Shat  terd

Men 

The hidden half of domestic violence

How to have eternal life

Attention advocates for families:

From Mr. Bryan Holland:

In light of the email we received regarding the California Father's day constitutional challenge, you may be interested in a similar constitutional challenge in Wisconsin. Here is a copy of a recent article regarding this Wisconsin challenge. This article is to be published in "Today's Dads", the newsletter of Wisconsin Fathers for Children and Families. In addition to these challenges, we are also aware of significant challenges in Tennessee, Georgia, and Colorado.

There are fathers all over the United States that will not get to see their children this Fathers day, because of the injustices done to them by the family courts. The media is quick to publish stories of child support collection problems; however, rarely do you hear stories of the thousands of fathers in this nation, that want to be involved and are prevented from doing so.

Thanks,
Bryan Holland
Wisconsin Fathers for Children and Families
Vice President - Legislative Affairs
*contact information at end of article*
 
Wisconsin Court of Appeals to decide soon if equal placement is a fundamental right

Most members of Wisconsin Fathers for Children and Families want Wisconsin family courts to equally support their parental responsibilities and rights. Instead, court orders or coerced stipulations deprive many members of equal placement with their own children.

While most legal professionals think the present system works just fine, they cannot see, and/or don’t care about, the emotional and financial damage the existing legal process creates for many families. Many don’t seem to care about the impact of their decisions. After all, it does not involve their children or money and they don’t have to live with the consequences of their decisions.

Some fathers, like WFCF member Robert Moore, have argued in court that, fit parents have fundamental civil and constitutional rights and responsibilities to parent their own children equal to the rights enjoyed by the children's other parent. So when a therapist, GAL, or court counselor recommends that the children live predominantly with one parent, or a court orders an involuntary unequal placement, when both parents are fit, this is unconstitutional. The judge in Moore's case dismissed the brief, which was written by a prominent Madison civil rights attorney, as frivolous, without explanation.

Most family law attorneys refuse to take this approach. In most counties, family law professionals are a very close knit group. It is a lucrative business for many of these professionals and no one wants to rock the boat that keeps their businesses thriving.

Trial judges, who are often also a part of this close knit group, usually ignore or dismiss this request as being frivolous when it is raised before them, as in Moore's case. In cases where this issue was raised on appeal, it has been brushed aside, ignored or not addressed, often because it was not properly raised at the trial court level.

The issue of whether equal placement is a fundamental and statutory right is currently before the District I Court of Appeals. It was extensively briefed, and fully raised at the trial court level in the case of Jan Raz v Mary A.Brown. A decision on this issue is expected this summer.

The brief submitted by Jan Raz, currently also the president of WFCF, argues that in placement disputes between two fit parents, "each parent has a fundamental right to assume equal periods of placement of the children, unless there is credible evidence that a parent is not fit, that this placement would be harmful to the children, or that circumstances of the parties do not allow this. This right is fundamental, not one that parents must win as a result of a lengthy, intrusive and costly legal battle, or to compromise in order to reach a stipulated agreement to avoid such a battle."

The brief cites the due process and equal protection provisions of the 14th amendment of the United States Constitution and United States Supreme Court decisions as legal authority for such a conclusion. It includes ruling of the United States Supreme Court that:

The interest of parents in the care, custody, and control of their children - is perhaps the oldest of the fundamental liberty interests recognized by this court.
The Due Process Clause does not permit a state to infringe on the fundamental right of parents to make child-rearing decisions simply because a state judge believes a 'better' decision could be made.
The State cannot choose means that unnecessarily burden or restrict constitutionally protected activity.
If there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘‘less drastic means."
When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal protection and fundamental fairness are satisfied.
In light of these U.S. Supreme Court rulings and recent changes in Wisconsin laws, Raz argues that "The state cannot allow one parent, a mediator, guardian ad litem or a court to minimize, obstruct or interfere with the other’s equal parental role. Wisc. Stat. 767.045(1)(a) 2, 767.045(4) , 767.11(10), 767.11(14) , 767.24(4)(a)2, 767.24(5), and 767.325 (1)(b) allow the state to intrude into the private realm of the family without first requiring a threshold determination as to the unfitness of a parent or that a parent’s placement proposal which maximizes placement of the child with both parents would be harmful to the children. These statutes also have no safeguards that the mediator, placement study evaluator, guardian ad litem or judge must first and foremost strive to support the equal fundamental rights of both parents. Thus they are unconstitutional."

The fact that Wisconsin Attorney General’s office declined the opportunity to defend the constitutionality of these statutes in the Raz case - suggests support for this conclusion.

While Milwaukee County Circuit Court Judge Michael Goulee ultimately awarded Raz equal placement of his children, the application of these statutory provisions resulted in a legal battle that lasted more than two and a half years, deprived Raz of this right during this period of time, and cost him more than $60,000. And it probably cost his ex-wife an additional $60,000, or more.

"There was no justifiable reason for Wisconsin’s legal system to be so costly and intrusive for two fit parents who live in the same school district to get equal placement," WFCF member Roger Beers points out. "What happened in this case is a violation of Article 1 SECTION 9 of the Wisconsin Constitution which states "Every person ....... ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay ...."

Raz is optimistic that the appeals court will address the fundamental rights issue in a way that supports the equality of fundamental rights and drastically reduces the unnecessary child placement litigation and resultant costs to families and taxpayers in future cases. However, he urges others to continue to raise this issue in their own cases with court commissioners and trial judges. "The courts cannot avoid this issue forever," he notes. "Sooner or later Wisconsin legal professionals and courts will have to stop being in contempt of fundamental rights and the equality principles protected by the U.S. Constitution and Supreme Court decisions."

To make it easier for others to understand and raise the legal issues in their own cases, a copy of Raz’s brief submitted to the appeals court regarding this issue is available on the internet at http://www.wisconsinfathers.org/prbrief.pdf . "This issue must be raised at the beginning of every placement dispute by all fit parents that want to have an equal parental role with their children," Raz said. "There is no reason for Wisconsin courts to continue to force parents to fight a legal battle to win something that is a fundamental right of all parents ..... something that Wisconsin courts have no right to deny us, without a compelling reason. According to the U. S, Supreme Court, the best interest of the child criteria is not a sufficient legal basis to interfere with a parent’s right to raise his or her child."

======================
Bryan Holland
Wisconsin Fathers for Children and Families
Vice President - Legislative Affairs
PO Box 1742
Madison, WI 53701
http://www.wisconsinfathers.org
608-ALL-DADS
To contact me directly:
work: 608-329-4300
home: 608-329-3673
e-mail: bryan@computerheroes.com
1808 16th Avenue
Monroe, WI 53566
 
 
Here are four other articles on this issue:
 

"Joint Custody as a Fundamental Right" by Ellen Canacakos,
Arizona Law Review, 23(1981):785-800.

"Joint Custody: Constitutional Imperatives" by Holly L. Robinson,
Cincinnati Law Review, 54(1985):27-65.
 

"Lagging Behind the Times: Parenthood, Custody, and Gender
Bias in the Family Court" by Cynthia A. McNeely, Florida
State University Law Review, 25(1998):891-956.
http://www.law.fsu.edu/journals/lawreview/issues/254/mcneely.html
 

"Parental Rights and Due Process" by Donald C. Hubin,
Journal of Law and Family Studies, 1(1999):123-150.
http://www.pacegroup.org/prdp.pdf

This information provided by

Maintained by Caring Dad

Please Vote for this site by clicking above

JUNE is Domestic Violence Against Men Awareness Month