Proposed Statute for Reform

Proposed Statute for Reform

For more info contact: Chuck Evans

The following material is from: Chuck Evans Columbus, Ohio

I respond in agreement with my personal observations of the legal theory (that is fully incorporated in the Galluzzo Dayton Federal Court case) that I developed over the past 6 years ago (in conjunction with thousands of hours of research over the past 6 years together with Dennis Caron-the fellow who helped get Ohio's paternity legislation passed- and the excellent, if not best law review article published in the University of Utah College of Law, Journal of Law and Family Studies, PARENTAL RIGHTS AND DUE PROCESS, Vol. 1, No. 2, pg. 123-150 (2000) written by Donald C. Hubin, Ph.D.. (Director PACE-Columbus). Here is the url for this http://www.cohums.ohio-state.edu/philo/people/faculty/hubin.1/Research/prdp.pdf

I want to point out that no matter how you attack my theory-it cannot be constitutionally defeated, therefore will stand the test of challenges and time.

The only legislation enacted for a presumption of "equal legal and physical custody" must be constitutionally compliant and therefore does not need to exceed several paragraphs. The requirement is that the legislation be narrowly construed and strictly scrutinized.

I have prepared a statute for Ohio that covers every issue, because it is constitutionally compliant, and yet is only several paragraphs, as opposed to the 7 or so pages of discretion of Ohio law that Mr. Galluzzo is challenging in the Dayton Federal District Court.

This is my proposal for Ohio (and EVERY State and the District of Columbia). The language could be identical for constitutional compliance in EVERY State (One must remember that EQUAL PROTECTION requires: similar parents must be treated similarly, therefore the language to treat similar parents throughout the U.S. should be similar).

I am fully aware that most every individual/attorney/judge/parent who reads this at first will say that the legislation as proposed does not cover every single circumstance. To that I say you must read it again and apply the circumstance, then it should become clear that the issue is covered. Further, I address the most important issues that affect relationships & cooperation, false allegations of any kind and move-away issues.

Constitutional law must be narrowly constructed and fundamental rights strictly construed. That is all that is necessary. I explain the constitutional construction and state issues in bold Notes beneath each section.

Chuck Evans Columbus, Ohio

Ohio Revised Code (R.C.) 3109.04 or any state statute REVISED:

(A) IN ANY DIVORCE, LEGAL SEPARATION, OR ANNULMENT PROCEEDING AND IN ANY LEGAL PROCEEDING PERTAINING TO THE LEGAL AND PHYSICAL CUSTODY OF MINOR CHILDREN, EACH PARENT SHALL RETAIN THEIR LEGAL RIGHT TO CUSTODY OF THEIR MINOR CHILDREN WHERE THERE IS NO FINDING OF PARENTAL UNSUITABILITY PURSUANT TO A PARENT BEING DETERMINED TO BE UNFIT, UNWILLING, OR UNABLE TO CARE FOR THE WELFARE OF THEIR MINOR CHILDREN, BY THE EVIDENTIARY STANDARD OF CLEAR AND CONVINCING EVIDENCE, PURSUANT TO A TRIAL BY JUDGE OR JURY.

{Note: This section fixes legal right (decision-making right) to custody, the rebuttable presumption, and definitions.}

(B) WHERE BOTH PARENTS ARE SUITABLE AND WHERE NEITHER PARENT IS DETERMINED TO BE UNSUITABLE BY THE EVIDENTIARY STANDARD OF CLEAR AND CONVINCING EVIDENCE PURSUANT TO A TRIAL BY JUDGE OR JURY, EACH PARENT SHALL RETAIN AN EQUAL PHYSICAL CUSTODY COMPANIONSHIP TIME ALLOCATION WITH THEIR MINOR CHILDREN.

(1) WHERE BOTH PARENTS ARE IN AGREEMENT TO EQUALLY SHARE IN THE PHYSICAL CUSTODY COMPANIONSHIP TIME OF THEIR MINOR CHILDREN, SUCH AGREEMENT SHALL BE REDUCED TO WRITING AND SHALL BE ACCEPTED BY THE COURT.

(2) WHERE ONE OR BOTH PARENTS DISAGREE TO EQUALLY SHARE IN THE PHYSICAL COMPANIONSHIP TIME OF THEIR MINOR CHILDREN, THE COURT SHALL ORDER AN EQUAL ALTERNATING PHYSICAL COMPANIONSHIP TIME SCHEDULE.

{Note #1: This section (B) fixes the equal protection of physical custody (companionship time right) where both parents are similarly situated, i.e., both parents have legal custody since both parents are fit, therefore similarly situated.}

{NOTE #2: Paragraph (B)(2) is where your state legislation/local rule/ mediator /or even a judge crafts out a specific schedule, i.e., where the schedule is TAILORED to order equal physical companionship time that fits BOTH parents schedules which is equal or where there is an agreed deviation of an equal arrangement. But remember, the deviation occurs at the parent's choice, not at the court's order. In this paragraph (B)(2), the state legislation could include language that forces the holdout parent(s) who disagree to equally share into mediation to craft a schedule, the result of the schedule being equal time or an agreed deviation, including Dan Lee's recommendation of alternating custody.}

(C) A PARENT WHO MAKES A FALSE ALLEGATION OF PARENTAL UNSUITABILITY AGAINST THE OTHER PARENT SHALL IMPLICATE THEIR LEGAL RIGHT TO CUSTODY OF HIS OR HER MINOR CHILDREN. THE PARENT ACCUSED OF MAKING A FALSE ALLEGATION OF PARENTAL UNSUITABILITY SHALL BE NOTIFIED IN WRITING OF THE SPECIFIC CHARGE, AND PURSUANT TO A TRIAL BY JUDGE OR JURY, THE COURT SHALL MAKE A FINDING OF WHETHER A FALSE ALLEGATION OF PARENTAL UNSUITABILITY WAS MADE BY THE EVIDENTIARY STANDARD OF CLEAR AND CONVINCING EVIDENCE. WHERE THE SPECIFIC FINDING OF A FALSE ACCUSATION IS DETERMINED TO HAVE BEEN MADE BY THE OFFENDING PARENT, THE COURT SHALL ORDER LEGAL CUSTODY OF THE PARTIES MINOR CHILDREN TO THE NON-OFFENDING PARENT. THE COURT SHALL PROVIDE THE OFFENDING PARENT THE OPPORTUNITY TO PARTICIPATE IN MEDIATION TO REDUCE INTO WRITING AN AGREEMENT TO A COMPANIONSHIP TIME SCHEDULE WITH THE PARTIES MINOR CHILDREN.

{Note: In this Section (C) the state legislation can include language that determines if the companionship time is to be supervised, unsupervised, local rule, etc., and can fix the length of time of the penalty (remember that this is a civil finding, not a criminal finding). Also, there can be a purge of the legal custody deprivation, say just for example, after one year of no further problems of false accusations, interference, etc., then the offending parent's legal right to custody is restored and the companionship time can be restored by crafting an incremental increase in time, an equal time schedule, or an agreed deviation time schedule. For more serious or repeat civil offenses, then this section can also reflect the penalty for further abuse.}

(D) A PARENT WHO CHOOSES TO RELOCATE OUTSIDE OF THE IMMEDIATE AREA WHERE THE MINOR CHILDREN AT ISSUE WERE RAISED BY THE PARTIES, OR WOULD HAVE BEEN RAISED BY THE PARTIES, SHALL FORFEIT THEIR LEGAL RIGHT TO CUSTODY OF THEIR MINOR CHILDREN IF THE RELOCATING PARENT CANNOT MAINTAIN THE MINOR CHILDREN'S SCHEDULE WITHOUT INTERRUPTION.

(1) WHERE BOTH PARENTS ARE IN AGREEMENT TO A COMPANIONSHIP TIME SCHEDULE THAT ACCOMMODATES THE MINOR CHILDREN'S SCHEDULE, SUCH AGREEMENT SHALL BE REDUCED TO WRITING AND SHALL BE ACCEPTED BY THE COURT.

(2) WHERE ONE OR BOTH PARENTS DISAGREE TO AN AGREED COMPANIONSHIP TIME SCHEDULE, THE COURT SHALL ORDER BOTH PARENTS INTO MEDIATION TO REDUCE INTO WRITING A COMPANIONSHIP TIME SCHEDULE THAT PERMITS BOTH PARENTS TO PARTICIPATE IN THEIR PARENT-CHILD RELATIONSHIP THAT ACCOMMODATES THE CHILDREN'S SCHEDULE.

{Note: In this section (D), due to conflicts with the right to intrastate travel (the relocating parent must waive their liberty right to legal custody, therefore the relocating parent is no longer similarly situated to the nonrelocating parent [by an implied civil finding of the relocating parent being unwilling or unable to be a suitable parent in the context of disturbing the existing parent-child relationship parameters as determined in (A)] in order not to deny conflict with another fundamental right. Equal protection of physical custody is no longer applicable for the right to legal custody has been waived voluntarily by the decision to relocate. This is a voluntary decision to relocate...for if the parent did not voluntarily decide to move-away, their legal and physical custody right would not be disturbed.} But, this section still recognizes the fundamental nature of both fit parents reciprocal participation in their children's lives.}

Additional Notes:

(A) Parents determined to be unsuitable by an involuntary finding by the state domestic court would be subject to more restricted companionship time, if any, supervised or unsupervised, solely at the discretion of the court. This issue is outside the scope of equal parental rights for FIT parents. And, due to the specific circumstance that relocation is a voluntary admission, see the implied issues in Section (D)-see also the Note following (D), are not applicable to the discretion of the state court as would be an involuntary finding.

(B) For serious criminal offenses, abduction, escalated false allegations, the criminal statutes provide all the language necessary to deal with these extreme issues.

Authored by Chuck Evans Columbus, Ohio