental Rights v. Parens Patriae: Ending Custody Litigation

From ancient times to modernity, political philosophy has grappled with the sensitive relationship between the child, family, and state.

In The Republic, Plato wrote:

“The wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter.”

In Orthodoxy, G.K. Chesterton observed:

“In short, the democratic faith is this: that the most terribly important things must be left to ordinary men themselves—the mating of the sexes, the rearing of the young, the laws of the state.”

Like Plato, modern-day utopian thinkers have always looked upon the parent-child relationship with suspicion at best, and more often as the crucial obstacle to ultimate state power over the individual. Respect for the autonomy of the family is as central to the democratic ideal as popular sovereignty. The democratic experiment is founded on an optimism in the ability of the people to manage their own affairs, in their capacity as citizens with authority over “the laws of the state,” and in their capacity as parents with authority over “the rearing of the young.” Therefore, restoring parental rights to its original firm foundation in U.S. constitutional law is crucial to the democratic ideal of citizenship.

Over the last century, the concept of family has been redefined subsequent the end of suffrage and enactment of the Civil Rights Act which legally mandated, “equality” for women. A patriarchal society has rapidly been replaced with a matriarchal society. Radical feminist, seeing patriarchal oppression everywhere, have waged a jihad against men and everything masculine using the state to promote matriarchy. The marriage contract is now meaningless. Marriage has become a sort of heterosexual lesbianism with the man as little like a man as possible while having complementary genitals.¹

By promoting divorce in the name of women’s liberation and establishing how the state determines custody in divorce, feminist seek to insure female control over the young, and thus over future civilization.

Men by nature don’t involuntarily subordinate themselves to women, especially women that insist on competing with men rather than accepting the immense benefits offered by male chivalry. While the lioness may be a ferocious hunter, the lion rules the pride. It would be a very foolish lioness that refused to do the grocery shopping and expected the state to force lions to do the grocery shopping or order take-out. Only an over-civilized fool would suggest that women can replace men yet it seems modern Western society is intent on defying nature and establishing an androgynous society.

For centuries, the family was the stable fundamental unit of society and fathers were the undisputed sole custodian of their children. Divorce was minimal under patriarchy and democratic civilization flourished. With the advent of no-fault divorce and the pervasive feminist notion that all women are victims of patriarchy, divorce has become the rule rather the exception. While some men may have abused their wives or children, it is far more the exception than the rule. Government statistics support the premise that the best anti-poverty, anti-crime program ever devised was traditional marriage.

It was Adolf Hitler who urged that “the state must declare the child to be the most precious treasure of the people” and who explained, in the words of Rabbi Daniel Lapin, that “as long as government is perceived as working for the benefit of children, the people happily will endure almost any curtailment of liberty.”² It is a page from the radical feminist playbook, in that an emotional argument will overcome rational thought and rule of law based in Judaeo-Christian teachings.

The feminized state, in the name of benefiting children, has attempted to assume the role of fathers though welfare and support enforcement. Granting effective sole custody of the children to the mother, and reducing fatherhood to visitor status is not only bad government policy but contrary to the most fundament legal principals, religious teachings and in defiance of nature itself.

Few seem to understand that the reason a man marries is that he anticipates a chaste wife and inalienable children in return for his efforts to slay the daily dragons that make civilization possible and productive. Take away that motivation, especially his children and make him a financial slave to an ex wife in the name of his children and the very reasons we have modern civilization disappears.

Western civilization is the patriarchal product of good men seeking to protect their wives and children and is ultimately dependent on presumed father custody. Remove this motivation and men no longer act in a civilized manner and the result is evident everywhere in modern society.

Subsequent to suffrage and women’s liberation the state determined custody based on the so called “tender years doctrine,” insuring maternal custody. When government figured out that collecting child support was far easier when men have some legal custody, this was replaced by presumed joint custody and a “best interest of the child” criteria which greatly favors maternal residential custody and leaves fathers as weekend visitors.

By what authority does the state have the power to make such custody determinations? As parens patriae many incorrectly believe.

The state now grants a single judge the power to impose their will and beliefs on the parents by custody order on a completely subjective criteria supported by virtually unlimited discretion which generally supports political correctness rather than logic or legal science. How can the state make such a custody determination if the fit parents, fathers and mothers, have absolute equal Constitutional rights to control the rearing of the young?

When you think about a custody order, bear in mind that it’s very simple legal concept. A custody order is just an injunction.

We take parents who previously had unrestricted freedom, parents who previously had unrestricted access to their children, and now we enjoin them from exercising part of that prior right. The term “custody award” is a complete misnomer. The rule for dealing with injunctions in every other area of the law is, you impose the minimum restriction on the parties’ prior freedom. You put only the smallest imposition, the smallest restriction on them necessary to resolve the dispute at hand. You don’t go to a disruptive extreme.³ Rationally, the Court must protect parental rights including the continued involvement of both parents and impose only the minimum necessary restrictions just as we would do with any other kind of injunction.

In 2000, in Troxel v. Granville the Supreme Court determined that the state can not apply the subjective “best interest of the child” criteria contrary to the wishes of a presumably fit parent’s wishes.

If parental rights are Due Process Clause, Constitutional 14th Amendment liberty interest rights, as reaffirmed in Troxel v. Granville, then one must conclude the general concepts of injunctions must apply and both parents must be granted equal opportunities to direct the upbringing of their children. It is logically not in the state’s power to apply a “best interest of the child” criterion when determining custody in situations where there has been no showing that either parent is unfit or a danger to the children. It follows, unless the parents agree otherwise, a legal and physical shared 50:50 parenting is the only custody guaranteeing the Constitutional parental rights.

I posed this argument to the matriarch of family law, Professor Linda Elrod. She offered no rational objection, choosing to rather argue her belief that “children have rights.” I conclude that if scientist and engineers applied “legal logic” to natural laws, we would still be in the dark ages and if society continues to permit “legal logic” to control family law, society will return to the dark ages.

Not too surprising, divorce rates dropped when presumed joint custody became the de facto standard and will drop even more if legal and physical shared 50:50 parenting becomes the de facto standard.

The only appropriate questions regarding custody for the state should be determination if a parent is a fit parent. Judicial discretion regarding the subjective “best interest of children” criteria should no longer be an issue.

Any custody order differing from the 50:50 shared parenting must be by stipulation of the parents with appropriate support order and enforcement should be by criminal statute.

In general the best parent for any child is their two natural parents. If the end societal goal is to maintain Western civilization and produce responsible, productive, law abiding parents, then both mother and father must have equal rights to utilize their natural instincts to protect and nurture their children free of government influence promoting some unnatural utopian androgynous society.

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. Continued denial of father’s rights in family courts will lead to increasing male contempt for the law and ultimately to anarchy and a failed civilization. All of history has proven the surest way to provoke a male to violence is to unjustly deny his most fundamental natural rights.

Endnotes:
1) Thanks to Fred Reed for this fitting description of modern marriage.
2) Thanks to Steve Baskerville for this analogy to Hitler’s methods.
3) Thanks to Ronald Henry, for offering this legal argument on behalf of Children’s Rights Council in testimony before Congress in support of joint custody legislation for
District of Columbia more than a decade ago.