UPDATED 01/27/2003 COPY AS SUBMITTED TO THE COURT (minor revisions)

 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

______________________________________________________________________________

 

 

MICHAEL A. GALLUZZO,

 

PLAINTIFF,

                                                                        CASE NO. C-3-01-174

vs.                                                                    DISTRICT JUDGE THOMAS M. ROSE

                                                                        MAG.JUDGE MICHAEL R. MERZ

 

CHAMPAIGN COUNTY COURT

OF COMMON PLEAS, ET AL,

 

 DEFENDANTS.

______________________________________________________________________________

 

AMICUS CURIAE BRIEF OF MARRIAGE OUR MISSION (MOM)

AND PRESERVE OUR POSTERITY (POP)

IN SUPPORT OF PLAINTIFF

______________________________________________________________________________

 

                                                                                    MARK A. TUSS

Trial Attorney for  Marriage Our Mission (MOM) and Preserve Our Posterity (POP)

137 North Main Street, Suite 712

Dayton , OH 45402

(937) 222-8500

 

KEVIN J. M. SENICH

Co-Counsel for Marriage Our Mission (MOM) and Preserve Our Posterity (POP)

                                                                                    4438 Pearl Road

                                                                                    Cleveland, Ohio 44109-4225

                                                                                    (216) 661-6468

 

 

Table of Contents

Table of Authorities........................................................................................................................................................... iii

Statement of Interest......................................................................................................................................................... 1

Summary of the Argument............................................................................................................................................... 2

Parental Rights are special “fundamental rights” under the Constitution............................... 4

Best Interests of the Child determination............................................................................................................ 6

Parental Rights must be afforded “strict scrutiny”.................................................................................... 9

The state’s compelling interests............................................................................................................................... 10

A “compelling state interest” while applying “strict scrutiny” requires a vague statute, or a statute which infringes upon fundamental rights to fail.......................................................................................................................................... 13

Ohio’s sections 75(N) and 3109.04 are at odds with a “compelling state interest”...................... 15

THE STATE OF OHIO LACKS A LEGITIMATE GOVERNMENTAL  INTEREST (TO SAY NOTHING OF A COMPELLING ONE) IN

 

DEPRIVING A FIT PARENT OF HIS OR HER RIGHT TO PARENT A CHILD BASED ON THE CHILD'S "BEST INTEREST ………….. 20

 

The only custodial determination for two fit parents, is equal custody.  This survives “strict scrutiny,” does not violate Equal Protection or Due Process, and is in the “best interests of the child”.............................................. 23

The state has the ability to comply with the “least restrictive means” test of strict scrutiny by statutory construction    25

Conclusion................................................................................................................................................................................ 26

Table of Authorities

Cases

Andrews v. Andrews, 188 U.S. 14 (1903).......................................................................................... 11

Baker's Ex'rs v. Kilgore, 145 U.S. 487 (1891)...................................................................................... 3

Bellotti v. Baird, 443 U.S. 622 (1979)................................................................................................... 8

Bernal v. Fainter, 467 U.S. 216 (1984)............................................................................................... 10

Bowers v. Hardwick, 478 U.S. 186 (1986)........................................................................................... 4

Collins v. Harker Heights, 503 U.S. 115, (1992).................................................................................... 4

Craig v. Boren, 429 U.S. 190 (1976).................................................................................................. 12

Grayned v. City of Rockford, 408 U.S. 104 (1972).............................................................................. 14

Griswold v. Connecticut, 381 U.S. 479 (1965)................................................................................... 4, 9

Harris v. McRae, 448 US 297 (1980)................................................................................................. 13

Lassiter v. Department Of Social Services, 452 U.S. 18 (1981)........................................................... 10

Lehr v. Robertson, 463 U.S. 248 (1983)............................................................................................. 12

May v. Anderson, 345 US 528 (1952)............................................................................................. 4, 19

Maynard v. Hill, 125 U.S. 190 (1888)................................................................................... 4, 10, 11, 15

Meyer v. Nebraska, 262 U.S. 390 (1923)...................................................................................... 4, 5, 6

Moore v. City of East Cleveland, 431 U.S. 494 (1977)..................................................................... 4, 14

Mugler v. Kansas, 123 U.S. 623 (1887).............................................................................................. 29

New York City Transit Authority v. Beazer, 440 U.S. 568 (1979)........................................................ 12

Palmore v. Sidoti, 104 S Ct 1879; 466 US 429 (1984)............................................................................ 9

Parham v. J. R., 442 U. S. 584 (1979)............................................................................................ 5, 21

Pierce v. Society of Sisters, 268 U.S. 510 (1925)...................................................................... 4, 5, 6, 19

Prince v. Massachusetts, 321 U. S. 158 (1944)............................................................................ 6, 9, 20

Quilloin v. Walcott, 434 U. S. 246 (1978)........................................................................................ 5, 23

Reed v. Reed, 404 U.S. 71 (1971)..................................................................................................... 12

San Antonio School District v. Rodriguez, 411 U.S. 1 (1973)............................................................... 10

Santosky v. Kramer, 455 U. S. 745 (1982)........................................................................................ 5, 6

Skinner v. Oklahoma, 316 U.S. 535 (1942)...................................................................................... 4, 15

Smith v. Organization of Foster Families, 431 U.S. 816 (1977)............................................................. 24

Stanley v. Illinois, 405 U. S. 645 (1972)....................................................................................... 5, 6, 10

Stanton v. Stanton, 421 US 7 (1975)................................................................................................... 24

Troxel v. Granville, 530 US 57 (2000).................................................................................................. 5

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)................................................................................... 9

Wisconsin v. Yoder, 406 U. S. 205 (1972).............................................................................. 5, 6, 14, 24

Yick Wo v. Hopkins, 118 US 356 (1886)............................................................................................ 24

Zablocki v. Redhail, 434 U.S. 374 (1978)................................................................................... 3, 10, 15

Braatz v. Braatz, 85 Ohio St.3d 40 …………………………………………………………….. 21

 

STATUTES

3109.04.................................................................................................................. 17, 19, 20, 26, 27, 28

 

RULES

Ohio Rule 75(N)..................................................................................................... 15, 17, 18, 26, 27, 28

 

OTHER AUTHORITIES

2 Duke J. Gender Law & Pol. 63 (1995).............................................................................................. 8

3 Bishop on Marriage and Divorce, § 480........................................................................................... 11

32 U.C. Davis L. Rev. 855 (1999)....................................................................................................... 7

39 Law & Contemp. Probs. 226 (1975)............................................................................................... 8

43 Harv. Ed. Rev. 487 (1973)............................................................................................................. 8

49 Okla. L. Rev at 37......................................................................................................................... 6

60 Tulane L. Rev. at 1181 (1986)........................................................................................................ 8

75 Minn. L. Rev. 427 (1990)............................................................................................................... 8

APA, Report to the U.S. Comm. on Child and Family Welfare (1995).................................................. 11

Journal of Family Psychology, Joint Custody Versus Sole-Custody Arrangements (2002)................. 12, 24

Miami Herald, April 11, 2000............................................................................................................. 17

National Center for Health Statistics Vol. 43, No. 9. 1995................................................................... 11

The Writings of Thomas Jefferson - Memorial ed. 1903-04; Ford ed. 1892-99...................................... 13

Statement of Interest

             Marriage Our Mission (hereinafter as “MOM”) and Preserve Our Posterity (hereinafter as “POP”) non-profit organizations formed in response to repeated stories about the shortcomings of our  family courts and their treatment of divorce proceedings, child custody adjudications, and other related matters. 

            POP’s interest rests in supporting children and preventing them from suffering many of the social ills caused by divorce and fatherlessness.  The Mission of POP also addresses itself to society’s general welfare through POP’s efforts to reduce divorce and thereby prevent many of these needless social tragedies.  POP’s position as amicus curiae demonstrates that custody determination standards are harmful to children, harmful to society’s general welfare, and are unconstitutional.

MOM’s  mission focuses on the strengthening of marriage and the prevention of divorce.  MOM’s position as articulated in this Brief demonstrates that divorce rates drop or are lower in states where joint custody determinations are high or favored in practice, if not by statute.  MOM’s position also demonstrates that states have the ability to craft custody statutes fully compliant with equality of parental rights , thereby  advancing the “compelling state interest” of reducing divorce.

            Bill Wood is  President of MOM and has worked to found both MOM and POP for the purpose of seeing families restored and children freed from judicially enforced separation from parents.   Members of the two organizations represent a wide geographic area and can be found in states such as  Ohio, Texas, Oklahoma, North Carolina, Arizona, New Jersey, Michigan, and Louisiana.   In recent years, Bill Wood  has offered Congressional testimony to the US House Ways and Means Committee on family and family law issues numerous times, including the following:

·         US House Testimony on Welfare Reform Reauthorization Proposals, H.R. 4090.  April 11, 2002, 109 citations and references - consequences of welfare practices on the family unit, and exploration of the 1996 welfare reform bills requirements for strengthening families and marriage (Pre-publication version is available here; http://bellsouthpwp.net/w/o/woodb02/marriage and divorce.htm) 

·         US House Testimony on Teen Pregnancy prevention PRWORA, Public Law 104-193 (Hearing 107-48). November 15, 2001, 43 citations and references --   effects of fatherlessness and divorce on teen pregnancy. (GPO page numbers not yet available, online version from the House is available here; http://waysandmeans.house.gov/legacy.asp?file=legacy/humres/107cong/11-15-01/Record/wmwood.htm) 

·         US House Testimony on Child support and Fatherhood proposals (Hearing 107-38).  June 28, 2001, 83 citations and references - Social consequences of failed divorce and child custody policies (GPO page numbers not yet available, online version from the House is available here; http://waysandmeans.house.gov/legacy.asp?file=legacy/humres/107cong/6-28-01/record/chillegalfound.htm) -- Father absence, a byproduct of divorce, illegitimacy, and the erosion of the traditional family, is responsible for; filling our prisons, causing psychological problems, suicide, psychosis, gang activity, rape, physical and sexual child abuse, violence against women, general violence, alcohol and drug abuse, poverty, lower academic achievement, school drop-outs, relationship instability, gender identity confusion, runaways, homelessness, cigarette smoking, and any number of corrosive social disorders. 

·         US House Testimony on The "Hyde-Woolsey" child support bill, HR 1488 (Hearing 106-107, pages 94-103).  March 16, 2000, 75 Citations. – Concerning problems with nearly every state's child support guidelines.   

·         Current working paper on "Marriage, No-Fault divorce, and Family Law in America" - over 7 months of legal and historical research has uncovered some very surprising problems for America's "Divorce Industry" (online version can be seen here http://bellsouthpwp.net/w/o/woodb01/famlaw.htm)  

Summary of the Argument [1]

            “Parental rights have a pedigree unmatched in constitutional law.  As one of the only pre-constitutional rights recognized by the US Supreme Court under the Due Process Clause of the Fourteenth Amendment, parental rights have been deemed one of the most sacred liberties in our nation…”

            “Parental rights are… viewed as rights correlative of duties borne out of the reciprocal relationships of intact families…  [P]arental rights are relational rights originating in the family, not in the individual parent.” (emphasis added) 

When adjudications using the “best interests of the child standard” (where both parents assert custody rights and neither is found to be unfit), any unequal decision confers special privilege upon the individual parent to the degree that fundamental constitutional rights are seized or taken from the other.  Essentially, one parent’s “fundamental right” is enlarged at the cost of the other parent’s fundamental right being seized to advance that enlargement.  The “best interests of the child” standard is inherently flawed and is not an appropriate measure for making custody determinations between two fit parents asserting fundamental rights as parents through custody proceedings.  The “best interests of the child” standard violates due process by not allowing a reasonable set of circumstances to defend against.  Exercising due process, while considering a “fundamental liberty interest” such as parental rights, requires strict scrutiny with a clear and convincing evidence standard.  Any constitutional infringement upon a fundamental liberty interest requires the state to demonstrate a “compelling interest,” apply “strict scrutiny” (for fundamental rights) upon review, and avoid statutory constructions, which are “void for vagueness.” [2] 

For purposes of this Brief, the Amicus adopts the view of “joint custody” as expressed in the Journal of Family Psychology, “Child Adjustment in Joint Custody Versus Sole-Custody Arrangements: A Meta-Analytic Review”, March 2002, page 93.

The term “joint custody” refer(s) to  … shared physical custody, with children spending equal (or substantially equal) amounts of time with both parents… (J)oint legal custody implies shared decision making by the parents …. 

States have the ability to draft legislation in such a way that it affords equality of rights, while allowing judicial discretion to adjust parenting schedules to accommodate specific needs. 

            A substantial amount of social studies data indicates that sole custody arrangements are far more harmful to children, even in conflicted cases, than joint custody.  This must be a factor in determination of the “best interests of the children” otherwise the law fails for a result contrary to its stated purpose in suggesting that it promotes the “best interests of the child.” 

Data indicates that in states where joint custody determinations are high, divorce rates are low or drop[3].  As repeatedly articulated by the US Supreme Court, marriage is certainly a cause worthy of the “state’s interest” by reducing divorce rates.  See Baker's Ex'rs v. Kilgore, 145 U.S. 487 at 491 (1891) citing from Bishop on Marriage, Divorce and Separation, § 5 (In Marriage, "public interests overshadow private -- one which public policy holds specially in the hands of the law for the public good…”) (emphasis added);  See Zablocki v. Redhail, 434 U.S. 374, 398 (1978) citing from Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).  ("Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.”); Maynard v. Hill, 125 U.S. 190, 211, 212 (1888) (“[Marriage is the most important social relation]… the first step from barbarism to incipient civilization, the purest tie of social life and the true basis of human progress.")

Parental Rights are special “fundamental rights” under the Constitution

 Ohio’s code related to custody determinations raises questions of the perimeters of parental rights; the appropriate method of determining those perimeters is the history and traditions analysis employed in US Supreme Court cases addressing substantive due process rights.  See e.g. Washington v. Glucksberg, 521 U.S. 702, 719 (1997); Bowers v. Hardwick, 478 U.S. 186 (1986); Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (The nation’s history, legal traditions, and practices provide the “crucial guideposts for responsible decisionmaking”).  The nations traditions and history test requires the courts to draw definite lines around parental rights and to remove arbitrary or vague perimeters.  See Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality) (“Appropriate limits on substantive due process come not from drawing arbitrary lines but rather from careful ‘respect for the teachings of history [and] solid recognition of the basic values that underlie our society…’ Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is firmly rooted in this Nation’s history and tradition.” (citations and footnotes omitted)).

In the 1920’s, the Court asserted that parent’s rights to raise and educate their children was a “fundamental” type of “liberty” protected by the Due Process Clause.  See generally, Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).  This liberty includes the “right to the care, custody, management and companionship of [his or her] minor children” which is an interest "far more precious than… property rights” May v. Anderson, 345 US 528, 533 (1952). (where a mother had her rights to custody jeopardized by a competing custody decree improperly obtained in another state).  This was further clarified by Justice White in Griswold v. Connecticut, 381 U.S. 479, 502 (1965, concurring opinion) (“[T]his Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right to marry, establish a home and bring up children, and the liberty… to direct the upbringing and education of children," (internal quotes omitted) and that these are among "the basic civil rights of man." (citations omitted).  He then added that “[t]hese decisions affirm that there is a realm of family life which the state cannot enter without substantial justification.” (citing from Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). 

The fundamental nature of parental rights was revisited in Troxel v. Granville, 530 U.S. 57 (2000) using such strong affirmations as  “[t]he fundamental liberty interests recognized liberty interest at issue… is perhaps the oldest of the by this Court…  [I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id. at 65, 66.   In Troxel, Justice Souter then expands on this right contained in the Fourteenth Amendment before noting that the constitutionality of parental rights is a “settled principle”;

We have long recognized that a parent's interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment. See, e.g., Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925); Stanley v. Illinois, 405 U. S. 645, 651 (1972); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972); Quilloin v. Walcott, 434 U. S. 246, 255 (1978); Parham v. J. R., 442 U. S. 584, 602 (1979); Santosky v. Kramer, 455 U. S. 745, 753 (1982); Washington v. Glucksberg, 521 U. S. 702, 720 (1997). As we first acknowledged in Meyer, the right of parents to "bring up children," 262 U. S., at 399, and "to control the education of their own" is protected by the Constitution, id., at 401. See also Glucksberg, supra, at 761. Id. at 77.

Even the dissenting opinions of  Troxel  recognize with unanimity the principle that parental rights are constitutionally protected fundamental rights.  Justice Scalia noted they rise to the level of being “among the unalienable Rights with which the Declaration of Independence proclaims all Men ... are endowed by their Creator…  [T]hat right is also among the othe[r] [rights] retained by the people which the Ninth Amendment says the Constitution's enumeration of rights shall not be construed to deny or disparage." (internal quotes removed) Id. at 91.  Justice Kennedy acknowledged  that “visitation cases may arise where [considering appropriate protection by the state] the best interests of the child standard would give insufficient protection to the parent's constitutional right to raise the child without undue intervention by the state…” Id. at 94. (emphasis added).  Justice Kennedy  then clarifies that the court is in unanimous agreement about parental rights;

[T]here is a beginning point that commands general, perhaps unanimous, agreement in our separate opinions: As our case law has developed, the [parent] has a constitutional right to determine, without undue interference by the state, how best to raise, nurture, and educate the child.  The parental right stems from the liberty protected by the Due Process Clause of the Fourteenth Amendment. See, e.g., Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Prince v. Massachusetts, 321 U. S. 158, 166 (1944); Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); Wisconsin v. Yoder, 406 U. S. 205, 232-233 (1972); Santosky v. Kramer, 455 U. S. 745, 753-754 (1982). Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion. …[T]hey long have been interpreted to have found in Fourteenth Amendment concepts of liberty an independent right of the parent in the "custody, care and nurture of the child," free from state intervention. Prince, supra, at 166. Id. at 95. 

Best Interests of the Child determination

             “Common law traditions, reflected in Blackstone’s Commentaries reflect the view that reciprocal duties and privileges between parents and children are an inherent part of family life… 49 Okla. L. Rev at 37 (quoting 1 William Blackstone, Commentaries 410)… noting, “for Blackstone, as for other common law authorities, a comprehensive set of mutual obligations and benefits running between parents and children lie within the realm of family life.” [4]  Based on this and a number of other important decisions, it is inappropriate to allow the indeterminate, imprecise, and inherently problematic “best interests of the child standard” to trump parental rights and responsibilities. 

In his dissent in Troxel, Justice Kennedy elaborated that, if upon remand or reconsideration of Troxel (or another state court case), if problems with the decision remained regarding parental rights, consideration of those problems and other issues at the US Supreme Court might be warranted. Justice Kennedy writes:

“These [issues] include ... the protection the Constitution gives parents against state-ordered visitation but also the extent to which federal rules for facial challenges to statutes control in state courts.  These matters, however, should await some further case…” 

“It must be recognized, of course, that a domestic relations proceeding in and of itself can constitute state intervention that is so disruptive of the parent-child relationship that the constitutional right of a [parent] to make certain basic determinations for the child's welfare becomes implicated. The best interests of the child standard has at times been criticized as indeterminate, leading to unpredictable results. See, e.g., American Law Institute, Principles of the Law of Family Dissolution 2, and n. 2 (Tentative Draft No. 3, Mar. 20, 1998)… Our system must confront more often the reality that litigation can itself be so disruptive that constitutional protection may be required; and I do not discount the possibility that in some instances the best interests of the child standard may provide insufficient protection to the parent-child relationship.” Troxel 530 U.S. at 101 (emphasis added). 

By using the characterization “free-ranging best-interests-of-the-child standard”, Justice Souter keenly and succinctly summed up in a single phrase this “standard’s” problematic nature.  (Troxel)   The American Bar Association in its “Law Day 2002” noted that the best interests of the child “standard” is no standard at all.[5]  While certainly a noble “aspiration” (as characterized by the ABA), an “aspiration” by its nature is not a standard, nor is it worthy to guide the allocation of constitutionally protected liberty interests.

            Scholarship reflects Justice Souter’s concern.  The law review article, Inventing Family Law, 32 U.C. Davis L. Rev. 855, 856 (1999) states that "Much has been written about how the dominant custody standard, 'best-interests-of-the-child,' effectively leaves each trial judge free to make the important value choices that necessarily underlie a custody determination."  The review goes on to discuss;

Robert Mnookin's classic critique of the best interests standard… has become conventional wisdom.  The law today is not much different than when he wrote.  The typical statute directs that custody decisions be made according to the child's best interests…  [T]his standard tells courts to do what is best for a child, as if what is best could be determined and was within their power to achieve.  In fact, what is best for children depends upon values and norms upon which reasonable people differ...  Opinions don't differ if the choice between parents is a choice between love and cruelty, cleanliness and filth, respect and exploitation.  But those stark choices don't often come up.  How important is it to instill religious belief in a child?  Should the child have a strong cultural affinity, and to which culture?  What is the relative importance of individuality, creativity, civility, reliability, sensitivity, intellectual achievement, loyalty, and "fitting in"?... 

[A]ppellate courts could construe the typical statutory best interest standard so as to make the essential value choices, in ways that bind the trial court.  But generally, they do not.  Apart from some hot button issues like race or gender… appellate courts reviewing custody decisions most often confirm the trial court's broad discretion. This is hardly surprising.  When courts make an express value choice in a published opinion, they often find themselves under heavy fire.   

It's better and safer to bury the value choices [of the best interests of the child] in the trial court's discretion, where they remain sufficiently obscured to defy challenge.  The pervasive tradition of discretion in family law makes this easy to do.  (footnotes omitted)  Id. at 863-866, (emphasis added). 

Where two fit parents assert their fundamental parental rights in the context of a custody decision, the “best interests standard” is not helpful because "it provides little real guidance to the judge, and his decision must necessarily reflect personal and societal values and mores. . . ." Bellotti v. Baird, 443 U.S. 622, 655-56 (1979) (Stevens, J. concurring).

The “best interests standard” has often been academically and judicially criticized for being indeterminate; it offers virtually no guidance but the judges’ own ethical, moral, or personal values in weighing the differing needs of individual children; they contain no “oracle” for decision-making as children’s needs change over time.  Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs. 226, 257 (Summer 1975).  Best interests operates as "an empty vessel into which adult perceptions and prejudices are poured."  Hillary Rodham, Children Under the Law, 43 Harv. Ed. Rev. 487, 513 (1973).  See also Annette R. Appell and Bruce A. Boyer, Parental Rights v. Best Interests, 2 Duke J. Gender Law & Pol. 63 (1995) (analysis of cultural, class, religious, ethnic, and racial biases that pervade totally discretionary use of "best interests"); Mary Ann Glendon, Fixed Rules and Discretion in Contemporary Family Law and Succession Law, 60 Tulane L. Rev. at 1181 (1986) (The "best interests" standard is "a prime example of the futility of attempting to achieve perfect, individualized justice by reposing discretion in a judge. Its vagueness provides maximum incentive to those who are inclined to wrangle over custody, and it asks the judge to do what is almost impossible: evaluate the child-caring capacities of a mother and a father at a time when family relations are apt to be most distorted by the stress of separation and the divorce process itself."); Gary Crippen, Stumbling Beyond the Best Interests of the Child, 75 Minn. L. Rev. 427, 499 (1990).

The “best interests of the child” standard is not an adequate replacement for a more precise legislative construction defining more carefully the confines and parameters of a parent’s fundamental rights in raising, educating, and maintaining a relationship with their child(ren).  The indeterminate nature of this “standard” (pseudo-named a “standard” because there is no precise “standard” to go to for guidance) which has been used to replace a more proper legislative statutory construction violates due process provisions of the Constitution on the grounds that it evades meaningful judicial review.  How is one to review a “standard” where there is nothing against which to measure?

Parental Rights must be afforded “strict scrutiny”

 The Fourteenth Amendment prohibits the state from depriving any person of “life, liberty, or property without due process of law.”  The Court has long recognized that the Due Process Clause “guarantees more than fair process.”  Washington v. Glucksberg, 521 U.S. 702, 719 (1997).  It also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”  Id., at 720.

The “[r]eality of private biases and possible injury they might inflict [are] impermissible considerations under the Equal Protection Clause of the 14^th Amendment.”  Palmore v. Sidoti, 104 S Ct 1879; 466 US 429 (1984)   “In determining which rights are fundamental, Judges are not left at large to decide cases in light of their personal and private notions[;]… it cannot be said that a Judge's responsibility to determine whether a right is basic and fundamental in this sense vests him with unrestricted personal discretion.”  Griswold v. Connecticut, 381 U.S. 479, 493 n7 (1965) (A case dealing with marriage relationship privacy).  The same court noted there is a "realm of family life which the state cannot enter without substantial justification”. (quoting Prince v. Massachusetts, 321 U.S. 158, 166).  Absent a powerful countervailing interest, the state has no legal reason to treat either parent differently.  Weinberger v. Wiesenfeld, 420 U.S. 636, 652 (1975) (nemine contradicente – no dissenting opinions) (“[A] father, no less than a mother, has a constitutionally protected right to the ‘companionship, care, custody, and management’ of ‘the children he has sired and raised, [which] undeniably warrants deference and, absent a powerful countervailing interest, protection’”, citing from Stanley v. Illinois, 405 U.S. 645, 651 (1972)). [6]

“[S]trict judicial scrutiny… has [been] found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights or that involve suspect classifications.  If, as previous decisions have indicated, strict scrutiny means that the State's system is not entitled to the usual presumption of validity, that the State rather than the complainants must carry a "heavy burden of justification," that the State must demonstrate that its [system affecting fundamental liberties] has been structured with "precision," and is "tailored" narrowly to serve legitimate objectives and that it has selected the "least drastic means" for effectuating its objectives...” (emphasis added) (footnotes omitted) (San Antonio School District v. Rodriguez, 411 U.S. 1, 16-17 (1973).  

 San Antonio School District confirmed that where a “fundamental liberty” interest was at issue, the issue demanded review by the courts using strict scrutiny.  (“[T]he State's system impermissibly interferes with the exercise of a "fundamental" right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review.  San Antonio School District id. at 29).  See also Bernal v. Fainter, 467 U.S. 216, 216-217 (1984). (“In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available.”).

  “When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.”  Zablocki v. Radhail, 434 U.S. 374, 388 (1978).  In  Troxel  regarding parental rights Justice Thomas confirmed that “the appropriate standard of review...” is to “apply strict scrutiny to infringements of fundamental rights.”

The state’s compelling interests

             “[T]he State has an urgent interest in the welfare of the child.”   Lassiter v. Department Of Social Services, 452 U.S. 18, 27 (1981).  Marriage and family are the most basic building blocks of a stable and cohesive society providing another of the state’s interests.  See Maynard v. Hill, 125 U.S. 190, 211 (1888) ("[Marriage] is an institution… which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.")  Common law teaches us the state’s obligations in the breakdown of a marriage do not exist in a vacuum, the state owes a duty to society at large to preserve marriage.  3 Bishop on Marriage and Divorce, § 480 notes;

Marriage being a public institution of universal concern, and each individual marriage or its dissolution affecting the rights, not only of the husband and wife, but of all other persons, the court sitting in a divorce case should regard the public as a party thereto.  3 Bishop on Marriage and Divorce, Section 480.[7] 

As stated in  Andrews v. Andrews, 188 U.S. 14, 30-31 (1903) (citing from Maynard v. Hill, 125 U.S. 190, 205, 210 (1888)), “Marriage, as creating the most important relation in life, [has] more to do with the morals and civilization of the people than any other institution”.

States with high levels of joint physical child custody in divorce show declining rates of divorce (National Center for Health Statistics Vol. 43, No. 9. 1995) while policies that support or promote sole custody appear to contribute to high divorce rates. [8]  This creates a connection to one of the state’s “compelling interests”, the interest in preserving marriages.  An APA report reviewing major research on joint custody and its impacts on children noted;

"The research reviewed supports the conclusion that joint custody is associated with certain favorable outcomes for children including father involvement, best interest of the child for adjustment outcomes, child support, reduced relitigation costs, and sometimes reduced parental conflict."

"The need for improved policy to reduce the present adversarial approach that has resulted in primarily sole maternal custody, limited father involvement and maladjustment of both children and parents is critical. Increased mediation, joint custody, and parent education are supported for this policy."  (American Psychological Association, Report to the U.S. Comm. on Child and Family Welfare, June 14, 1995)

“One clear message from the accumulated divorce research is that children profit by continued [frequent] exposure to both parents” [9] and that this involvement with both parents is absolutely crucial to their health and well-being. [10]  There is no stronger component of the “best interests of the child standard” than the actual social studies research indicating that joint custody helps children adjust to life and society in a productive way while reducing negative social consequences associated with divorce and fatherlessness.  As a result, joint custody shows a rational connection to the “best interests of the child” AND to society’s interests in preserving marriage.  [herein incorporated by reference as “Journal of Family Psychology, Child Adjustment in Joint Custody Versus Sole-Custody Arrangements:  A Meta-Analytic Review” March 2002].

            A presumption requiring an outcome of equality of parental rights preserves the fundamental nature of those rights while conferring on neither parent an enlargement of those rights or a diminishment.  The presumption of an award of equal custody also provides the greatest degree of  exposure for the child to both parents, an experience crucial for their well-being.

            The state also has a compelling interest in reducing or eliminating discrimination under the Equal Protection Clause.  In Lehr v. Robertson, 463 U.S. 248, 265-266 (1983), the Supreme Court addressed a parental rights challenge to adoption proceedings and noted:

The concept of equal justice under law requires the State to govern impartially.  New York City Transit Authority v. Beazer, 440 U.S. 568, 587 (1979).  The sovereign may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.  Reed v. Reed, 404 U.S. 71, 76 (1971).  Specifically, it may not subject men and women to disparate treatment when there is no substantial relation between the disparity and an important state purpose. Ibid.;  Craig v. Boren, 429 U.S. 190, 197 -199 (1976) (emphasis added.) 

The Court then goes on to explain that parents who both accept responsibility for their children have equal rights to make decisions for those children.  The equality of that right to decision making extends even to the point of granting either parent individual veto rights over the other’s decision to place the child for adoption.

            Authority no less prominent than Thomas Jefferson commented extensively on Due Process and the Equal Application of the Law and their foundational role in the concept of American justice:

·         "[Our] principles [are] founded on the immovable basis of equal right and reason." --Thomas Jefferson to James Sullivan, 1797. ME [11] 9:379

·         "An equal application of law to every condition of man is fundamental." --Thomas Jefferson to George Hay, 1807. ME 11:341

·         "The most sacred of the duties of a government [is] to do equal and impartial justice to all its citizens." --Thomas Jefferson: Note in Destutt de Tracy, "Political Economy," 1816. ME 14:465

·         "To unequal privileges among members of the same society the spirit of our nation is, with one accord, adverse." --Thomas Jefferson to Hugh White, 1801. ME 10:258

·         "[The] best principles [of our republic] secure to all its citizens a perfect equality of rights." --Thomas Jefferson: Reply to the Citizens of Wilmington, 1809. ME 16:336

·         "Nothing... is unchangeable but the inherent and unalienable rights of man." --Thomas Jefferson to John Cartwright, 1824. ME 16:48  

A “compelling state interest” while applying “strict scrutiny” requires a vague statute, or a statute which infringes upon fundamental rights to fail.[12]

 "It is well settled that, quite apart from the guarantee of equal protection, if a law "impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional."  Harris v. McRae, 448 US 297, 312 (1980).

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.  Vague laws offend several important values.  First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.  Vague laws may trap the innocent by not providing fair warning.  Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.  A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972) [13] 

In Wisconsin v. Yoder the Court took up a challenge to Wisconsin's compulsory education laws and found “that even when claiming a purpose of benefiting the child, the state must demonstrate convincing evidence that its intended policy will actually bring about its professed goal.”  Wisconsin v. Yoder  406 U.S. 205, 221 & 232-33 (1972). 

Where parental rights have been infringed by even more exacting statutes, they have been held unconstitutional.  For example, the Troxel decision often cited in this brief is an example of a statute that was struck down not for vagueness, but for trespassing upon the “fundamental parental rights” of the biological parent.  In Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) the court found that even zoning ordinances could not be used to infringe upon a grandmother’s ability to live with and raise her grandchildren.

As we evaluate the “compelling state interest” in child custody matters, its nexus is found between the “best interests of the child” standard and strict scrutiny for parental rights.  Infringement upon parental rights requires the state to show the infringement serves a “compelling state interest” with no constitutionally satisfactory alternative to meet that interest.  Failure to use such non-infringing means, or other Constitutional alternative in making custody determinations causes the statute or order to fail the required scrutiny test and therefore violates parental Due Process rights under the 14^th Amendment.  

[W]hile there is still reason to believe that positive, nurturing parent-child relationships exist, the [state's] parens patriae interest favors preservation, not severance, of natural familial bonds.  The State registers no gain towards its declared goals when it separates children from the custody of fit parents (emphasis added).  Santosky v. Kramer, 455 US 745, 766-67 (1982) (emphasis added). 

While the Santosky decision is about the termination of parental rights, Troxel  referenced this legal authority to demonstrate the Fourteenth Amendment Due Process requirement with parental rights (in a non-termination action).  Routinely, Ohio courts use an evidentiary standard for deciding custody which was found to violate the Fourteenth Amendment.  “The ‘fair preponderance of the evidence’ standard … violates the Due Process Clause of the Fourteenth Amendment…  A preponderance standard does not fairly allocate the risk of an erroneous factfinding between the State and the natural parents.” Santosky 455 US at 746.

Ohio Rule of civil procedure 75(N) and revise code  section  3109.04 are at odds with a “compelling state interest”

             Ohio Rule of Civil Procedure 75(N)(1) and (2) contains a dangerous and insidious social policy component which promotes the breakdown of marriages and the breakup of families that otherwise might remain intact or be salvageable.  That Rule states in pertinent part:

(1)  “When requested… without oral hearing and for good cause shown… [the court] may make a temporary order regarding the… allocation of parental rights and responsibilities…

(2) [Upon presenting a legal counter action or defense]…  A request for oral hearing shall not… change the allocation of parental rights and responsibilities until the order is modified by journal entry after oral hearing. 

The Rule promotes the kind of a “mad rush” to the courthouse to immediately terminate a marriage that breaks down the family foundational structure of our society.   The importance of that family structure cannot be understated.  See Zablocki v. Redhail, 434 U.S. 374, 398 (1978) citing from Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).  ("Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.”); Maynard v. Hill, 125 U.S. 190, 211, 212 (1888) (“[Marriage is the most important social relation]… the first step from barbarism to incipient civilization, the purest tie of social life and the true basis of human progress.")).  Rule 75 provides any disaffected spouse with a readily available procedural first strike capability for which there is no practical defense.   Few marriages survive such preemptive assaults by process.  

Any competent legal counsel, who did not at least suggest that his client immediately file for divorce to gain the “upper hand” would not be acting as a “zealous advocate”.  Notwithstanding the condition of the marriage (whether it may be reconcilable), a lawyer should move immediately to the divorce action to protect a client’s interests and gain the advantage.  If the lawyer does not move immediately toward the termination of the marriage and filing for custody, the question arises as to whether the lawyer may be personally liable for malpractice for not zealously advancing the client’s interests.  Lawyers and litigants cannot be blamed for exercising procedural rights zealously.  Legislatures, however, can be held accountable by striking down such statutes where, as here, process is at odds with a compelling state interest.

The first to file in this “mad rush” to the court house is the first to gain an advantage over the other parent’s fundamental liberty interests in the care, custody, companionship, education, raising, and nurture of any children of the relationship.  It is difficult  to characterize this as anything but a “scorched earth policy” ensuring that the fires of litigation will burn hot while promoting the likelihood that false allegations may be used by the filing party, or, in the defense against the action [14].  These routine tactics were best seen and described in the Elian Gonzales case in Florida where it was noted;

We have said and the boy has said -- he has told psychiatrists – that he's deathly afraid of his father because his father beat him up,'' Garcia-Pedrosa said Sunday on CBS' Face the Nation. 

''This is all a last-ditch, desperate attempt to concoct claims that cannot be proven,'' University of Miami law Professor Bernard Perlmutter said.  ''It's unconscionable that these type of blustery, malicious claims are going on. But it doesn't surprise me, because they have essentially lost in the federal court. This is the stock in trade of family lawyers to malign and cast aspersions in an ad hominem way on the other side. They are dragging Elian into the morass.' -- Miami Herald, April 11, 2000. (emphasis added) 

While the incentives for such incendiary practices are clear under Rule 75(N), yet another procedural alternative encourages the “mad rush”.  ORC 3109.04(A)(1) instructs the courts that under at least one set of procedural circumstances (NOT facts) a sole custody determination must be made: 

If neither parent files… if at least one parent files… the court, in a manner consistent with the best interest of the children, shall allocate the parental rights and responsibilities for the care of the children primarily to one of the parents… (emphasis added)  

The operation of ORC 3109.04 creates an impermissible due process quagmire where procedural requirements trample a fundamental liberty interest.  While ORC 3109.04(A)(1) contains a directive for sole custody by using the term “shall,” joint custody options under the next section are discretionary.  Once all of the procedural hurdles are met (pursuant to 3109.04(A)(2)), the judge is given discretion to appoint joint custody by the language noting “the court may allocate the parental rights and responsibilities for the care of the children to both parents and issue a shared parenting order”.  Pursuant to the statute as written, sole custody is directed (“shall”) while joint custody is optional (“may”).  Under this section (3109.04(A)(2)), when public assistance is involved, there is still a requirement to make a “de-facto” determination of sole custody by “designat[ing] which one of the parents' residences is to serve as the child's home.”

            Under Rule 75(N), one parent is given sole custody of the children just for being the first to file the action.  Under 3109.04(B)(1), however, a different standard requiring the “best interests of the child” is to be applied to “any proceeding for modification of a prior order of the court…”  This “temporary” status determined by the first rush to the court house generally becomes the de facto custody determination as there is a substantial amount of reluctance to “disturb” any previous custody arrangement absent a showing that it is inherently problematic.  The judiciary routinely adopts the philosophy of not disturbing judgments (even temporary ones) thereby ensuring the first one to the courthouse who is willing to break their marriage vows is the one to gain custody and support in the action [15].  By the explicit language of Rule 75(N) and ORC 3109.04, not only are parental rights at stake, but the state awards financial incentives of child support and spousal support to the first one to file..  No reasonable person can believe that these policies and incentives promote a “compelling state interest.”

            For its part, 3109.04(B)(2)(b) does not fairly allocate the burden of responsibility between the parents and the children.  Children are certainly not chattel, but they are also not directly responsible for their own upbringing, their education, their own nurture, and of the many adult situations that are necessary to guide them through life.  They are not responsible for fundamental decision making regarding their own welfare.  Their parents are.  See Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).  Parental liberty includes the “right to the care, custody, management and companionship of [his or her] minor children” which is an interest "far more precious than… property rights” May v. Anderson, 345 US 528, 533 (1952).  See also its related progeny noted throughout this brief and upheld in Troxel.  Under this statute we are proposing the most difficult and the most painful of situations and circumstances upon the very children the statute purports to recognize “the best interests” of.  Allowing children to decide places them in the awkward position of wielding a “Solomon – like” sword to sever their parents by making a determination for one or the other.  Are we to assume that this is not psychologically harmful to children?  Substantial social studies data and literature  beyond the scope of this brief  indicate that the idea of this level of decision-making power by the children may lead to a form of abuse where the child is used as a pawn by one parent against the other in a syndrome legally recognized as the “Parental Alienation Syndrome” [16].

            Further, ORC 3109.04(C) creates a serious question of privacy invasion.  While this question is not before the court, this invasion of privacy is used as the basis for implicating a fundamental liberty interest.  The court is granted wide latitude and discretion to peer into personal matters such as “character, family relations, past conduct, earning ability, and financial worth of each parent,” and “may order the parents and their minor children to submit to medical, psychological, and psychiatric examinations.”  No requirement exists of legal finding or justification that these directives bear a relationship to the matters of child custody which are before the court.

3109.04(D)(1)(a)(i) places the court in a position of completely seizing both parents protected fundamental liberty interests in determining the upbringing of their children by granting to the court wide discretion to overturn an agreement that both parents might reach independently.  Barring some threshold finding of actual or imminent harm to the child, which this section is silent upon, it is an unreasonable exercise of hubris and bias for the courts to determine that the parents are so inadequate in making decisions for their own offspring that the court would overrule an agreement reached by the parties.  See Prince v. Massachussets, 321 U.S. 158, 166 (1944) (“[I]t is cardinal… that the custody, care, and nurture of the child reside first in the parents whose primary function and freedom include preparation for an obligation the state can neither supply nor hinder. (citation omitted) And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.”)

            3109.04(D)(2) treads upon the same ground that has been repudiated by the US Supreme Court in  Troxel.  Inasmuch as this Ohio statute gives the courts wide latitude to entertain custody on behalf of third parties under the “free-ranging best interests of the child standard”.

            A comprehensive reading of all of the subsections and divisions of ORC 3109.04 inarguably reveals that this statute is so constructed as to allow the broadest discretion and the broadest decision making authority against shared parenting and joint custody.  Promoting joint custody or shared parenting would be more respectful of the “fundamental liberty interests” encompassed in parental rights.  A review of the social studies data, and the current US Supreme Court decisions on parental rights can not justify a “compelling state interest” in the codified lack of respect for the importance of shared parenting or joint custody.  Ohio’s code section related to custody determinations under ORC 3109.04 should be struck down as unconstitutional.        

THE STATE OF OHIO LACKS A LEGITIMATE GOVERNMENTAL INTEREST (TO SAY NOTHING OF A COMPELLING ONE) IN DEPRIVING A FIT PARENT OF HIS OR HER RIGHT TO PARENT A CHILD BASED ON THE CHILD’ S “BEST INTEREST”

            Underlying our constitutionally protected parental liberty interests is a presumption that the "natural bonds of affection lead parents to act in the best interests of their children".  Parham v. J.R. 442 U.S. 584, 602 (1979); see Troxel 530 U.S. at  87.  The Ohio statute presumes that these natural bonds of affection are broken upon divorce.  They are not.

            Except perhaps in cases of domestic violence or abuse, the disaffection or incompatibility of a petitioning or complaining party in divorce rarely expresses itself in terms of conflict over the exercise of parental rights.  The conflict that gives rise to divorce finds expression in the marital relation, not the parent-child relationship.  The best interest of the child, therefore, is a consideration that arises only after a divorce is initiated.  

            Whereas conflicts in parental decision-making may not be a prominent cause of divorce, bitter custody disputes are certainly a prominent consequence of divorce.  The cynic might argue that economic issues are the root of custody disputes.  It is no secret that the parent who "gets custody" most often also gets the marital home and the management of the child's money in his or her absolute discretion.  Yet, money alone cannot explain the bitterness and protracted nature of custody disputes.  Many custody disputes are litigated at a cost far beyond fiscal reasonability.

            The corollary to the Parham presumption is that the "natural bonds of affection" that parents have for their children not only "lead" parents to act in their children's best interest, those bonds compel parents to so act.  In the case of unequal custody, both parents face the certainty that one of the two of them will be permanently estopped by judicial fiat from so acting, minimally to the degree the custody award expresses that inequality.  In the case of sole custody, it is an absolute proscription - a parental death sentence. 

            In terms of the exercise of parental rights in Ohio, an essential difference exists between "custody" and mere "visitation".

                        ..."custody" resides in the party of parties who have the right to ultimate legal and physical control of a child, while "visitation" resides in a noncustodial party and encompasses that party's right to visit a child.

                        Although a party exercising visitation rights might gain temporary physical control over a child for that purpose, such control does not constitute "child custody" because the legal authority to make fundamental decisions about the child's welfare remains with the custodial party.  Braatz v. Braatz 85 Ohio St.3d 40, 44 (1999).

            A noncustodial parent in Ohio not only has no right to make any fundamental decisions regarding his or her child's welfare, he or she is court ordered, under penalty of sanction, never to make any such decisions. 

            Social science will no longer tolerate the notion that divorce is good for a child.  Clearly, married parents with a single family home is in the best interests of the child.  Anything else or less is merely in the next best interests of the child.  That next best interest is joint custody and joint fundamental decision making.  As between two similarly situated parents, no judge can measure the relative strength of the bonds of affection that one or the other parent feels for his or her child.  Every child, down to the last molecule of their existence, is comprised one hundred per cent of both parents.  The real issue in custody disputes, therefore, lies at the heart of the otherwise constitutionally protected parental liberty interests.  In the absence of a presumption of equal custody, the issue disputed between parents is over which parent will ultimately determine who the child will become.  For many Ohio parents, the child will become a stranger, and needlessly so. 

             It is inarguable that ORC 3109.04 reposes unqualified and absolute authority in a judge to make any custodial award he or she deems appropriate "in the child's best interest".  Even where both parents present a singular, agreed upon plan, the judge may reject it.  Even where a judge orders a Shared Parenting Plan, the content of that Plan may be thinly disguised sole custody where the fundamental decisions are reserved for one party.  It is not even so much a question of whether a judge exercises the discretion wisely or poorly in a given case, but rather that judges enjoy absolute discretion in every case that makes ORC 3109.04 constitutionally infirm.  See Chicago v. Morales 527 U.S. 41, 71 (1999).

            In light of the Parham presumption, and the well documented effects of divorce on children, it is shameful to juxtapose for purposes of comparison Ohio's property division statute, ORC 3105.171 and its correlative parental rights allocation statute, ORC 3109.04.  ORC 3105.171 states in pertinent part: 

            (C)(1)Except as provided in this division or division (E) of this section, the division of marital property shall be equal.  If an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in the manner the court determines equitable.  In making a division of marital property, the court shall consider all relevant factors, including those set forth in division (F) of this section.           

(2) Each spouse shall be considered to have contributed equally to the production and acquisition of marital property.         

            Ohio law apparently can presume an equal contribution by marital partners to the acquisition of marital property, but cannot presume a correspondingly equal contribution of those same partners to the parenting of their child.  Whereas upon divorce an equal division of property is mandated unless such division would be inequitable, the reverse is true as regards the allocation of parental rights and responsibilities.  The Ohio Legislature can articulate nine factors under "division (F)" that mandatorily must be considered if the division of property is to be equitable; that is, other than equal.  Yet, it can articulate no factors mandatorily to be considered "in the child's best interest" for anything other than an equal custody allocation.  The only conclusion to be reached is that formation of wealth as between spouses is accorded presumptive equality by the Ohio legislature; the formation of a child as between parents is not.        

            The Parham presumption survives divorce, and despite the infirmities of the Ohio statute, it even survives custody litigation.  No legitimate, much less compelling, state interest is served by judicial second-guessing of a child's parents' joint fundamental decisionmaking by judicially elevating one parent’s status at the expense of the other and their child.  A fit parent is entitled to parent, and a child is entitled to two parents.  The Parham presumption must necessarily find expression in the Ohio statute if that statute is to serve a compelling governmental interest, the interest of both parents in providing the best life for his and her child that circumstances will allow.   

The only custodial determination for two fit parents, is equal custody.  This survives “strict scrutiny,” does not violate Equal Protection or Due Process, and is in the “best interests of the child” 

“A (once) married father [or mother] who is separated or divorced from [their spouse] and is no longer living with his [or her] child could not constitutionally be treated differently from a currently married father [or mother] living with his [or her] child.”  Quilloin v. Walcott, 434 US 246, 255-256 (1978).  "[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in `promot[ing] a way of life' through the instruction of children . . . as well as from the fact of blood relationship." Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844 (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231 -233 (1972).  This emotional attachment and daily association along with the instruction of children are important for both men and women and neither can be given preference where they are both fit and both assert their right to custody.

Where there are two fit parents, both asserting their constitutionally protected fundamental parental rights, no determination but equality can be made without relying on old outmoded stereotypes, personal prejudices or biases.  This type of determination, using old stereotypes and personal prejudices was repudiated in Stanton v. Stanton, 421 US 7, 10 (1975).  (The "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials" can no longer justify a [practice] that discriminates on the basis of gender.  No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas [17].)

            Based on a recently published meta-analytical research piece published by the American Psychological Association in March of 2002 (See the attached Meta-Analytic review from the American Psychological Association (2002) examining studies related to joint custody) joint custody is certainly the preferred “best interests of the children standard”;

Children in joint physical or legal custody were better adjusted than children in sole-custody settings, but no different from those in intact families.  More positive adjustment of joint-custody children held for separate comparisons of general adjustment, family relationships, self-esteem, emotional and behavioral adjustment, and divorce specific adjustment.  Joint-custody parents reported less current and past conflict than did sole-custody parents, but this did not explain the better adjustment of joint-custody children… 

Even Laws and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" are discriminatory and violate the equal protection clause of the Fourteenth Amendment.  Yick Wo v. Hopkins, 118 US 356 (1886).  Certainly any "[l]aws abridging the natural right of the citizen should be restrained by rigorous constructions within their narrowest limits." [18]

The state has the ability to comply with the “least restrictive means” test of strict scrutiny by statutory construction which;

1.        Serves a compelling state interest

2.        protects parental rights

3.        upholds Due Process

4.        retains the discretion necessary to reach a reasonable parenting schedule 

            Anyone would concede that “compelling state interests” include reducing divorce, reducing litigation, and improving child well-being.  This brief has provided a summary of some of the law, social studies data, and other materials to support this premise and is in no way remotely exhaustive of these supports.  If the state is able to draw a statutory construction, which preserves the fundamental liberty interests of both parents, provides children with meaningful contact with parents, has the flexibility to allow for various schedules, and abides by due process requirements, then it is constitutionally compliant.  Such a statutory construction is not only possible, but rather straightforward in its construction.

            Minimally, a statute should be constructed that embraces the presumption of joint custody to the same degree as ORC 3105.171 embraces the presumption of equal property division.  Whereas that presumption may be rebuttable in any given case, it should be the starting point from which every allocation of parental rights begins.  The burden should be on the party seeking the “equitable” custody award, the award other than equal.  Statutorily enumerated factors determining any variation or deviation from the presumed equal custody should be mandatory considerations.  Findings of fact should be the basis of any award or allocation in the child’s next best interest.  Indeed, if the right to parent a child is a liberty interest “more precious than property rights”, no parent should be deprived of their child, and no child of their parent, without a finding by clear and convincing evidence.   Minimally, we owe our children at least as much deference as we show our cars and houses.  We really owe them much more.

            To effectuate joint custody without having to construct elaborate tests, sample parenting plans (delineating times and schedules), or other mechanisms, the legislature could enact statutory language allowing for a complete reversal of the parenting schedule from year to year. 

Example 1:  If a parent were given a parenting plan that allowed for; a) a visitation schedule of three weekend visits each month, of three days each, during the school year, b) and the primary parent during the school year be given every other weekend visits of two (2) days each during the summer, with c) holidays split throughout the year, this would amount to a fairly close share of parenting time between the parties.  To make it completely equal, the schedule could be reversed in the next year.

Example 2:  Use the same schedule above, only do the reversals in the midpoint of the school year, and in the midpoint of the summer, while still alternating holidays, and reversing the holiday alterations each year. 

These are just two examples that would pass the “least restrictive means” test of strict scrutiny, while allowing completely equal parental rights, reduce litigation, and give BOTH parents the ability to participate fully in the child’s education, upbringing, nurture, direction, guidance, and instruction.  Regardless of the schedule chosen, the reversals, or an honest attempt at preserving some form of near equality between parenting time meets all of the criteria for the preservation of these important rights.  A day or two difference for some logistical reason would still satisfy the “least restrictive means test”.  This strategy of “reversing schedules” and of balancing custody year to year or semi-annually still allows a tremendous amount of discretionary flexibility in determining the most appropriate parenting schedule.

Conclusion

             It is absolute and unequivocal that parental rights are a species of constitutional rights that are special and “fundamental” in nature.  Ohio’s laws have been drawn in such a way that they do not afford a reasonable amount of protection for one parent or the other.  The law is both written, and practiced to enlarge the “rights” of one party at the expense of taking them from the other party.  And in the case of Ohio Rule of Civil Procedure 75(N), this may often be done on a temporary basis without even having the opportunity to be heard, to confront witnesses, or to review the evidence.  It is without a doubt that a “fundamental liberty interest” is being deprived, through procedural means and before a hearing to confront witnesses and answer to the claims affecting that interest.

            Ohio’s courts rely on a discretionary relic called the “best interests of the child” that is inappropriate for such an important fundamental liberty interest.  While it makes for a great sound bite, this “aspiration” grants unbridled and often arbitrary discretion to the judge with little or no accountability for the most helpless of society--, the children.  There are also two different standards applied under Civil Rule 75(N) and code section ORC 3109.04.  Under rule 75(N), the first person to the courthouse immediately gains control of the children of the relationship and likely child support and possibly spousal support creating a strong incentive to “file first”.  Under rule 75(N) there is no opposing testimony, and no ability to present counterclaims or defense.  Later, a different and arbitrary standard is applied to the party that did NOT file, and different procedures are required to regain the previously lost “fundamental liberty interest” of their parental rights.  Where the filing party had no burden of proof beyond an undisputed affidavit, the opposing party under ORC 3109.04 must now confront witnesses, present evidence, demonstrate counterclaims, and “battle it out” just to REGAIN the lost interest.  Further, there is no definite standard, measure, criteria, or claims to assert as to whether or not the second parent can comply with the undefined “best interests of the child” standard to reclaim the previously seized “fundamental liberty interests.”  Civil Rule 75(N) uses the term “parental rights” and thereby explicitly acknowledges that it is impeding a RIGHT, something more than just an “interest” or “privilege” or other lower threshold stakes.

            The state has a compelling interest in preserving marriage as the backbone of society and in protecting children from bleak and maladjusted futures resulting from the lack of a parent.  Children are suffering as a result of divorce and custody actions.  Children are suffering from having one parent essentially reduced to a weekend visitor in their lives.  Social studies data demonstrates that there are terrible social costs to society as a result of both the breakdown of marriage, as well as the removal of one parent from a child’s life.  And these tragedies are completely unnecessary as there is evidence to show that there are alternatives that are far superior in advancing society’s interests as well as less detrimental to children.

            One of the considerable benefits of drafting constitutionally compliant joint custody laws is the reduction in divorce rates (and the reciprocal strengthening of marriage) that joint custody causes in practice.  The importance to the state of preserving and promoting marriage is of such a nature that it is even worthy of judicial notice.  Drawing statutes conforming to equality of the fundamental liberty interests at stake, as well as meeting the remaining due process, strict scrutiny, and equal application tests is not only possible, but relatively simple.  ORC 3105.171 embraces the presumption of equal property division using specifically enumerated considerations for deviation.  This indicates that the legislature certainly is capable of drafting such legislation.  The examples included in this brief illustrate that the state does have more constitutionally compliant alternatives. 

            Civil Rule 75(N) and ORC 3109.04 should be struck down as unconstitutional for being at odds with the purposes it purports to represent--, the “best interests of the child.”  The state has constitutionally compliant alternatives to advance any remaining state interests by less constitutionally restrictive means.  It is difficult to understand the state’s contention that it must make a “tiebreaker” in each ruling.  This “best interests” component coupled with the state’s “tiebreaker” assertion has several difficult ramifications, 1) it asserts that the judge must exercise personal beliefs in any determination to declare a “winner” and a “loser” [19] , 2) this “winner” and “loser” mentality promotes litigation rather than reducing it which is at odds with the state’s interest (this has been demonstrated in this brief through peer-reviewed social studies data), 3) the state now furthers an interest contrary to parental rights in deciding a “winner” and a “loser” by using the “tiebreaker” ideology, yet this is specifically directed at the adults and has little or no rational bearing on the “best interests of the child;”  this “winner” and “loser” mentality sends a strong contrary signal to the children about the “court’s” view (and thereby the state) of one of their parents, 4) it does not comport with the constitution and is pure speculation, 5) neither parent has 100% of their fundamental parental rights in tact during the marriage as they must live together and reconcile any differences in the raising, education, nurture, and other items with the child (during the marriage their COMBINED parental right is 100% of the child’s upbringing), and 6) finally, “pitting two individuals with equal fundamental rights against each other” (Atty. Gen. brief pg 11) does nothing to promote the interests of the children by heightening conflict and battles in an already difficult situation.  There is no peer-reviewed social studies data that this Amicus is aware of that supports this position and the reputable data indicates a contrary position to the state’s assertion for the necessity of a “tiebreaker.”  Simple reason indicates that mandatory presumption (with a parental fitness rebuttal) of joint custody would reduce litigation, there are no more “winners” and “losers” who need to worry about “tiebreakers.”  Nor does our constitution indicate that the state has an interest in “tiebreakers” which elevate one citizen’s rights above another, that is a reprehensible concept under any equality doctrine, whether it be legal, social, or otherwise.  As noted in Orwell’s Animal Farm, apparently some parent’s rights are “more equal” than others.

In conclusion, the court’s authority to strike down these statutes as unconstitutional is a part of a “solemn duty” to bring statutes into constitutional compliance, as the court noted in Mugler v. Kansas, 123 U.S. 623, 661 (1887);

“It belongs to [the legislature]... to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety...  There are, of necessity, limits beyond which legislation cannot rightfully go.  While every possible presumption is to be indulged in favor of the validity of a statute, (Sinking Fund Cases, 99 U.S. 718 ,) the courts must obey the constitution rather than the law-making department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. 'To what purpose,' it was said in Marbury v. Madison, 1 Cranch, 137, 167, 'are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.' The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty, indeed, are under a solemn duty, to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.” 

            For the foregoing reasons, and in support of Plaintiff, Michael A. Galluzzo, Marriage Our Mission (MOM) and Preserve Our Posterity (POP), in their capacity as Amici Curiae herein, respectfully request that Ohio Revised Code Section 3109.04 be declared unconstitutional.

 

                                                                                    Respectfully submitted,

 

 

                                                                                    _______________________________

                                                                                    KEVIN J. M. SENICH (0015171)

Co-Counsel for Marriage Our Mission (MOM)

and Preserve Our Posterity (POP)

                                                                                    4438 Pearl Road

                                                                                    Cleveland, Ohio 44109-4225

                                                                                    (216) 661-6468

 

 

 

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