Often people emerge from these ordeals bewildered and in disbelief by the lack of remedies available to protect oneself from having their rights violated — due process denied — access to recourse (justice) unattainable — and at the mercy of courts that can impose countless penalties, fees, fines and utilize mechanisms that create a form of “legal” extortion — using children and financial ability (or rather inability) as leverage against a mother or father.
Abridging Equal Protection
Upon entering a hearing — filing a response — displaying evidence meeting the burden of proof — a parent can attain a false sense of security feeling that honesty is the best policy in family court. This often unfolds in instances where parents take the approach that exposing the shortcomings in the courts application of law and the abundant disregard for professional conduct and ethics standards will safeguard their rights as a parent and litigant. After all, why shouldn’t they think this would be the case since many are of the belief that they are protected from judicial misconduct and legal abuses — having faith that the United States Constitution has their back.
All things being equal, this very well might be the way things would work out — but this is Family Law where justice is not blind — courts presiding over divorce and custody are not neutral — abuses of power shielded by judicial immunity are not often checked, whereby culpable institutions and parties are not held accountable.
“In exercising judicial authority, the court is supposed to identify the private rights at stake in the proceedings, the state’s interests in the proceedings (executive’s policy initiative) , determine the risk of error (costs of getting it wrong), then determine what procedure must be followed to appropriately protect the private rights at issue in the proceeding before making a determination (constitutional guarantees). This is the procedure that the Supreme Court has established and applied to everything from employee termination to multi-billion dollar class-action suits. In family law, every single state has twisted, distorted, and outright perverted this process. Because there is no executive involvement, in a custody dispute between fit parents, to provide the state’s interests — it is left up to the court to determine the specifics of the state’s interests — not because there should be a state interest but because the state is forcing itself into a private issue…The question becomes, how can the court be a neutral and impartial decision-maker when the court crafts the specific policy implementation?”
Immune From Accountability
Examining many of these ordeals it is often jarring to observe how laws, constitutional rights and hard evidence are removed from sight and intentionally ignored by courts. It is even more striking in instances where parents (trending more to those that represent themselves as pro se litigants) recognize and challenge these issues by often citing and illustrating the fraud on the court — found in abundance in many custody and divorce cases.
Once these matters reach a certain juncture and cross a threshold where they start exposing the cracks within a courts integrity and the often improper adjudication of a case — it’s no longer in the best interest of the court (and its players) to look out for the rights and interests of a child over that of the state — not to mention the parent.
“Absolute Judicial Immunity, the Supreme Court has determined, means that judges may intentionally violate the constitution and do so with malice towards a litigant — with impunity. They cannot be held accountable by the law in any way. I have seen this in action first hand many times and have heard countless horror stories from parents who have gone through the family law wringer… The problem with absolute judicial immunity in family law is, that, if parents raise their constitutional rights in a case and it angers a judge, that judge can punish them with complete loss of their children and huge fees for child-support, alimony, GAL, Amicus Attorney, and other attorney’s fees. I have known parents who have had orders to pay more monthly in combined fees than that parent had ever made in a single month, even with overtime pay. The judge knew exactly what he was doing. It was addressed in open court. The judge did it anyway and the state appellate court rubber stamped it on appeal without any comment at all in their opinion. It was a clear case of corruption with no recourse or accountability…I personally believe that judges should have no more than limited immunity. Judges argue that nobody would be a judge if judges didn’t have absolute immunity. I don’t believe it. Police don’t have absolute immunity and they take on difficult and dangerous jobs. Heads of executive agencies in states and the federal government only have limited immunity and there is no shortage of people vying for those positions.” —RON B. PALMER
Neutrality Fails In Family Law
Supreme Court Justice Anthony M. Kennedy once said in referring to neutrality that,
“The law makes a promise: neutrality. If the promise gets broken, the law as we know it ceases to exist.”
Not long after making that comment, Justice Kennedy went further in an interview expanding on what he meant saying,
“You have to remember that we live in a constitutional democracy, not a democracy where the voice of the people each week, each year, has complete effect. We have certain constitutional principles that extend over time. Judges must be neutral in order to protect those principles. . . There’s a rule of law, [and it] three parts. One: the government is bound by the law. Two: all people are treated equally. And three: there are certain enduring human rights that must be protected. There must be both the perception and the reality that in defending these values, the judge is not affected by improper influences or improper restraints. That’s neutrality.”
While neutrality in family law is missing in many areas, one obvious one is where you find judges who are elected as opposed to being appointed — this tends to be the case with many courts deciding matters of child custody and divorce.
Campaign contributions to judges almost always come with expectations — corrupting the ability of the court to make unbiased rulings.
“The law is a profession and lawyers are committed to uphold the constitutional system… If an attorney gives money to a judge with the expectation that the judge will rule in his interest or his client’s interest, that is corrosive of our institutions.” —JUSTICE KENNEDY
When you have Judges in these courts free to run amok under the cover of immunity with no real oversight or checks and balances — the notion that laws are applied neutrally and administered in a manner consistent with constitutional rights and protections afforded to individuals is a fallacy.
More from Stephen Krasner here on GMP:
After divorce, time is the cloud that hangs over every aspect of the father-child relationship.
The impact doesn’t discriminate: Father, mother, son, daughter, grandpa, grandma, cousin, aunt, uncle—All can be ERASED.
Fathers’ rights advocate Stephen Krasner sheds light on the corruption in family court environments and the industries stemming from them.
This post was originally published on the author’s Huffington Post blog and is republished here with his permission.