Very few family law attorneys, and perhaps fewer local courts in America treat parenting matters as a civil rights issue. I have had many priatitioners inform me that civil rights or Constitutional issues just don’t come into play with respect to divorce, custody or child support matters. This seems rather strange given that the United States Supreme Court itself has recognized parenting as a fundamental right, Troxel v. Granville, 530 U.S. 57 (2000).
Given the Supreme Court’s disposition, the importance of parenting in general, and the long, deep American tradition of looking upon family as a focal point of our our values and life activities, it should follow that parental rights would be treasured at all levels of society. So why isn’t that the case?
Let’s walk through some possible answers, the problems these present, and some solutions that can help ensure that these rights will be protected at every level of government in a meaningful and productive way.
First, the nature of the relationship between family and the broader society necessarily means that the government and the courts have traditionally been limited in how much protection they can offer to an individual household. This has changed considerably in the last generation, however.
In fact, if anything, rather than the government protecting the family as a unit, in the past generation, there has been more and more intervention from child protective services, local police units, foster parenting agencies, etc. in ways that override one or both parents’ authority within their own home.
Regardless, however, courts often perceive that they are helpless to look behind closed doors and tell what is really happening within a family. They can’t or won’t enforce rights except on matters which occur out in the open – whether these rights are fundamental or not.
Second, there is a similar perception that the enforcement of rights within a family means the protection of women and children, which in turn means protection from a father. That being the case, parenting itself is in no way treated as a civil rights issue, though perhaps women’s rights are being protected on multiple levels in multiple ways.
This results in a bifurcation of the protection of the rights of a woman that is not widely understood. While she maintains a high level of government protection from undesired advances from her husband or boyfriend, she maintains little if any protection from the government itself with respect to her relationship with her children.
Constitutionally, men and women are guaranteed equal protection as to each other, and higher protection as adults than children, with all individual’s protected from intrusion by the government. In an unwritten fashion, however, the law prefers women over men, children over women, and governmental agencies over all. Thus in practice, the government operates nearly in reverse of what the Constitution intended.
Finally then, we approach the crux of the problem. But there is one additional element that needs to be considered – the way local systems of government operate, including their inter-relationship with state and federal levels of government. Local systems lend themselves to corruption via the limited resources that exist for holding them accountable. As people are elected or appointed by their friends within the community, it’s likely there is little opposition at a level that would challenge their credibility or actions. Hence, local officials often are able to ignore significant conflicts of interest that may sway them to handle a matter in a manner that is unbalanced or biased.
But these conflicts exist vertically, through the state and federal government, as well as through the networks of local relationships an official has. This is due to the need for funding to keep these government employees working. That funding typically comes from beyond the local tax base. It is paid for either by the state, or in the case of the collection of child support, about 40% has been paid by the federal government with matching funds. The matching funds were suspended in December 2007, but can be expected to be revived in 2009.
Given the influence presented by these conflicts, it should not be surprising how easily local courts choose to overlook a parent’s Constitutional rights. But is this wrong? Should parenting be treated as a civil rights issue? If so, how?
It’s one thing to note that the Supreme Court’s recognition of parenting as a civil, Constitutional right. It’s another to assert how it should be recognized within the communities in which we live. When it comes to divorce, custody and the rights of parents in relation to their time and the raising of their children, we need to first come to grips with how common it is for children to be raised in single parent households and how regularly father’s are excluded or limited in their role as a parent in these cases.
“The vast majority–84 percent–of custodial parents are mothers, and courts awarded child support to 61 percent of them, compared to 36 percent of custodial fathers, according to 2005 census data. Failure to pay [child support, however,] cuts across gender lines, and less than half of all non-custodial parents met their full obligations.” Child Support Revenues Jump in Obama’s Home State, 08/21/08 By Claire Bushey.
Numerous sources are available to demonstrate that it is the interference by a custodial mother that is most likely to inhibit the time and relationship between a father and his own children, for example: Psychological and Structural Factors Contributing to Disengagement of Noncustodial Fathers After Divorce .
In itself, this raises extraordinary problems for the psychological well-being of the children of divorce. But a significant part of the problem can be resolved by taking away the leverage one parent has to disenfranchise the other from the children’s lives by balancing the power that is left in the hands of both parents regarding the children.
This possibility is regularly set aside in order to protect a mother’s financial support from the father, because courts claim to be ill equipped to resolve differences between parties acting with equal authority, and because it is assumed that the father will ultimately yield to the mother in matters of parenting.
But all three of these assertions bring to light the importance of recognizing and enforcing the protection of a father’s fundamental rights as a parent. Constitutional protections are needed most precisely in cases when cultural stereotypes and assumptions are employed to inhibit an individual’s access to justice – and that is what occurs whenever a father is treated unequally with a mother of the same children.
Until we reach a point where as many families have the father as the custodial parent as the mother, father’s need to be treated with special care and their rights carefully preserved in the courts and administrative offices that govern parenting time and child support.