The Family Rights Act - (rev g, 8/1/07), changes in red

The Family Rights Act - (rev g, 8/1/07), changes in red
(see comments submitted, view previous revision)

I. AN ACT:

1. to recognize:

   1. that the current patchwork of Family Law in the United States has become a tragedy in which both parents and children are victims,

   2. that one of the most basic Civil Rights of any person is to associate with their children,

   3. that the vast, vast majority of mothers and fathers are good people and good parents trying to do the best they can,

   4. that most practioners in the present "system" mean well but are operating in a difficult environment where there is great administrative power,

   5. that the "best interests of the child" are served by recognition of these rights and regular and equal contact with both parents.

2. to enforce some of our most basic Civil Rights:

   1. the Constitutional right of both parents to associate equally with their children and participate in their lives free of government interference ,

   2. the Constitutional right of family members to be secure in their homes,

   3. the Constitutional right of parents to change employment or careers throughout their lives,

   4. by applying the traditional protection of a jury and proof beyond a reasonable doubt when any of the preceding freedoms are challenged

   5. the standard of conduct and proof required for a parent to maintain an equal relationship with their children should be no more for a parent who is experiencing a divorce from their spouse -- than for a parent not experiencing a divorce.

3. to encourage:

   1. the American people to realize the birth and raising of a child is an important decision that is not to be taken lightly and which will place them (whether they like it or not) in proximity to the other parent for many years.

   2. the States to institute programs in parenting and marriage  and to encourage attendance in pre-marriage classes before a Marriage License is granted.

4. to provide:

   1. that the provisions of this Act become the "default" agreement between individuals before they form a family,

   2. that the States and/or individuals are free to institute other agreements to replace this Act, but the acceptance of those provisions must require free will acceptance by the part of any individual to be affected,

   3. for the involuntary termination of the preceding rights only when the family member is found unfit to parent  -- with the same standard of jury protection and speedy trial,

5. to confer jurisdiction upon the district courts of the United States to provide injunctive relief,

6. to authorize the attorney General to institute suits to protect such rights

7. and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Family Rights Act".

II. DEFINITIONS:

1. The term "parent" applies to both the biological father and mother of a child. If the biological parent is deceased or has taken action to leave the child for adoption --it then means the adopted parent(s).

2. The term "family member" means either a child or parent.  The term applies to parents who are unmarried, married, or divorced.

3. The term "home" means a living area which is either owned or rented by the individual.

4. The term "Unfit to Parent" means to be found guilty of being a demonstrated serious threat to the safety of their child with malintent. This is a criminal accusation, and a person accused has the protection of a Jury.  The burden of proof is on the prosecutor to show this person has engaged in conduct of the type, such that if similar conduct  were done by any other parent in the community, they would be found guilty of the same crime.

5. The term "attempting to escape support" means a willful attempt by a parent to reduce their Child Support obligation by reducing their income primarily for the purpose of reducing the payment. This is a serious accusation, and a person accused has the protection of a Jury.

6. The term "speedy trial" means that if a parent is charged with misconduct which  results in a "temporary" order either limiting access to their home or to their children -- they have the right to be brought to trial on the charges within 60 days.

7. The term "Equal Parenting" means that by default parents alternate physical custody of their children on a weekly basis.  They are both 'legal' custodians of the children and both need to be kept informed with 'tie breaker' authority alternating on an annual basis.

III. BACKGROUND:

This Act is drawn in the light of the following sections of the U.S. Constitution:
Seventh Amendment - "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . "
Ninth Amendment - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people … "
While the framers of the Constitution did not  include "matrimonial" issues specifically within these amendments, divorces were not then considered matters within the "common" law, but rather church law - we consider the present day frequency and ease of Divorce proceedings (and their devastating effect on families). This "evolution" have would have caused the "founding fathers" some concern. Especially when considered with those words from our:

Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."
Americans have always held to the tradition that "Liberty" and "Life" rights deserve our greatest protections. In response to recent government activism over the past 40 years, we must now clearly recognize our right to associate with our children, to be secure in our homes. What greater and purer "Happiness" can there be in life than the relation between parent and child.
Who among us, when faced with a Court proceeding in which we felt a Judge or Government official  was about to unjustly limit contact with our children - would not want the safety valve of a jury?
Who among us would not want a presumption we be allowed equal contact with our children?

The right to the company of one's children/parent  is a right preserved to the people.

IV. IMPLEMENTATION

What the Act 'is not' - It is important to clarify what the Act is not intended to be.

1. It is not meant to force parents to live in the same home, or to require the action of a jury before parents can separate and live apart.
2. It is not meant to install a jury system in Family Court rooms in those jurisdictions where 'Family' Courts are separate from the Criminal system.
3. It is not meant to require a jury proceeding or to require Equal Parenting if both parents agree to an alternate arrangement.

What the Act 'is' - A brief summary of provisions follow and then some examples of implementation.

1. It does establish basic protections and default arrangements when a parent finds their relationship with their child threatened by other family members or a government agency.
2. It does require speedy trial if a temporary order interferes with the parents relationship with their child.
3. It does require a Criminal indictment and conviction (with the protection of a unanimous jury verdict) of a parent of being a demonstrated threat to the safety of their children before a 'Family' or other Court can impose any terms other than Equal Parenting (Unfit to Parent).
4. It guarantees equal physical and legal custody over children between parents in cases where agreement cannot be reached on other arrangements.

The following scenarios are examples reflecting adherence to the goals of this Act.  Unless a parent is found unfit -- the relationship with the children continues unbroken. (In the Draft these are to be seen as examples of what would really happen, your input is valuable in making changes/updates as part of the process.  Wording is very crucial).

1. There is a family living in a home with children.  One parent decides to initiate a Divorce Proceeding against the other. Regarding Physical Custody:
   1. Other than voluntarily, the other parent cannot be forced to leave the home  unless they are found "Unfit to Parent". They have the right to Jury protection if such a charge is brought.
   2. If both parents are seeking divorce one may be required by the Court to leave the home.
   3. Voluntarily, either of the parents may leave the home and start residence elsewhere in the same locality (within app. 30 minutes driving).  The children will continue at the school of the original residence and will spend app. equal time at the homes of both parents. The standard arrangement will have the child spend alternating weeks with each parent.
   4. The preceding paragraph applies even after a Divorce is granted.
   5. If a parent decides to move farther away the children will not be moved unless the other parent is "Unfit to Parent". Special emphasis will be given for the children having vacation time with that parent.
2. Regarding Legal Custody. Unless a parent is found "Unfit to Parent", there shall be JOINT legal custody of children between the parents. Both parents shall be aware of what is going on in their children's lives.  If there is disagreement regarding a decision which must be made:
   1. One parent will have the "tie breaking" vote for the year. That authority will alternate each year.
   2. If the other parent wishes to pursue the decision in Court, mediation will be required first.
3. There is a family living in a home with children.  One parent makes an accusation of domestic violence (between parents) against the other:
   1. Other than voluntarily, the other parent cannot be forced to leave the home unless they are found guilty of Criminal misconduct. They have the right to Jury protection if such a charge is brought and to speedy trial.
   2. Any law which provides for "automatic" arrest, without requiring  independent corroborating evidence for the responding police officer, violates this Act.
   3. In and of itself, a charge or conviction of "Domestic Violence"  against another parent does not make someone "Unfit to Parent".
4. There is a family living in a home with children.  One parent makes an accusation of domestic violence, sexual abuse by the other parent against the children:
   1. Any law which provides for "automatic" arrest, without requiring  independent corroborating evidence for the responding police officer, violates this Act.
   2. Other than voluntarily, the other parent cannot be forced to permanently leave the home  unless they are found guilty of such  misconduct. They have the right to Jury protection if such a charge is brought and to speedy trial.
5. There is a separated family and one parent was found 'Unfit to Parent". Regarding financial support of the children:
   1. The amount of support paid may be based on both real assets and income as  reported in  Federal Tax Returns.  The use of "imputed" income is not allowed  unless the person is found to be guilty (by a Jury) of attempting to escape support.
   2. A parent is always free to change their job and the Support Payment must be adjusted to reflect actual income (and may be adjusted retroactively and slowly corrected).
6. A finding of "Unfit to Parent" is a severe finding and should be infrequent.  This is the standard to be used by the Jury before contact between parent/child is limited in any way [we welcome your comments on the DRAFT.  This is the crucial item and must be defined well]:
   1. All parents can be a little better or improve in their skills (this should NOT reduce their time with their children). The standard is not to be applied to just parents going through a divorce, but to all parents in the community.  Their are a wide variety in parenting styles in our nation.
   2. We would hope States could offer parents optional "skills" classes in different areas of child-rearing.
   3. A life threatening injury requiring medical attention delivered with mal intent is included.
   4. How/should you quantify "mental abuse"?
   5. It is NOT based on predicted conduct, but actual severe conduct.  It also includes the elements of intent to harm.  Consider the following:
      1. Parents who smoke - we know second hand smoke is a clear health threat.  Imagine parents who both "smoke like chimnies".  They are a threat to their children, but their is no intent to harm.
      2. Religious convictions - there are communities of Amish/Mennonites (among others) who do not believe in certain types of medical treatment.  Withholding treatment would not be considered an intent to harm.

V. Unsupported Implementations & Rationale

The following implementation ideas were not supported, brief rationale is given:

1. "Having Juries would slow the system down to much!" - This has not been proven at all.
   1. This same argument would probably be made against our criminal justice system -- but actually it encourages a fair decision and settlement. Any suspected criminal who is presented with a "plea" to avoid trial can make the decision to accept the punishment -- or demand a trial and have his accusers prove their case.  In Family Law, once a Judge feels a parent should be separated from children -- there is little hope.
   2. With a clear standard of "Unfit to Parent" -- most of the petty accusations that really do bog the system down would be dropped.
2. "Let the child decide who they want to live with is -- it is their right"
   1. None of us had even the smallest say in deciding who our parents were. Adults have the great responsibility and right in determining who they will share parenting with. While they are children they have a "right" to contact with two parents.
   2. We don't allow children to cast a vote for President (as intelligent, well read, and politically involved as they may be).  Do we let them 'cast' an even more important vote?
   3. It is simple human nature for an adult going through divorce to place the primary "blame" on the other spouse.  It is also natural for them to seek affirmation from their friends (how many of us have had our "ears talked off" by someone describing a bitter divorce). Unfortunately, it is also natural to expect such an adult to attempt to "convince" their children of the same thing.
   4. With older teenage children -- how many of us would be tempted to play one parent off the other in an attempt to gain extra freedom or privileges?
3. "Custody decisions will be based on the Primary Caregiver"
   1. Whatever parent happens to have the ability/desire to stay with a child at home should not have a preference over the one pursuing a career at that time, outside the home.
   2. Both parents have valuable contributions to make to the child.  The parent/child relationship is dynamic and changes as both grow in the relationship, and to the benefit of both.  This is consistent with appreciating the basic Civil Right of parents/children to associate.
4. "Standards of evidence should be relaxed for Family Custody matters.  There just aren't enough facts some times..."
   1. This is probably the greatest reason for the tragedy of the present system.  The overworked staff, lawyers, and Judges try to make critical decisions -- and they don't have enough time or facts -- and sometimes not even the desire.  They are tired & overworked. It becomes a "job", and sometimes you make mistakes, get a little callous, start to form biases.  This is why there are rules of evidence. This why the Nation's founders installed the jury system.  The jury requires the "system" to prove to people "off the street" that it can justify its claims.
   2. The criminal "rules of evidence" are used to prevent abuse of the system.  They recognize that people  lie to get what they want. The motivation to lie is certainly present in a Divorce. It is very easy to rationalize pure fabrication or dramatization -- as long as you don't really have to prove anything.  When just allegations are rewarded, you get more allegations.
   3. We recognize that sometimes there could be a real problem, but we just don't have the proof "beyond a reasonable doubt" necessary to take action.  We do much more harm by allowing people to play a "hunch" or "suspicion" and destroy a family.
5. "We need more scientific studies on this..." -- It is not uncommon to see various statistics presented as justification for Family Law Reform, e.g. 63% of children raised in single parent homes grow up with this problem, OR, you get comparisons of the effectiveness of men versus women as parents!!!!
   1. This is about your Civil Rights to have a relationship with your children. We are not talking about a technical issue of road construction or fresh water management.
   2. Imagine "modern sociological studies" done before the Civil War on the issue of whether the slaves should be freed? "... We really are concerned about their physical well being and that of their children. To release this great mass of people all at once would be fool hardy. Some of them can't handle freedom, their children would starve, what are they going to do for work? Maybe a phased approach would be best, we'll release some of the more educated ones (after they pass some tests) and take it slow with the rest." (We might still have slavery now!)
   3. Please remember our criminal law system, you are presumed innocent until proven guilty. Even if 80% of teenagers picked up by police are eventually found guilty -- would you just want to remove the "formality" of a trial and just find everyone guilty?
   4. Consider the recognition and protection of our most basic right to associate with our children. The slave had a right to immediate freedom, and so do we.