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I. AN ACT:
to recognize:
that the current patchwork of Family Law in the
United States has become a tragedy in which both parents and children are victims,
that one of the most basic Civil Rights of any person
is to associate with their children,
that the vast, vast majority of mothers and fathers
are good people and good parents trying to do the best they can,
that most practioners in the present
"system" mean well but are operating in a difficult environment where there is
great administrative power,
that the "best interests of the child" are
served by recognition of these rights and regular and frequent contact with both parents.
to enforce some of our most basic Civil Rights:
the Constitutional right of both parents to associate
equally with their children and participate in their lives
free of government interference ,
the Constitutional right of family members to be
secure in their homes,
the Constitutional right of parents to change
employment or careers throughout their lives,
by applying the traditional
protection of a jury and proof beyond a reasonable doubt when any of the preceding
freedoms are challenged
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.
to encourage:
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.
the States to institute programs in parenting and
marriage and to encourage attendance in pre-marriage classes before a Marriage License
is granted.
to provide:
that the provisions of this Act become the
"default" agreement between individuals before they form a family,
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,
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,
to confer jurisdiction upon the district courts of
the United States to provide injunctive relief,
to authorize the attorney General to institute suits
to protect such rights
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".
II. DEFINITIONS:
-
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).
-
The term "family member" means either a
child or parent. The term applies to parents who are unmarried, married, or
divorced.
-
The term "home" means a living area which
is either owned or rented by the individual.
-
The term "Unfit to Parent" means to be
found guilty of being a demonstrated serious threat to the safety of their child
with malintent. This is a criminal 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.
-
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.
-
The term "speedy trial" means that if a
parent is charged with misconduct which results 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.
-
The term "Equal
Parenting" means that by default parents alternate physical custody of their
children on a weekly basis. They are both 'legal' custodians of the
children and both need to be kept informed with 'tie breaker' authority
alternating on an annual basis.
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. In response to recent
government activism over the past 40 years, we must now clearly recognize our right to
associate with our children, to be secure in our homes. 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 official 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
What the Act 'is not' - It
is important to clarify what the Act is not intended to be.
- It is not meant to force parents to
live in the same home, or to require the action of a jury before parents can
separate and live apart.
- It is not meant to install a jury
system in Family Court rooms in those jurisdictions where 'Family' Courts
are separate from the Criminal system.
- It is not meant to require a jury
proceeding or to require Equal Parenting if both parents agree to an
alternate arrangement.
What the Act 'is' - A brief summary
of provisions follow and then some examples of implementation.
- It does establish basic protections
and default arrangements when a parent finds their relationship with their
child threatened by other family members or a government agency.
- It does require speedy trial if a
temporary order interferes with the parents relationship with their child.
- It does require a Criminal indictment
and conviction (with the protection of a unanimous jury verdict) of a parent
of being a demonstrated threat to the safety of their children before a
'Family' or other Court can impose any terms other than Equal Parenting
(Unfit to Parent).
- It guarantees equal physical and
legal custody over children between parents in cases where agreement cannot
be reached on other arrangements.
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. (In the Draft these are to be
seen as examples of what would really happen, your input is valuable in making
changes/updates as part of the process. Wording is very crucial).
- There is a family living in a home with children. One parent
decides to initiate a Divorce Proceeding against the other. Regarding Physical Custody:
- 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.
- If both parents are seeking divorce one may be required by the Court
to leave the home.
- 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 arrangement will have the child spend
alternating weeks with each parent.
- The preceding paragraph applies even after a Divorce is granted.
- 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.
- Regarding Legal Custody. Unless a parent is found "Unfit to
Parent", there shall be JOINT legal custody of children between the parents. Both
parents shall be aware of what is going on in their children's lives. If there is
disagreement regarding a decision which must be made:
- One parent will have the "tie breaking" vote for the year.
That authority will alternate each year.
- If the other parent wishes to pursue the decision in Court, mediation
will be required first.
- There is a family living in a home with children. One parent
makes an accusation of domestic violence (between parents) against the other:
- 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.
- Any law which provides for "automatic" arrest, without
requiring independent corroborating evidence for the responding police officer,
violates this Act.
- In and of itself, a charge or conviction of "Domestic
Violence" against another parent does not make someone "Unfit to
Parent".
- 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:
- Any law which provides for "automatic" arrest, without
requiring independent corroborating evidence for the responding police officer,
violates this Act.
- 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.
- There is a separated family, with the children spending equal time
with both parents. Regarding financial support of the children:
- The amount of support paid may be based on both real assets and
income as reported in Federal Tax Returns. The use of
"imputed" income is not allowed unless the person is found to be guilty
(by a Jury) of attempting to escape support.
- 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.
- A finding of "Unfit to Parent" is a severe finding and
should be infrequent. This is the standard to be used by the Jury
before contact between parent/child is limited in any way [we
welcome your comments on the DRAFT. This is the crucial item and must
be defined well]:
- 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.
- We would hope States could offer parents optional "skills"
classes in different areas of child-rearing.
- A life threatening injury requiring
medical attention delivered with mal intent is included.
- How/should you quantify
"mental abuse"?
- It is NOT based on predicted
conduct, but actual severe conduct. It also includes the elements
of intent to harm. Consider the following:
- Parents who smoke - we know
second hand smoke is a clear health threat. Imagine parents
who both "smoke like chimnies". They are a threat to
their children, but their is no intent to harm.
- Religious convictions - there
are communities of Amish/Mennonites (among others) who do not
believe in certain types of medical treatment. Withholding
treatment would not be considered an intent to harm.
V. Unsupported Implementations &
Rationale
The following implementation ideas were not
supported, brief rationale is given:
- "Having Juries would slow the system down to
much!" - This has not been proven at all.
- 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 a Judge feels a parent should be separated from children
-- there is little hope.
- With a clear standard of "Unfit to Parent"
-- most of the petty accusations that really do bog the system down would be dropped.
- "Let the child decide who they want to live with
is -- it is their right"
- 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.
- We don't allow children to cast a vote for President
(as intelligent, well read, and politically involved as they may be). Do we let them
'cast' an even more important vote?
- 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 seek 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.
- 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?
- "Custody decisions will be based on the Primary
Caregiver"
- 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.
- 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 Civil Right of parents/children to associate.
- "Standards of evidence should be relaxed for
Family Custody matters. There just aren't enough facts some times..."
- This is probably the greatest reason for the tragedy
of the present system. The overworked staff, lawyers, and Judges try to make
critical decisions -- and they don't have enough time or facts -- and sometimes not
even the desire. 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.
- The criminal "rules of evidence" are used
to prevent abuse of the system. They recognize that people lie to get what
they want. The motivation 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.
- 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.
- "We need more scientific studies on
this..." -- It is not uncommon to see various statistics
presented as justification for Family Law Reform, e.g. 63% of children raised in single
parent homes grow up with this problem, OR, you get comparisons of the effectiveness of
men versus women as parents!!!!
- This is about your Civil Rights to have a
relationship with your children. We are not talking about a technical issue of road
construction or fresh water management.
- Imagine "modern sociological studies" done
before the Civil War on the issue of whether the slaves should be freed? "... We
really are concerned about their physical well being and that of their children. To
release this great mass of people all at once would be fool hardy. Some of them can't
handle freedom, their children would starve, what are they going to do for work? Maybe a
phased approach would be best, we'll release some of the more educated ones (after they
pass some tests) and take it slow with the rest." (We might still have slavery
now!)
- Please remember our criminal law system, you are
presumed innocent until proven guilty. Even if 80% of teenagers picked up by police are
eventually found guilty -- would you just want to remove the "formality" of a
trial and just find everyone guilty?
- Consider the recognition and protection of our most
basic right to associate with our children. The slave had a right to immediate freedom,
and so do we.
Comment on the Act.
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