The Legal Precedents Against Non-Custodial Parents

This article is intended to rebuke some of the most common arguments against child support. There are many people selling motions and arguments claiming you can use them to prove child support is illegal. These are all scams, and will only hurt your case in the future. While it is our belief that the current child support system is fundamentally unconstitutional and violates basic human rights of fathers, the current precedent in the United States has failed to preserve the civil liberties of non-custodial parents. We do not agree with them, but we feel you should understand what you are up against if making an argument on a federal level.

Misrepresentation of Interest

A point of contention regarding the impact of family law on constitutional rights is frequently cited under “deprivation of rights under color of law.” This is actually a federal law, a penalty for which is as harsh as murder in the first degree, including death. Essentially it is applicable when a law is passed that seeks to deprive and individual or group of basic civil rights as defined in the constitution. It’s punishment is purposefully stern, the ability to pass laws that interfere with basic constitutional rights essentially nullify what our country was founded upon. This necessitates a punishment that would ensure it would never happen.

So let us take the example where a child support order is issued to a non-custodial parent. In many cases the state passes additional laws that cause the non-custodial parent’s income to be incorrectly inflated (i.e. failure to take into account taxes or expenses) or the custodial parent’s expenses are exaggerated. Now we have a situation where an individual is unable to pay the support amount, and then faces a contempt charge for which he or she may be incarcerated for. Normally when charged with a crime one would be entitled to due process, a court appointed attorney, and the general protections one receives in criminal court. But here in civil court you do not get said protections. So how do they get around it?

Let’s take a look at another situation. The rights of parents are clearly defined in that the state shall not take away the parent’s rights to be in their child’s life, shall not interfere with their ability to parent. This is a fairly fundamental right, after all, we wouldn’t want to be in a dystopian 1984-esque society where the government can just come in and take your children to raise as they wish? Otherwise you would be re-living the Hitler youth, or the orphanages shortly after Stalin’s time full of future servants of the state.

While both of these things make perfect sense (as they should) the courts have found ways around it. In Troxel v. Granville (2000) Washington State introduced the notion that a state defined “best interest of the child” supersedes parental rights that were held by prior precedent. Unfortunately the Supreme Court agreed and allowed the ruling to stand, thus ensuring the state can tilt the tables in its favor. Once we go down that slippery slope, all the state has to do is then act as though the interests of the state are actually the best interests of the child. So what is in the best interests of the child? Is it two parents in conflict while living with one parent 80% of the time? Or is it living under a shared parenting arrangement in a calm and safe environment? It does not matter what the science says, because the Supreme Court says the state can define it. The state needs not justify as to what the best interest is, only state what the best interest is. This tragic manipulation of the law has remained in place without effective legal rebuttal and unfortunately at this point the only way to change it is through legislation.

There is no mistake about it, the state’s sole interest is in generating SSA Title IV-D reimbursement from the federal government. So is it a surprise that we find the majority of cases having a winner and a loser? No, unfortunately there are no surprises here. Family court is consistently predictable, and in the most unfortunate ways. And while the legislators are there to govern and represent the populace, they are not going to wean themselves off of the government subsidies without a fight.

Wrongful Application of Law

Now going back to our first argument, the way to get around that one is a bit more complex. First there is the issue of the amount. As the states have added more and more complexity to these laws, they have made it more and more arbitrary as to what counts as income. So for those of you out in Arkansas that travel to California for work and suddenly have to pay triple to eat (reimbursed by your employer) you’ll suddenly find that attributed as income. Do you have a work vehicle or get reimbursed to use your car? That can count as income. Do your children go to school, but it is just easier for the custodial parent to get help during the day? Sure! No problem, that is allowed. Would you ever do it if finances were tight while married? Absolutely not. But the state has discretion to inflate these figures, and gets paid directly as a result. The most important question that remains here is that of incarceration. The key to allowing this to happen while depriving you of rights is to say that you willingly caused an inability to pay. So if you were a construction worker and injured your back, they can say you willingly stopped working and used the pain as a cover for reducing your income. While there are protections that you can try to invoke (i.e. disability) the road to getting that is incredibly arduous, and the expense of securing a favorable judgement using an attorney will be out of reach for many. So once you are found to be doing anything voluntary, they are able to cite you for contempt of court and take your rights.

You might ask yourself, but these judge’s wouldn’t do that, right? Well, let’s talk about another concept.

Judicial Immunity

In the United States, judges are essentially free to do ANYTHING from the bench. In Mireles v. Waco (1991) a judge in Texas issued a warrant for the arrest of an attorney who failed to show up, and instructed the officers to “rough him up a little.” After taking the appeal all the way to the Supreme Court, not surprisingly, the cabal of peer judges refused to find any liability and ensured that judges can do anything while they are on the bench and acting in the capacity of a judge. So while they cannot just pull out a firearm and execute you on the spot, should they issue an illegal order, it is of no consequence to the judge as issuing orders is a part of their function. Very rarely is judicial misconduct punished when it happens in the court room, the only recent exemption to that was the “Kids for Cash” racket in Pennsylvania where the judges actually sold children to private juvenile detention facilities. Anyone who has known those in power long enough will know that they seek a powerful office with the least accountability. Many politicians come to mind for most, but in actuality it is the judges we have to fear.

When you combine these misrepresentations of a “child’s best interest” with the overlapping state interest, add in a dash of conflict of interest, and then polish it off lack of accountability; you end up with what we call family court in America. The last vestige of slavery in the United States.

The most important question here is how do we change it. Judicial immunity is here to stay. The only individuals powerful enough to right this wrong is the Supreme Court, and no group of judges will limit the power of their peers and branch (and themselves.) The next approach would be to limit the fictitious accounting that is commonly used in family courts to secure more Title IV-D funding at the expense of the non-custodial parent. The approach to this is to ensure shared parenting is the norm, and reduce child support orders to realistic amounts, mostly doing away with them in cases of shared custody. The ideal way is to remove Title IV-D funding entirely so that the state laws are no longer perverted by vested interest in perpetuating the miscarriage of justice.

The final step is to remove the teeth from the punishments. This part will again be incredibly difficult as the courts have dug in on the notion that the rights of the child outweighs the rights of the non-custodial parent. But this notion must not be allowed to continue. At no point should one’s liberty be exchanged for the sake of another without that person causing harm or acting in a criminal way. Though a child is helpless in the situation, the courts have failed to maintain their best interest by acting in a manner to restrict the parent’s ability to pay, such as in license suspensions and incarceration. Once an entity has proven itself to be counterproductive in the very mission it uses as justification for its actions, it should cease to hold the capacity to carry out what is in the true best interests of the child. In simple terms, if your doctor has a track record of giving you poison for a higher commission, it is time to revoke his medical license.

All of these changes will come from the legislative end, and must begin with a grass roots movement that exerts pressure on the politicians. The family court industry has run amok and taken the good will and public perception along with it. All those afflicted by the malady of institutionalized indebtedness must make their cases public so that the judicial misconduct can be seen and voted out of their position. It is not in our children’s interest to continue to persecute the parents, fueled by a winner take all mentality that serves to only enrich the politicians.

What the Law Should Look Like

The current laws are set up to disincentivise shared parenting and create a situation where there is a custodial parent and a visitor. The reason for this is that SSA Title IV Part D specifically rewards the states based on how much support they collect, matching up to dollar for dollar. This means that the money we all contribute towards OUR social security, is being funneled to the states. While there needs to be some incentive towards enforcing support in cases where a parent chooses to entirely leave the family, the following elements would make the law more just while making the sure that it really is set up with the interests of the children in mind.

Custody:

  • Shared parenting is the default regardless of prior arrangements, unless a parent does not want their share, or has a proven inability to do so (severe mental illness, substance abuse, violence etc…)
  • Anything less must meet the same burden of proof as criminal trials, as constitutional rights should only be able to be taken away in criminal cases. Contempt proceedings can trump those rights currently, thus anything leading to contempt must meet that standard.
  • Right of first refusal should be by default and irrevocable. Barring anything in paragraph 2, there should not be resources utilized to care for the kids if the other parent is available and willing.

Support:

  • Caps. No more than fixed percentage of income, and no more than a specified amount per child (whichever is less) as appropriate for the geographic region. A spouse is not a retirement plan nor an insurance policy.
  • Accountability. Child support should be audited to ensure that the parent is spending the money on the children.
  • Penalties must be addressed. License suspensions must be removed as the possibility of incarceration. Adding another mouth to feed in the prison system while removing an individual from the workforce does nothing to help the children nor the state. Those pathological enough to choose this alternative over receiving what support they do get, should not be the ones allowed to dictate their children’s future.
  • No payment in alienation cases. Should a parent be found to be alienating the other parent, support should be removed.
  • Income calculations must be capped at a 40 hour work week, exclude overtime, and based on actual income and not hypothetical income. Currently the law allows for courts to make up their own numbers without the need for any evidence.

Other Factors:

  • Penalties for false domestic violence/abuse accusations. This does not mean that every case where abuse is unproven has the tables turned on the other party, but should there be evidence (i.e. a recording of threats of false accusations) then the other party should serve and equal or harsher penalty for making such accusation.
  • Remove Title IV-D funding from sates not compliant with the basic outlines.
  • Substantially limit child support amounts in shared custody cases. Several states that do have shared parenting, have created child support guidelines that still maximize transfer of funds from one party to the other with the goal of collecting Title IV-D funding. Being divorced should not be a taxable source of revenue!
  • Reform family court procedure. An individual should be able to navigate this arena without the need for a costly attorney, therapists, expert witnesses, GALs, and many others. This alone will reduce a massive financial burden in our society, and pass that on to our children. A social worker should be appointed instead of a GAL. We do not need lawyers deciding what is best for children, but those who actually know mental health and families.
  • Jury trials. Currently the same judges who benefit from the Title IV-D revenue are the ones deciding the cases. This is a clear conflict of interest. An impartial jury would be removed from these incentives and best able to rule on the matter.

Before You Do ANYTHING

…read this first.

[Publisher’s Note: We are not attorneys nor should you consider this legal advice, just things that we’ve heard other parents say they wished they had done.]

It might have been years of torture, years of abuse, and despite everything you have tried it is still ongoing. No amount of marital therapy has fixed it, and it is getting worse by the day, more and more so in front of the children, who are now getting closer and closer to the day they will remember everything. You don’t want to leave them in that way. You beg and plead, try to reason, and are willing to give up and admit to anything just to get some peace in the house. Make any concession. But it doesn’t work. Nearly every night things are still back at square one, the only question is about what and where, not so much when. You start to understand it is over and you see an attorney. If you’re fortunate they will lay it out to you as it is, and you do some planning, but if you’re not, you’ll be given the false hope of fairness and justice. Do not fall for this trap. While occasionally some are fortunate and do make it out relatively unscathed, a larger percentage will end up far worse. Here are some terms and common traps. Consult a competent attorney for actual legal advice, but these are some things to consider when facing an abusive spouse likely to manipulate the process.

Do not disclose your intention to file for divorce.

Do not disclose when you are moving out.

Do not move out without the following:

  • Ample evidence of their behavior that is legally admissible.
  • Secure all financial documents and proof of assets.
  • Check for any siphoning of marital funds into other accounts.
  • Secure receipts for big ticket items.
  • Make some sort of a custody plan if you can. While a toxic ex will unlikely allow this to happen, make attempts via email so they can be clearly documented. In some states this will matter, in others it will not.
  • Do not allow the other parent to tell the children that you are moving out.
  • Do not move out if you can. Many states will treat this as abandonment, and it gives them the ability to say that you “ran out on the kids.”
  • If the other party is willing to leave (without the children) then let them.
  • If you move out, take the kids for overnights immediately. Until there is a custody order, the other party CANNOT keep you from your children.
  • Carry a recording device in case they want to try and falsify domestic violence reports. Disclose you have it going in a two party sate, make it plainly visible.
  • Tell your family and friends what is going on while it is happening. Do not allow the other person to get an edge up by painting you black before you have a chance to defend yourself.

The biggest takeaway here is that you will want to take the high road and not cause any more drama then warranted which is what is in fact–what is best for the kids. But if you are reading this then your cohort will likely not and you should be prepared for the worst. I would like to stress that not every divorce is like this but if you are here, the odds are that is where it is headed.

These are just some of the basics of how to stay away from the worst. Unfortunately many states allow for false domestic violence claims to be taken at face value (courtesy of VAWA) and once that happens you are facing a much bigger battle. The key is to be prepared ahead of time, that way should they choose to go that route you have their motive established in a legally admissible manner. It does not mean that a corrupt court will factor any of it in their decision, but it is the only thing that will stack the odds in your favor.