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The Inevitable Failure of Current Move-Away Bills and Custody Legislation
Dr. Richard Weiss
President, Alabama Chapter of the Center for Children's Justice
and Member, National CCJ Board
The trouble with well intended but feckless fledgling move away legislation, such as Alabama HB157, is that
they represent inappropriate politically correct "appeasement." Their crime is that they naively condone
a fundamentally illegitimate act by applying paper-thin band-aids instead of effecting real change. HB157-like
move away bills beg the question. To borrow from recent history, spending precious time, money and resources on
championing HB157 is akin to the U.S. relinquishing its security interests to the U.N. so the latter can negotiate
with Saddam Hussein to allow more inspectors to search for concealed weapons of mass destruction, instead of simply
removing the tyrant and eliminating the ongoing facade and the real threat.
The real issue, as damaging as it is, is that one parent has absolutely no inherent right nor authority to
abduct with the other parent's children period, and thereby significantly alter if not destroy the parent-child
relationship and bond, assuming the nonrelocating parent objects to this move away and is fit.
Without the most compelling cause (e.g.., proven criminal unfitness) and under the most stringent scrutiny,
being a "noncustodial" parent (an arbitrary and contrived class distinction created--illicitly--by the
state) has absolutely no relevance to loss or deprivation of parental rights (i.e., those same inalienable and
fundamental family liberty interests enjoyed by married parents in intact households) . Married and divorced parents
cannot be treated unequally in respect to their sovereign parental rights and intrinsic personal relationship with
their children. This principle is well established and securely protected both in the United States Constitution
and also in ruling U.S. Supreme Case law. Yet our state family courts systemically violate these fundamental laws
and codes.
The real need, legislatively speaking, is to restore equal rights to both parents, after divorce; these are the
same inalienable rights to their children that parents have while married. Divorce is a legal annulment of a marital
contract between two adults. (This divorce choice legitimately should be consensual, but in today's feminist atmosphere
of no-fault divorce, over two-thirds of divorces are initiated by women against objecting husbands, and in 94%
of these cases women are entitled to the couple's children and most assets, along with monthly child support income).
Children, notably, do not divorce their parents and have no compelling state need nor requirement to be separated
from either parent).
The modern day father, as you yourself likely know, no longer represents the Ozzie-Harriet retrograde image of
bread winner and hands off parent. He is involved as much, or more so in many cases, with his children than the
mother who is often a working parent herself. In today's two-parent working household which is most of them, the
father just as likely changes diapers, cooks for and feeds the children, drives them to day care and their sundry
activities and events, takes them to the doctors and medicates them, cleans the house and washed dishes and laundry,
helps look after and discipline and teach his children, and inculcates mores and religious and practical life,
values. I have personally done for years and continue to do these same things my 3 children, including two teen
daughters from my first marriage and a 2 year old son from my present one. Most fathers I personally know responsibly
and gladly do the same.
Astonishingly, after 12 years of fighting for more parenting time, I am still relegated to seeing my two daughters
(from the first marriage that ended in divorce in 1991) every other weekend (4-6 days a month) yet I pay their
mother for this "privilege" of enforced loss of significant parenting time at least 40% of my take home
and all medical insurance premiums and medical and dental costs for my daughters. Nonetheless like many divorced
fathers I have a second family with a very young child to support.
Despite 10 years and unmentionable devastating legal expenses I have incurred during this time to fight in court
simply to be an equal parent (or to even just partially remain somehow in the lives of my children given the minimal
parenting allowed me as a father) I have been intentionally thwarted denied by the so-called "family court
system every single time, including 2 failed costly state supreme court appeals. But my child support obligation
predictably has over the years been steadily increased, according to state policy. Clearly, according to the family
court, a father's basic worth to his children is in his role of "cash cow" and earning potential, not
his invaluable role as an indispensable parent needed by his children emotionally and psychologically to help raise
them, teach them, and protect them.
However, if there is a breakdown, perceived breakdown, or even NOTHING wrong at all with the marriage (some women
have confessed they just
are "bored" and no longer enjoy the company of their spouse but want the freedom to travel, enjoy life
with new paramours, etc) under no-fault cop out provisions (originally inspired and passed years ago by the feminist
bloc) the woman walks away, takes the children and her other entitlements, and PRESTO: No father. The family court
then routinely orders, under threat of incarceration, the father immediately out of the lives of his children (who
are as emotionally and psychologically attached to him as they are to their mother) and orders him to pay her "child
support" which is totally unaccountable as to how she uses it (maybe partly on the children or perhaps on
booze, drugs, cigarettes, her boyfriend, travelling, new clothes and shoes for herself-----you get the picture).
The devastating effect of this abusive legal policy redistributing children of divorce and parentectomizing fathers
is well documented in the scientific literature, and the number and types of individual and social pathologies
are significant. Yet, family courts stubbornly persist in emotionally and mentally abusing young children, under
the color of "law" using their nebulous---and unconstitutional--- totally undefinable "best interests"
of the child standard to arbitrarily render their own personal bias---rulings typically impervious to modification
no matter what the changes in circumstances later. Rulings that can, in different venues, capriciously result in
entirely different outcomes for the children and family.
As far as HB157 and similar anti-moveaway legislation, the bill should be made very simple: There legitimately
must be a rebuttable presumption established that minor children are normally forbidden to be moved away by a custodial
parent from their established place of residence and from their established relationship with the nonrelocating
parent and extended family members, especially if the nonrelocating parent objects. (This assumes fitness of each
parent, and the lack of any extraordinary circumstances e.g., medical reasons where the child must be relocated
to a facility out-of-state, where this is the only resource to treat a serious or life-threatening disorder. These
are examples of "rebuttable presumptions").
But in the vast majority of cases involving fit parents, the children should never be allowed by the state
to be relocated without mutual parental agreement and consent. That is, it is the sole function and legitimate
authority of the family court to protect the rights of the parent and the child when threatened, to uphold the
Constitution and higher federal case law; it is not the role of the court to intervene without very compelling
cause and consider abrogating inalienable rights or destroying child-parent relationships.
In cases where one parent contrives reasons (e.g., false allegations of abuse that can not be clearly or
incontrovertibly proved or other abuses the judicial process, there should be strong sanctions again that parent,
including payment of all fees and consideration of loss in custody if the parent is a custodial parent at the time).
The presumption I offer is the only constitutionally firm policy. What is happening now in family courts---both
in custody hearings and move away trials, is a gross violation of due process and other constitutional freedoms
and rights and abuse of process.
It is time we have the courage and perspicacity to demand what is right, just, and protective for our children.
Two parents---with preservation of each parent's inalienable rights --- is that simple and ethical solution.
Finally, I would urge that the arbitrary judicial mantra of "best interests of the child" be expunged
from move away and all custody legislation, and replaced with "rebuttable presumption ensuring equal rights."
Although "best interests of children" (BIC) is ear candy for everyone, how is it defined in each case,
particularly by strangers who, excepting consideration of documented criminal evidence, do not understand all the
normal family dynamics and relationships during the brief course of a hearing, where perjury and gross distortion
or manufacturing of "facts" abound? Allowing BIC consideration up front in any legislation giving authority
to judges altogether defeats the purpose and intent of any sincere bill to provide equal rights and shared parenting.
Typically, judges use their "discretion" to enforce their bigotry and bias (recall the 94% figure in
custody awards I quoted above. In their fixation on the sanctity and centrality of motherhood they extend the unconstitutional
"tender years" bias throughout the children's dependent lives. Judges ignore the emotional and mental
health and future security of divorced children in its frenzy to keep children just with mommy. As a society, we
are all tragically aware of the aftermath of this policy in terms of social disease and crime well documented in
single mother households lacking a father). I have literally hundreds and more examples of cases archived where
the court's so-called "best interest' of the child" remedy has led to unnecessary death of the child,
mental disease, school dropouts, runaways, total loss of a parent through suicide or geographical isolation, crime,
rape, drug abuse and many other tragedies directly related to deporting the father from his family.
The specter of a state court facilitating move aways of children in divorced families---even as "challenged"
in putative restrictive move away legislation--- in divorced families is abominable. Most of these bills, as in
HB157, will require a 45-day period of notification followed by the opportunity of the nonrelocating parent to
petition the court for a determination of authority to allow or forbid the move away based on the merits of the
case and specifically, the BIC or as in HB157 even less stringently on the "good faith" intentions of
the move away mom (i.e., she merely needs to attest in court she is not moving the children thousands of miles
away to impede or undermine the relationship between the kids and their soon to be exiled dad)
These legislative efforts, albeit looking somewhere toward the right direction, are clearly misguided and
ineffectual wrong. According to the U.S. Constitution----adopted by all state courts---- and also by ruling prior
U.S. Supreme Court precedent, unless there is unequivocal proof of criminal unfitness in either parent or extreme
or extraordinary circumstances where the child's safety is clearly directly threatened, the family court has absolutely
no authority or reason to intervene and adjudicate a move away case eliminating the care and companionship of a
minor child with one parent. In essence, these are unconstitutional, attempted abductions of innocent children
perpetrated "under the color of law" which lack compelling cause and can directly severely and permanently
impede and destroy the relationship of a parent with his or her children. The excluded parent de facto loses his
inalienable parental rights.
Most, if not almost all, these issues like move away that desperately require legislation to "fix" a
horrendous problem in domestic law would be obviated by allowing EQUAL PARENTING with guarantee of equal parenting
rights, as our Constitution requires. The eventual benefit to society could not even be comprehended at this point,
but it would be substantial. Many of the problems in divorced families today, including move aways, parental alienation,
custody disputes, family violence and crime, and financial impoverishment and subsidization of welfare families,
are CREATED by big government enforcing unworkable and failed programs. This must end. We need to aggressively
restore what is constitutionally legitimate.
By disallowing move aways and also requiring equal parenting rights in all routine cases of divorce involving two
fit---albeit disagreeable---parents children will finally enjoy and benefit from the security of having BOTH parents
substantially in their lives (geographically and time-wise). Further, our young children of divorce would best
be served by rescinding the present irresponsible "no fault' divorce laws. There should be more emphasis placed
on conflict resolution, mediation, perhaps religious counsel, and a waiting period between applying for a marriage
license and its issuance (I believe the Catholic church has a similar restriction addressing length of engagement
and premarital counseling).
Undoubtedly, I can anticipate objections to these proposals I have made by the political feminist camp, who arguably
are more interested in their own political agenda, control, and gender freedom and autonomy than about child welfare.
The emphasis on marriage per se should be on children, not the freedom or needs of the parent to walk away from
the marriage or their right to undermine or sever relationships. A marriage contract, like parental rights involving
children of the marriage, should be strictly binding excepting unusual or compelling cause needed to abrogate it.
However, in all the cases I cited, the inclusion of "rebuttable' under the guiding presumption should allow
the court to legitimately intervene and address modification or dissolution for those special or anomalous cases
that would clearly jeopardize a child and/or spouse.
Dr. Richard C. Weiss
President, Alabama Chapter of the Center for Children's Justice and Member, National CCJ Board
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