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The Family Rights Act of 2000 - rev c (1/5/00), changes in red
(see comments submitted, view previous revision)

I. AN ACT:

1. to recognize:

   1. that the current patchwork of Family Law in the United States has become a tragedy in which both parents and children are victims,

   2. that one of the most basic rights of any person is to associate with their children,

   3. that the vast, vast majority of mothers and fathers are good people and good parents trying to do the best they can,

   4. that most practioners in the present "system" mean well but are operating in a difficult environment where there is great administrative power,

   5. that the "best interests of the child" are served by recognition of these rights and regular and frequent contact with both parents (barring a Jury finding the person is unfit to parent).

2. to enforce some of our most basic Civil Rights:

   1. the constitutional right of both parents to associate with their children and participate in their lives free of government interference ,

   2. the constitutional right of family members to be secure in their homes,

   3. the constitutional right of parents to change employment or careers throughout their lives,

   4. the standard of conduct and proof required for a parent to maintain an equal relationship with their children should be no more for a parent who is experiencing a divorce from their spouse -- than for a parent not experiencing a divorce.

3. to encourage:

   1. the American people to realize the birth and raising of a child is an important decision that is not to be taken lightly and which will place them (whether they like it or not) in proximity to the other parent for many years.

   2. the States to institute programs in parenting and marriage for young people, and to require attendance in pre-marriage classes before a Marrial License is granted.

4. to provide:

   1. that the provisions of this Act become the "default" agreement between individuals before they form a family,

   2. that the States and/or individuals are free to institute other agreements to replace this Act, but the acceptance of those provisions must require free will acceptance by the part of any individual to be affected,

   3. for the involuntary termination of the preceding rights only when the family member is found unfit to parent  -- with the same standard of jury protection and speedy trial,

5. to confer jurisdiction upon the district courts of the United States to provide injunctive relief,

6. to authorize the attorney General to institute suits to protect such rights

7. and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Family Rights Act of 2000".

II. DEFINITIONS:

1. The term "parent" applies to both the biological father and mother of a child. If the biological parent is deceased or has taken action to leave the child for adoption --it then means the adopted parent(s).

2. The term "family member" means either a child or parent.  The term applies to parents who are unmarried, married, or divorced.

3. The term "home" means a living area which is either owned or rented by the individual.

4. The term "Unfit to Parent" means to be found guilty of Criminal Misconduct against a child. This is a serious accusation, and a person accused has the protection of a Jury.  The burden of proof is on the prosecutor to show this person has engaged in conduct of the type, such that if similar conduct  were done by any other parent in the community, they would be found guilty of the same crime.

5. The term "attempting to escape support" means a willful attempt by a parent to reduce their Child Support obligation by reducing their income primarily for the purpose of reducing the payment. This is a serious accusation, and a person accused has the protection of a Jury.

6. The term "speedy trial" means that if a parent is charged with misconduct which could result in a "temporary" order either limiting access to their home or to their children -- they have the right to be brought to trial on the charges within 60 days (even if they are not imprisoned as is the usual rule in Criminal cases).

III. BACKGROUND:

This Act is drawn in the light of the following sections of the U.S. Constitution:

Seventh Amendment - "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . "

Ninth Amendment - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people … "

While the framers of the Constitution did not  include "matrimonial" issues specifically within these amendments, divorces were not then considered matters within the "common" law, but rather church law - we consider the present day frequency and ease of Divorce proceedings (and their devastating effect on families). This "evolution" have would have caused the "founding fathers" some concern. Especially when considered with those words from our:

Declaration of Independence: "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."

Americans have always held to the tradition that "Liberty" and "Life" rights deserve our greatest protections. What of "Happiness?" And what greater and purer "Happiness" can there be in life than the relation between parent and child?

Who among us, when faced with a Court proceeding in which we felt a Judge or Government offical  was about to unjustly limit contact with our children - would not want the safety valve of a jury?

Who among us would not want a presumption we be allowed equal contact with our children?

The right to the company of one's children/parent  is a right preserved to the people.

IV. IMPLEMENTATION

The following scenarios are examples reflecting adherence to the goals of this Act.  Unless a parent is found unfit -- the relationship with the children continues unbroken.

1. There is a family living in a home with children.  One parent decides to initiate a Divorce Proceeding against the other. Regarding Physical Custody:
   
   1. Other than voluntarily, the other parent cannot be forced to leave the home  unless they are found "Unfit to Parent". They have the right to Jury protection if such a charge is brought and to speedy trial.
   2. If both parents are seeking divorce one may be required by the Court to leave the home.
   3. Voluntarily, either of the parents may leave the home and start residence elsewhere in the same locality (within app. 30 minutes driving).  The children will continue at the school of the original residence and will spend app. equal time at the homes of both parents. The standard arrangment will have the child spend alternating weeks with each parent.
   4. The preceding paragraph applies even after a Divorce is granted.
   5. If a parent decides to move farther away the children will not be moved unless the other parent is "Unfit to Parent". Special emphasis will be given for the children having vacation time with that parent.
      
2. Regarding Legal Custody. Unless a parent is found "Unfit to Parent", there shall be JOINT legal custody of children between the parents. If there is disagreement:

   a. One parent will have the "tie breaking" vote for the year. That authority will alternate each year.
   b. If the other parent wishes to pursue the decision in Court, mediation will be required first.

3. There is a family living in a home with children.  One parent makes an accusation of domestic violence (between parents) against the other:
   
   1. Other than voluntarily, the other parent cannot be forced to leave the home  unless they are found guilty of Criminal misconduct. They have the right to Jury protection if such a charge is brought and to speedy trial.
   2. Any law which provides for "automatic" arrest, without requiring  independent corroborating evidence for the responding police officer, violates this Act.
   3. In and of itself, a charge or conviction of "Domestic Violence"  against another parent does not make someone "Unfit to Parent".
      
4. There is a family living in a home with children.  One parent makes an accusation of domestic violence, sexual abuse by the other parent against the children:
   
   1. Any law which provides for "automatic" arrest, without requiring  independent corroborating evidence for the responding police officer, violates this Act.
   2. Other than voluntarily, the other parent cannot be forced to permanently leave the home  unless they are found guilty of such  misconduct. They have the right to Jury protection if such a charge is brought and to speedy trial.
      
5. There is a separated family, with the children spending equal time with both parents. Regarding financial support of the children:
   
   1. The amount of support paid may be based on both real assets and income as would be reported in a Federal Tax Return.  The use of "imputed" income is not allowed  unless the person is found to be guilty (by a Jury) of attempting to escape support.
   2. A parent is always free to change their job and the Support Payment must be adjusted to reflect actual income (and may be adjusted retroactively and slowly corrected). The only exception is if the person is found to be guilty  (by a Jury) of attempting to escape support.
      
6. A finding of "Unfit to Parent" is a severe finding and should be infrequent (less than 5% of all cases):
   
   1. All parents can be a little better or improve in their skills (this should NOT reduce their time with their children). The standard is not to be applied to just parents going through a divorce, but to all parents in the community.  Their are a wide variety in parenting styles in our nation.
   2. We would hope states could offer parents optional "skills" classes in different areas of child-rearing.
      

V. Rejected Implementations

The following implementation ideas are not supported, brief rationale is given:

1. "Having Juries would slow the system down to much!!!!"
   
   1. This same argument would probably be made against our criminal justice system -- but actually it encourages a fair decision and settlement. Any suspected criminal who is presented with a "plea" to avoid trial can make the decision to accept the punishment -- or demand a trial and have his accusers prove their case.  In Family Law, once the Judge thinks you are "guilty" -- thats it!
   2. With a clear standard of "Unfit to Parent" -- most of the petty accusations that really do bog the system down would be dropped.
      
2. "Let the child decide who they want to live with is -- it is their right"
   
   1. None of us had even the smallest say in deciding who our parents were. Adults have the great responsibility and right in determining who they will share parenting with. While they are children they have a "right" to contact with two parents.
   2. We don't allow children to cast a vote for President (as intelligent, well read, and politically invovled as they may be).  Do we let them 'cast' an even more important vote?
   3. It is simple human nature for an adult going through divorce to place the primary "blame" on the other spouse.  It is also natural for them to see affirmation from their friends (how many of us have had our "ears talked off" by someone describing a bitter divorce). Unfortunately, it is also natural to expect such an adult to attempt to "convince" their children of the same thing -- this is pure poison!
   4. And of course with older teenage children -- how many of us would be tempted to play one parent off the other in an attempt to gain extra freedom or privileges?
      
3. "Custody decisions will be based on the Primary Caregiver"
   
   1. Whatever parent happens to have the ability/desire to stay with a child at home should not have a preference over the one pursuing a career at that time, outside the home.
   2. Both parents have valuable contributions to make to the child.  The parent/child relationship is dynamic and changes as both grow in the relationship, and to the benefit of both.  This is consistent with appreciating the basic right of parents/children to associate.
      
4. "Standards of evidence should be relaxed for Family Custody matters.  There just aren't enough facts some times..."
   
   1. This is probably the greatest reason for the tragedy of the present system.  You have overworked staff, lawyers, and Judges trying to make critical decisions -- and they don't have enough time or facts.  They are tired & overworked, it becomes a "job", and sometimes you make mistakes, get a little callous, start to form biases.  This is why there are rules of evidence. This why the Nation's founders installed the Jury system.  The jury requires the "system" to prove to people "off the street" that it can justify its claims.
   2. The criminal "rules of evidence" are used to prevent abuse of the system.  They recognize that people do lie to get what they want. The motiviation to lie is certainly present in a Divorce, it is very easy to rationalize pure fabrication or dramatization -- as long as you don't really have to prove anything.  When just allegations are rewarded, you get more allegations.
   3. We recognize that sometimes there could be a real problem, but we just don't have the proof "beyond a reasonable doubt" necessary to take action.  We do much more harm by allowing people to play a "hunch" or "suspicion" and destroy a family.

Comment on the Act.