your opinion on these . . .

[hagatha]

Soc,

I have been reading about 2 seperate issues or proposals and am wondering what you think about the merits of each. Both have major impacts on the parents and children

First, the suit for the father to terminate his obligations to an as of yet unborn. I believe his argument follows the ideas in Roe-v-Wade. In as much as a woman has the right to decide to become a parent, or abort. A man should have the same choice to become a parent or walk away. Equal protection under the law and all that.

Personally I doubt this will ever work as it does go against public policy to have children supported financially by their parents.


Second is a new bill being proposed in NY by state assemblymen David McDonough. This bill would in effect notify the NCP of any and all police activity made to or about the CP's home. I assume this would then give the NCP the opportunity to petition for a change of custody based on the facts in the complaint.

While I agree with the premise I can't see how this would work effectively. Since the police see family problems as civil matters and don't usually interfere.

What do you think??


The Witch

[socrateaser]

>What do you think??

The constitutional issue is frivolous and will be tossed out of court faster than the speed of light.

The 14th Amendment to the Constitution provides that government treat all persons similarly by government in similar circumstances. Private action does not trigger protection under the 14th Amendment.

A pregnant woman is a private, rather than a government actor. Thus, the man's claim that he is being denied equal protection by not being permitted by government to disaffirm paternity in advance, is false. Until the child is born, there is no government action, because the man is not subject to a support obligation, After the child is born, the man is the father, and just like every other father, he has a duty of support imposed by the government.

At no time in the above process is the man treated differently by the government from any other man/father. Therefore, there is no equal protection claim.

The man could possibly argue that it is fundamentally unfair under the due process clause, for him to not be permitted to disaffirm paternity, but there is no recognized fundamental right so rooted in the traditions and conscious of the People, that suggests that fathers be able to disaffirm there paternity, and which would require that the government show a compelling interest advanced by the least restrictive means available. Thus, the court would require the man to prove that his right to disaffirm paternity is not reasonably related to any governmental interest.

This is a burden that the man cannot meet, because it is clearly obvious that there is a legitimate interest in the welfare of a future child having support from both parents. Therefore, a substantive due process challenge will also fail.

Those are the only constitutional claims available, based on the proffered theory, and they are both quickly disposed of.

However, I believe that there is one legitimate constitutional claim in this area of family law:

1. Parents have a fundamental right to custody and care of their children.
2. A parent who is willing and able to maintain such care in a direct manner, even though the parent does not live with the other parent, does not impair his/her child(ren)'s interests, and does not breach his/her duty of support.
3. If the child's interests are not impaired, and no duty is breached, then the court has no compelling interest to assert or authority with which to void/modify the parent's custodial rights, or impose a financial obligation.
4. Therefore, the court cannot void/modify said custodial rights or impose a financial obligation.

That's it. Would a court uphold this simple constitutional syllogism? I doubt it. Most judges are terrified at the prospect of doing anything to upset the present family law system.

But, I stand by it as a legitimate legal theory that should be enforced by the courts. Parents who are willing to continue to provide direct support, care and custody of their children after divorce, should not be deprived of the right by the courts, and if either parent attempts to frustrate the other parents rights, that parent should be sanctioned for interfering with the other parent's rights as a prima facie tort.

Obviously, if a parent is unwilling to provide direct care, then the court has a compelling interest in the child's welfare and should be able to impose a financial obligation to compensate for the parent's breach of the duty of support.

OK, enough on this issue, because it raises false hopes that will never likely be achieved.

As for the proposed bill in NY which you describe, I don't see an issue with it, and actually I think it's quite reasonable that the police inform the NCP of any criminal activity occurring in the CP's home. This is certainly in the child(ren)'s best interests.

As for whether the women's rights groups will rise up to quash this little action as invasion of the CP's privacy (which it isn't, but that's what they'll argue), I'm sure that the bill will be attacked as just another attempt by men to control women. And, it will probably go down in flames as too controversial and likely to lose election votes for any politician who votes for it in the state legislature.